A long-running conflict between the European Commission and Warsaw over controversial judicial reforms in Poland is coming to a head, say analysts, despite efforts by French President Emmanuel Macron to play down the dispute during a visit Monday to Poland.
Since taking office in 2015, Poland’s ruling Law and Justice Party (PiS) has passed laws giving the government more direct control over the courts and judges, violating rule-of-law commitments when the country joined the European Union.
Last year, the PiS-controlled parliament and the country’s Supreme Court issued rival rulings on the legality of the judicial reforms, which include the government assuming power to appoint, promote and discipline judges. The conflicting rulings in January have thrown the country’s legal order into chaos.
Poland’s government has shrugged off EU complaints, fueling tensions between Warsaw and European institutions including the European Court of Justice. Administrators in the European Union fear that other central European leaders will be emboldened by Poland. Hungary has also introduced controversial judicial changes, incurring the anger of Brussels.
On his visit to Poland Monday, President Macron, who has been wooing Warsaw in a bid to secure its backing for his plans to reshape the EU following Britain’s exit from the bloc, played down the clash over the PiS’s judicial reforms.
Macron had previously been blisteringly critical of Poland's populist right-wing government for seeking to bring the judiciary under political control. This time Macron was carefully measured in tone, saying he hoped his visit would mark a “turning point” in bilateral relations between France and Poland, which have been strained since 2015, and provide an opportunity to clear up “misunderstandings.”
Macron mentioned the judicial issue only at the end of his statement to the press alongside Polish President Andrzej Duda, and called for “dialogue with the European Commission to intensify over coming weeks.”
But EU lawmakers say dialogue isn’t enough. They are calling for more pressure to be applied to Poland — as well as Hungary — to force both into reversing their efforts to reduce judicial independence. Terry Reintke, a German Green lawmaker, who sits on the European parliament’s justice and home affairs committee, says, “The independence of the judiciary cannot be negotiable.” He is calling on the EU to “stand up for the rule of law.”
The European Commission has repeatedly condemned PiS’s changes, and in 2017 took the unprecedented step of launching a process that could in theory lead to the country’s EU voting rights being suspended until it corrects what Brussels sees as violations of the bloc’s principles regarding judicial independence. The commission has also mounted a series of legal challenges. The EU’s top court, the European Court of Justice, which has ruled some changes illegal, is mulling taking further action.
Last month, Christian Wigand, a spokesman for the commission, said Brussels “will not hesitate” to take steps to protect the rule of law. The PiS says the judicial overhaul is necessary to modernize the country’s legal system. Polish President Andrzej Duda says his country “has the right to regulate its internal legal order.”
The Polish government says the EU is biased against central European states and turns a blind eye to violations by Western member states.
Poland’s courts have been thrown into confession since the country’s warring lower parliamentary chamber and Supreme Court issued their conflicting rulings. The Senate, which is not controlled by the PiS, has not endorsed the legislation. But some trials have been postponed amid the clash.
The Supreme Court warned in December that rulings issued by judges appointed by a PiS controlled body, a revamped National Council of the Judiciary, which was once independent but has now been staffed with party loyalists, could be considered unlawful. The government responded by passing legislation making it illegal for any judge to question the legality of its appointments.
The move was dubbed “an extreme escalation by the Polish government” by Marcin Matczak, a law professor at the University of Warsaw. He and other observers say judges who issue rulings disliked by the PiS are faces with state intimidation and being threatened with disciplinary proceedings and sometimes criminal charges.“
The PiS government is on a collision course with EU law, but instead of slowing down, it has accelerated the pace,” according to Michael Meyer-Resende of Democracy Reporting International, an advocacy group. In a commentary, he says Brussels could ask Europe’s top court to impose fines on Poland for rule-of-law violations.
Some EU leaders and lawmakers say future EU grants to Poland should be made conditional on upholding democratic values and not undermining the rule of law. That tactic is actively being discussed in early negotiations for the next EU budget, say diplomats. But Polish leaders say they are confident the EU won’t follow through on threats to withhold cash payments — especially in the wake of Brexit.