Andrew Tettenborn

Poland steps up its legal fight against Europe

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Poland’s legal wrangles with Europe show no sign of ending. Back in September, the Polish Constitutional Tribunal determined that some parts of EU law might be contrary to the country’s constitution. Now the tribunal has lit another firework: doing the same in respect of the European Convention on Human Rights (the ECHR).

Is this just another round in the war between the European elite and the ruling political party, the PiS (which is cordially detested in both Brussels and Strasbourg)? You’d be forgiven for thinking so. Yet this latest wrangle is much more significant, since it opens up an entirely new front. The ECHR is separate from the EU; it and the Human Rights Court are under the control of the 47 member States of the Council of Europe, which consists of essentially every European country, inside or outside the EU.

This latest bust-up kicked off in May, when the Human Rights Court in Strasbourg ruled against Poland. It upheld a claim that the Constitutional Tribunal was not an impartial tribunal, because its judicial appointment process favoured those supporting the policies of the ruling political party PiS. The Polish Tribunal’s response, delivered in recent days, took the opposing view. It said that giving effect to the Strasbourg decision would clash with the provisions of the Polish constitution stating how its members were to be appointed; and that in Poland any conflict between the ECHR and the Constitution had to be resolved in favour of the latter.

Until now, human rights scepticism has been almost a taboo subject

Until now, human rights scepticism has been almost a taboo subject. Even though there are numerous instances where the ECHR very arguably goes much too far in its remit, until recently it has been politically impermissible to suggest this, or to mention the ultimate sanction of leaving the ECHR entirely (which any state can do on six months’ notice).

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