Poland Escalates Fight With Top E.U. Court Over the Rule of Law

European Court of Justice

Poland has esca­lated a six-year struggle with the European Union over the rule of law after the country’s constitu­tional court ruled it did not have to comply with an order from the bloc’s supreme court over its oversight of judges.

The decision by the Polish court on Wednesday followed an order by the top E.U. court, the Euro­pean Court of Ju stice, to suspend a disciplinary “chamber” that crit­ics say has been used by the ruling Law and Justice рапу to intimi­date judges not to its liking. Po­land’s top court said that the Euro­pean court, which is based in Lux­embourg, did not have the power to impose such orders under Po­land’s Constitution.

On Thursday, the European Court of Justice said that the sys­tem of overseeing and disciplining judges in Poland, set up by the rul­ing party, was not compatible with E.U. law and that its impartiality and independence from political interference cannot be guaran­teed.

If Poland does not comply with the E.U. ruling, the European Commission, the bloc’s executive, can ask the court to impose daily fines. The Commission considers Poland’s actions to be a violation of the treaties that bind the bloc to­gether and that guarantee an in­dependent judiciary.

Poland’s government has ar­gued that the disciplinary cham­ber, which was set up in 2018, was necessary to purge a corrupt sys­tem that includes Communist-era holdovers.

3 The head of Poland’s parlia­mentary commission for justice, Marek Ast, criticized the Euro­pean court’s ruling, saying that the organization of justice sys­tems should be the responsibility of E.U. member states. “The standards that E.C.J. is drawing from the E.U. treaties are not in line with Poland’s Constitution,” he said, referring to the court.

Zbigniew Ziobro, Poland’s jus­tice minister, told reporters that the court’s decision was a political one that segregated states “into better and worse ones.”

In another battle over the rule of law, the Commission said on Thursday that it was starting sep­arate legal proceedings against Poland and Hungary over alleged violations of the rights of L.G.B.T.Q. people. The Commis­sion acted in response to Hunga­ry’s recent law banning the depic­tion or promotion of homosexuality to those under 18 and to Po­land’s so-called L.G.B.T.-ideology free zones.

“Equality and nondiscrimina­tion are core principles in the E.U, enshrined in its treaties and in the Charter of Fundamental Rights,” the Commission said in a state­ment, explaining the legal action. It added that discrimination against L.G.B.T.Q. people per­sisted throughout the bloc, “which is why the E.U. has to be at the forefront of efforts to better pro­tect” their rights.

Critics have denounced Hunga­ry’s law as an assault on funda­mental rights, but with key posi­tions throughout the country’s high courts packed with Prime Minister Viktor Orban’s loyalists, hope for domestic recourse is low.

The issue has allowed Mr. Or­ban to sow division in the unprece­dented, though fragile, six-party coalition challenging his leader­ship in next year’s national elec­tion. And he has used interna­tional criticism of the law to frame criticism of Hungary as being rooted in a culture war waged by cosmopolitan leftists and liberals.

Poland’s Law and Justice party is similarly using issues of iden­tity, nationalism and resistance to a more liberal European Union elite to prop itself up against grow­ing opposition to its long rule. That opposition has been bol­stered by the decision of Donald Tusk, a former Polish prime min­ister and former president of the European Council, to return to do­mestic politics in an effort to de­feat Law and Justice.

Poland and Hungary have long been at loggerheads with Brus­sels over what critics consider the chipping away at the pillars of healthy democracy, including the independence of the judiciary and the news media, as well as the rights of minorities. Although the Commission has begun several le­gal actions in an attempt to disci­pline Budapest and Warsaw, its scope of action has been limited, the court cases take considerable time, and Poland and Hungary have faced few consequences.

Hungary has always bent to the rulings of the European Court of Justice, which is the highest au­thority in the interpretation of E.U. law. But now Poland appears to be challenging the court s su­premacy over what it claims is na­tional law.

The issue, though, is broader than the actions of two countries that some consider to be “illiberal democracies.” More problemat­ically, Germany’s supreme court, which interprets its Constitution, known as the Basic Law, has also questioned the supremacy of the European Court of Justice. Last year, for example, it argued that the European court had exceeded its competence to rule on the le­gality of issuing European bonds.

The Commission and the Euro­pean court responded harshly, with the court saying that it alone “has jurisdiction to rule that an act of an E.U. institution is contrary to E.U. law.”

Last month, the Commission began an infringement procedure against Germany over the pri­macy of European court rulings over German ones. That came af­ter the German constitutional court delayed the government’s approval of a European Central Bank bond-buying program, even though it had already been ap­proved by the European Court of Justice.

The sharpening of the dispute with Poland and Hungary comes amid t he disbursement of the $857 billion E.U. coronavirus recovery package, which, after intense haggling, has been tied to adherence to rule-of-law standards, like an independent judiciary and trans­parency. The Commission has still not approved the spending plans of Poland and Hungary, which is a necessary step for the payout of the funds, because of concerns over corruption and rule of law.

The Commission said on Thurs­day it was analyzing the ruling by Poland’s constitutional court “also in the light” of the country’s recov­ery plan. “The proper implemen­tation of the national recovery plans requires that member states have in place management, control and judicial supervisory systems that can guarantee the proper use of E.U. funds,” said Eric Marner, the chief spokesman for the Commission.

Rule of law and the recovery fund were among the issues dis­cussed on Tuesday by Poland’s prime minister, Mateusz Morawiecki, and Ursula von der Leyen, the Commission’s president. Ms. von der Leyen described it on Twitter as a “good exchange.”

But Poland’s Riling coalition is internally divided, and Mr. Morawiecki is under domestic pressure over the national corona- vinis response and the prospect of losing E.U. funds.

Members of the European Par­liament and legal experts, who have been more outspoken on rule of law issues than has the Com­mission, say that recent actions by Poland and Hungary are a valid reason to suspend the recovery funds.

“Considering the extent of the rule of law breakdown we are wit­nessing in Poland, the conditional­ity regulation could be immedi­ately activated by the Commis­sion,” said Laurent Pech, a profes­sor of European Law at Middlesex University in London.

Some suggest that the latest rulings may prompt Poland to Consider leaving the European Union, known as “Polexit,” but that is considered far-fetched, giv­en how popular European identity and financial support are among a majority of Poles.

“Polish authorities are now in fundamental breach of the basic E.U. membership conditions,” said Mr. Pech,calling the ruling by the Polish court “an acceleration of the Polexit process.”

Manfred Weber, the head of the powerful center-right European People’s Party grouping in the Eu­ropean Parliament, tweeted: “This should serve as a warning to all Poles who are truly pro-Euro- pean and want a European future for their children and grandchil­dren: your government is clearly on the path to «Polexit.”

Terry Reintke, a Green legisla­tor, wrote: “Too much time has been wasted. We need a deter­mined Commission to finally stand up to this.”

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