The European Commission has launched its latest infringement proceedings against Poland. It believes that the Polish constitutional court violated EU law by recently declaring parts of the EU treaties incompatible with Poland’s constitution.
The commission also expressed doubts about the independence and impartiality of the constitutional court itself. It argues that the Polish government’s appointment of judges “in breach of fundamental rules” means the court can “no longer ensure effective judicial protection”.
Today’s decision marks the latest salvo in a long-running dispute between Warsaw and Brussels over the rule of law. The conflict has resulted in Poland seeing billions of euros in EU funds withheld as well as facing daily fines that have so far totalled almost €100 million.
In its statement today, the commission says it has “serious concerns with respect to the Polish Constitutional Tribunal and its recent case law”. The tribunal, known by its Polish initials TK, is Poland’s highest constitutional authority.
Since 2016, it has been widely regarded as under the influence of the ruling national-conservative Law and Justice (PiS) party. Its chief justice, Julia Przyłębska, is a close personal associate of PiS chairman Jarosław Kaczyński.
In launching proceedings against Poland, the commission cites two recent rulings by the TK, both of which favoured the Polish government in its ongoing conflict with Brussels over the rule of law.
In July, the TK found that interim CJEU orders relating to the judiciary violate the Polish constitution. It was the first time that provisions of EU treaties had been declared unconstitutional by the TK, and effectively gave the government a green light to ignore certain orders from the Court of Justice of the European Union.
In October, the TK ruled – in a case brought by the prime minister – that parts of European law are inconsistent with the Polish constitution, which takes precedence over them. “EU bodies act outside the powers conferred on them by the treaties,” said Przyłębska when announcing the judgement.
In its statement today, the European Commission argued that the TK had “disregarded its obligations under EU law” and issued its two rulings in breach of the Treaty on European Union, specifically its guarantee of the right to effective judicial protection.
Moreover, the commission said that it has “serious doubts on the independence and impartiality of the Constitutional Tribunal and considers that it no longer meets the requirements of a tribunal previously established by law”.
To support that position, it pointed to a ruling earlier this year by the European Court of Human Rights (ECHR) – which is not an EU body – that the TK is not a “tribunal established by law” because it contains a judge illegitimately appointed as part of the current government’s judicial policies.
After that ruling, the TK itself then declared that part of the European Convention on Human Rights that guarantees the right to a fair trial is incompatible with the Polish constitution. That effectively meant that the ECHR cannot question the status of certain Polish judges.
Today’s announcement by the commission was immediately condemned by figures from Poland’s ruling camp. Sebastian Kaleta, a deputy justice minister, called it “an attack on the Polish constitution and our sovereignty”.
“This is no longer a legal dispute, it is an attack on the Polish constitution and the foundations of Polish statehood,” tweeted former prime minister Beata Szydło, who is now a PiS MEP. “The European Commission wants to deprive Poland of the prerogatives of a sovereign state.”
The current prime minister, Mateusz Morawiecki, warned that it was another sign of “bureaucratic centralism from Brussels progressing”. His government has repeatedly argued that EU institutions are overstepping their remit and illegitimately “interfering” in Poland’s domestic affairs for political reasons.
Komisja Europejska rozpoczyna postępowanie przeciwko Polsce, negując funkcjonowanie polskiego Trybunału Konstytucyjnego. To już nie jest spór prawny, to atak na polską Konstytucję i podstawy polskiej państwowości. KE chce pozbawić Polskę prerogatyw suwerennego państwa.
— Beata Szydło (@BeataSzydlo) December 22, 2021
The commission’s decision was, however, welcomed by constitutional scholar Bogna Baczyńska from the University of Szczecin. “Even for ordinary citizens it is very clear that the Constitutional Tribunal does not fulfill its constitutional role, but is a dummy [body],” she told TVN24.
“The European Commission has taken a logical step to encourage or force Poland to comply with EU treaties,” she added. “This shows very clearly that domestic mechanisms cannot be used to undermine treaty provisions.”
Poland now has two months to formally respond to the European Commission’s justification for initiating the procedure. If Brussels remains unsatisfied, it can then proceed with the legal action.
Main image credit: Jakub Wlodek / Agencja Gazeta
Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.
