EU law: New proceedings against Poland: The dispute over the rule of law escalates

Constitutional Court in Poland

The Brussels authority initiated what is known as an infringement procedure on Wednesday.

(Photo: dpa)

Brussels In the dispute over the rule of law in Poland, the EU Commission has initiated delicate proceedings against Warsaw. This time it is about two highly controversial judgments of the Polish Constitutional Court, which call into question the primacy of EU law over national law.

At the end of the infringement procedure, there could be another lawsuit before the European Court of Justice and heavy fines. The national conservative government and the EU Commission have been arguing over the country’s judicial reforms for years.

The Brussels authority, which monitors compliance with EU law in the EU, has already initiated several proceedings against Warsaw and filed suits with the European Court of Justice. EU Commission Vice-President Vera Jourova expressed the wish on Wednesday that the Polish government should seriously reconsider its approach so that a way can be found in the coming year to be in discussion.

The reactions on Wednesday, however, show little willingness to do so: “The European Commission misunderstands the separation between the competences of the states and the EU structures,” said Prime Minister Mateusz Morawiecki. Vice Minister of Justice Sebastian Kaleta became clearer and spoke of an “attack on the Polish constitution and our sovereignty”.

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The step taken on Wednesday is particularly explosive because the European Court of Justice may ultimately have to rule on its own – whether the ECJ rulings have priority over those of the Polish constitutional court. In addition, national courts should actually make decisions without the influence of a government.

EU Commission doubts the independence of the Polish constitutional court

However, the EU Commission no longer regards the Polish constitutional court as a court, as it made clear on Wednesday. There are serious doubts about its independence and impartiality. The European Court of Human Rights has ruled that the court is illegally occupied.

The background to the new procedure is, among other things, a ruling by the Constitutional Court from the beginning of October, according to which parts of EU law are incompatible with the Polish constitution. The court had already ruled in July that the application of interim ECJ injunctions relating to the country’s judicial system was incompatible with Poland’s constitution.

According to the EU Commission, these judgments call a cornerstone of the European legal community into question. The authority has now found that the judgments violated, among other things, the primacy of EU law. In addition, they violated the binding effect of ECJ rulings and ensured that the right to effective legal protection before Polish courts was restricted.

However, the government in Warsaw has so far not given much thought to warnings from Brussels or Luxembourg. In October, the ECJ ruled that Poland would have to pay a daily fine of one million euros in connection with the judicial reforms.

Poland’s Justice Minister Zbigniew Ziobro promptly replied that Poland should not pay a single zloty. The EU Commission therefore sent another letter to the Polish government on Wednesday in which it threatens official payment requests from January 10, as a spokesman said. The fine could then be more than 60 million euros.

EU Commission could withhold funds

If the dialogue that Jourova wanted does not work out, the EU Commission has two levers to exert pressure – both are of a financial nature. On the one hand, there are billions in EU corona aid that EU Commission chief Ursula von der Leyen wants to block until Poland has withdrawn certain judicial reforms.

On the other hand, there is the new rule of law mechanism through which EU funds can be reduced for alleged violations of the rule of law. The ECJ is likely to rule on the legality of this instrument at the beginning of 2022. The EU Commission could then withhold money.

Green MEP Daniel Freund complained on Wednesday that the infringement procedure was a weak instrument. “If the EU Commission really wants to put pressure on, there must finally be financial sanctions against the government in Warsaw for the blatant violations of the rule of law.”

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