‘Polish people must be able to rely on fair and equal treatment in the judicial system, just like any other European citizen’

Today (19 October), the European Parliament debated the recent ruling of the Polish (un)Constitutional Tribunal* which ruled that a fundamental requirement of EU law - it’s primacy over national rules - was contrary to the Polish constitution. 

European Commission President Ursula von der Leyen said the recent ruling of the Polish Constitutional Court puts Poland’s commitment to the rule of law into question. The Commission’s core concern is the independence of the judiciary: “Judges have seen their immunity being lifted and have been driven out of office without justification. [... ] Unfortunately the situation has worsened. This has been confirmed by the European Court of Justice and the European Court of Human Rights. And now, this has culminated in the most recent ruling of the Polish Constitutional Court.”

Polish Prime Minister Mateusz Morawiecki believes that Poland's commitment to an independent judiciary, which states sign up to when they join the EU, should not be overseen by the European Court of Justice. Sadly, the current government in Poland's treatment of the judiciary is not just a problem with its understanding of the EU treaties, it also runs contrary to the Polish constitution.  

Morawiecki sounded reasonable, at first: “I think that most of us will agree that there can be no talk of the rule of law without several conditions. Without the principle of separation of powers, without independent courts, without respecting the principle that each power has limited competences, and without respecting the hierarchy of sources of law.” An argument with which the European Commission would most certainly agree, except it ignores that the European Court of Human Rights, European Court of Justice, judicial and legal professional bodies and numerous non-governmental organisations have found that Polish courts are no longer independent. 

Von der Leyen said the Constitutional Tribunal’s ruling is contrary to the foundations of the European Union: “It is a direct challenge to the unity of the European legal order. Only a common legal order provides equal rights, legal certainty, mutual trust between Member States and therefore common policies.” 

Von der Leyen was careful to frame the problem in terms of what it would mean for Polish citizens: “Polish people must be able to rely on fair and equal treatment in the judicial system, just like any other European citizen. In our Union, we all enjoy the same rights. This basic principle fundamentally impacts people's lives. Because if European law is applied differently in Grenoble or Göttingen, or Gdańsk, EU citizens would not be able to rely on the same rights everywhere.”

What next?

Von der Leyen said that as the guardian of the Treaty it was essential that the Commission acted to defend the “democracy, freedom, equality and respect for human rights” that the EU was founded on.

The first option are infringements, where the EU will legally challenge the judgement by the Polish Constitutional Court. 

The EU can also apply the rule of law conditionality mechanism and other financial tools. A move that Morawiecki described as “financial blackmail”: “I reject the language of threats, hazing and coercion. I do not agree to politicians blackmailing and threatening Poland. I do not agree that blackmail should become a method of conducting policy towards a member state. That's not how democracies do things.” On the other hand, the European Commission cannot be accused of not trying “dialogue”, in fact many have accused the EU of excessive patience in dealing with a situation where stronger action is required. 

The third option is the Article 7 procedure, both Poland and Hungary have been subject to what is called the Article 7 mechanism, but it has been a slow process and even though the process for Poland was started over 4 years ago, it’s progress has been limited and ultimately subject to unanimity - which cannot be guaranteed when Hungary and Sloveniia are also EU members. 

Von der Leyen said she deeply regretted the situation that she found herself in: “I have always been a proponent of dialogue and I always will be.” 

*The Constitutional Tribunal has been found to be unconstitutionally constituted by the European Court of Human Rights, independence isn’t just a requirement of the EU treaties, but also the Polish constitution. 

The Law and Justice (Prawo i Sprawiedliwość) led Polish government, introduced changes to the judiciary when it came into power. In a landmark judgement earlier in the year, the European Court of Human Rights in Strasbourg ruled that the composition of the Constitutional Tribunal did not meet the conditions necessary to be described as a ‘court established by law’. It found that it could therefore not protect the right to a fair trial. 

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