Andrew Tettenborn

The EU will regret its legal onslaught against Poland

(Getty images)

When European governments openly disobey courts, ears prick up. When two courts simultaneously contradict each other on the same day and descend into an unseemly shouting-match, all bets are off. Welcome to the mad world of Poland’s legal relations with the EU.

The ruling Law and Justice Party in Poland, PiS, is cordially detested in Brussels. Its policies, which are quite popular locally, are anathema to the liberal and cosmopolitan Euro-nomenklatura. Back in 2017, PiS introduced technical changes to the terms of appointment of the Polish higher judiciary, including a disciplinary chamber with political connections armed with powers in certain cases to sanction judges. 

The measures were aimed at halting corruption. But these changes were seen by the opposition as an attempt to muzzle the courts. Inevitably, Brussels enthusiastically took up the opposition’s case. 

Although you might have thought this was not an EU matter, Brussels said the new measures were illegal. It suggested that the rules deprived Polish litigants who were seeking to rely on EU law access to an impartial tribunal to apply them. 

Last year, it took action in the European Court of Justice. On Wednesday, the court issued an emergency order telling Poland to suspend its measures immediately; a day later, it formally declared them to be illegal.

Warsaw countered. On Wednesday, the Polish Constitutional Tribunal insisted that under the Polish constitution the EU court had no business interfering in the make-up of the Polish judiciary. It essentially declared that any European judgment to the contrary needed to be ignored. 

Turning off the money tap is also a possibility: Poland gets roughly €13 billion net per year from the EU, and has yet to receive any EU Covid recovery payments

Meanwhile, still pending before the Polish courts is a claim by the PiS government for a wide-ranging decision that no EU law of any kind can prevail over the provisions of the Polish constitution.

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