Recently, the Polish judiciary system implemented changes that are of conflicting interest with those of the European Union. This is part of an ongoing dispute between Warsaw and the EU over the bloc’s laws in Poland, the extent of its reach in the country, and the goals of the country’s ruling Law and Justice Party (PiS). The consequences of further disputes must not go unnoticed given the legal, political, and economic implications for Poland and the EU’s member states.
On October 7th, the highest court of Poland ruled that “some parts of EU treaties [as] incompatible with the Polish constitution,” and the European Commission expressed concern over “the primacy of EU law [given the] years of legal and political wrangling with Poland’s nationalist rulers,” according to Reuters. Such legal and political challenges have been on issues of the media landscape, the rights of LGBT+ individuals, and independent courts. Jaroslaw Kaczynski, the head of the PiS party, added that “In Poland the highest legal act is the constitution and all European regulations that are in force in Poland … must comply with the constitution.” Reuters reports that “Brussels accuses the PiS government of undermining judicial independence during sweeping reforms. The party says the changes are meant to make the courts more efficient and rid them of the last vestiges of Communist-era influence.”
Filippo Donati, president of the European Network of Councils for the Judiciary, explained that these actions are a “great danger for the European Union” given that the EU single market system “relies on the assumption every country will implement EU law equally.” However, Polish officials state that “such fears are overblown, hyperbole meant to bully Warsaw into compliance with the EU’s wishes. Poland, they say, has no interest in leaving the EU,” Politico reports. Furthermore, Polish Prime Minister Mateusz Morawiecki told the European Parliament that “the Union will not fall apart from the fact that our legal systems are different.”
These changes can have far-reaching implications depending on the direction of current measures. For instance, in terms of the application of the law, if the Polish courts take a different approach than that of the main EU law, this may discourage businesses and other partners from operating and working in Poland if the application of the law will be different. Already there are some effects when it comes to European arrest warrants. According to Laurent Pech, a professor of European law at Middlesex University, “Surrenders to Poland are most likely going to be stopped by national courts,” he said, as judges fear Poland’s courts may be too politically compromised.” Moreover, “In practice, what this decision of the [Constitutional Tribunal] has done, is that it has put Poland outside of the EU legal system,” said Filipe Marques, a Portuguese judge who is president of MEDEL, an association representing European judges and prosecutors that promotes rule-of-law standards, Politico reports.
In this case, that means that one cannot assume that they will have the same EU law standards in Poland. In the context of arrest warrants, one cannot be sure that they will have a fair trial free from political activity. In the business realm, that means that legal decisions may be different in Poland than in other countries, so the uniform standard for businesses to follow is no longer there. Wherever there is uncertainty, for business, this also means uncertainty in continued access to such a market and the ability to settle disputes. Politico explains that for the average person, these effects will be noticeable in matters of family law. In general, if the rule of law standards across different matters are different in Poland than in the EU bloc, that affects the trust between EU/Polish institutions, the guarantee of the rule of law itself, and potential future actions by Poland that may further put into question whether or not anyone that is tried or needs to settle disputes will be guaranteed fair trials that are free from political motivations or other interests.
These legal issues are not new. An October 2017 report by the United Nations Human Rights Office of the High Commissioner highlights many of the concerns and developments of today. The report explains that “reforms currently under way [at the time] would potentially weaken its independence and capacity to ensure checks and balances, and to protect and promote human rights.” Additionally, UN Special Rapporteur Diego García-Sayán explained that “the very fact that the text of such important law is being discussed behind closed doors is a source of serious concern [and] any legislation on the functioning of the supreme judicial organ of the country should be the subject of an open and transparent debate.” Four years later, such changes are already taking place and several more may be in the works, though if such changes continue to be discussed behind closed doors, there is no way to truly know what kind of judiciary changes are underway.
There is also the question of how this will affect neighbouring countries and the future of EU law within the bloc. Countries such as Hungary and Slovenia have had disputes with the EU over their application of laws regarding media independence and the general application of the rule of law. Any country that “[sees] that in Poland the Constitutional Tribunal said that you cannot apply European law or European court judgments, and nothing happened, then they will do the same,” according to Dorota Zabłudowska, a member of the national board of the Polish Judges Association. It is clear that the consequences of Poland’s changes will be far-reaching for the rule of law if the EU and Poland do not discuss these actions soon.
To prevent the further erosion of the rule of law and uniformity of EU law in Poland and in the bloc, Poland and the EU must not have overly aggressive, zero-sum-game approaches that will only worsen the situation. There must also be transparency on both sides in terms of holding discussions, implementing new laws or changes, and explaining such actions. This means fewer misunderstandings that may cause further problems for Poland and the EU. Poland must ensure the independence of the judiciary, the media, and general freedoms, which means that it may have to reinstate or reverse course on recent developments to ensure the trust of the people, businesses, and other entities that are subject to Polish law. Independent watchdogs should monitor the situation and follow up with reports to track any progress made on this front, which will then serve as the next steps for the EU and Poland. With open dialogue, more sharing of information, and independent reporting on the trajectory of Polish rule of law, there will be more effective meetings between the EU and Poland to discuss these issues, settle points of disagreement, and develop future strategies or changes that ensure the fair application of the rule of law in the bloc.
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