The Origins of Poland’s Feud with the European Union
Image courtesy of Külli Kittus via Unsplash
On July 14 and October 7, 2021, Poland’s Constitutional Tribunal challenged the primacy of European Union law, by ruling that Article 1 and Article 19 of the Lisbon Treaty were incompatible with the Polish Constitution. In addressing Polish Prime Minister Mateusz Morawiecki in the European Parliament, former Prime Minister of Belgium and current member of the European Parliament Guy Verhofstadt said that Poland’s actions have “put an existential threat” to Poland and appealed to Morawiecki to “come back from these stupid decisions and end, together with the Polish people, this march of the folly that you have entered in 2015,” referring to the beginning of Law and Justice Party’s, Prawo i Sprawiedliwość (PiS), rule-of-law breeches. However, all these procedures are part of one long and on-going process, which started as soon as the right-wing populist party Law and Justice Party (PiS) came to power in 2015. Most recently, on February 15, 2023, the European Commission (EC) decided to refer Poland to the Court of Justice of the European Union.
The European Union and Poland have been at odds since the beginning of PiS’ rule in the country in 2015 as the party has attacked the independence of the Polish judiciary multiple times. Before the conservative party took control of the Sejm, the terms of three judges in the Constitutional Court were set to end after the October 25, 2015 parliamentary elections but before the seating of the VIII Sejm on November 12, 2015. The VII Sejm, controlled by the Polish liberal party Civic Platform, elected five new judges into the Constitutional Court. Two additional judges were appointed to replace judges whose terms were set to expire the month following the elections. Ruled later as unconstitutional, it was the Civic Platform’s attempt at blocking PiS from electing their own judges. The PiS-backed president Andrzej Duda refused to take any of the five the judges’ oath of office, thereby prohibiting them from performing their judicial duties – this included not taking the oath of the three lawfully elected judges. After winning absolute majority in the Sejm, PiS unconstitutionally pushed resolutions declaring the election of the five judges as dilatory. Consequently, they elected five party-friendly judges, who were allowed to take the oath of office immediately.
However, Poland’s Constitutional Tribunal ruled that the three judges appointed by Donald Tusk’s liberal Civic Platform were elected lawfully, making the election of three of the five PiS-selected judges illegitimate in the eyes of Polish law. PiS tried to bypass the Constitutional Tribunal in December 2015 by passing legislation to force the recognition of the status of all five judges which, on March 9, 2016, the Tribunal ruled as unconstitutional. The Constitutional Crisis was triggered when the government refused to publish the ruling, thereby preventing it from becoming binding. When the nine-year term of Andrzej Rzepliński as the president of the Constitutional Tribunal ended in December 2016, PiS designated Julia Przyłębska as his replacement, one of the two lawfully appointed judges by PiS back in 2015. As a result, the PiS-friendly Tribunal recognised the three unlawfully elected judges, and, stacked with people loyal to the party, the organ was no longer impartial. Retired judges have remarked that the Tribunal now only serves as a tool of the government used “to confirm the constitutionality of legal acts adopted by the parliamentary majority.”
In December 2017, PiS created the politicized Disciplinary Chamber for the Supreme Court, used to intimidate judges to rule in favor of PiS, and forced 40 percent of Supreme court judges into retirement by lowering the retirement age from 70 to 65. On December 20 of the same year, the European Commission triggered Article 7 of the Treaty on European Union for the first time against Poland, and two days later sent a letter of formal notice about the lack of independence in Polish courts. If the European Council voted unanimously against, this could lead to a loss of rights, such as voting, for the country prosecuted. In their assessment of Poland’s judiciary, the EU stated that “the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.” Poland’s multiple unconstitutional rulings in 2019 and 2020 justified EU’s continuation of the case. In July 2021, the European Court of Human Rights ruled the Chamber as unlawful, with the European Court of Justice (ECJ) ordering Poland to suspend its functions. Upon Poland’s refusal, the ECJ has imposed daily fines amounting to over €250 million, €1 million for every day that the disciplinary chamber operates.
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