Poland Escalates Fight With Europe Over the Rule of Law

Hungary and Poland are fighting with Brussels over values and rule of law. So, after a fashion, is Germany.

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BRUSSELS — Poland has escalated a six-year struggle with the European Union over the rule of law after the country’s constitutional court ruled it did not have to comply with an order from the bloc’s supreme court over its oversight of judges.

The decision by the Polish court on Wednesday followed an order by the top E.U. court, the European Court of Justice, to suspend a disciplinary “chamber” that critics say has been used by the ruling Law and Justice party to intimidate judges not to its liking. Poland’s top court said that the European court, which is based in Luxembourg, did not have the power to impose such orders under Poland’s Constitution.

On Thursday, the European Court of Justice said that the system of overseeing and disciplining judges in Poland, set up by the ruling party, was not compatible with E.U. law and that its impartiality and independence from political interference cannot be guaranteed.

If Poland does not comply with the E.U. ruling, the European Commission, the bloc’s executive, can ask the court to impose daily fines. The Commission considers Poland’s actions to be a violation of the treaties that bind the bloc together and that guarantee an independent judiciary.

Poland’s government has argued that the disciplinary chamber, which was set up in 2018, was necessary to purge a corrupt system that includes Communist-era holdovers.

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The Supreme Court in Warsaw.Credit…Kacper Pempel/Reuters

The head of Poland’s parliamentary commission for justice, Marek Ast, criticized the European court’s ruling, saying that the organization of justice systems should be the responsibility of E.U. member states. “The standards that E.C.J. is drawing from the E.U. treaties are not in line with Poland’s Constitution,” he said, referring to the court.

Zbigniew Ziobro, Poland’s justice minister, told reporters that the court’s decision was a political one that segregated states “into better and worse ones.”

In another battle over the rule of law, the Commission said on Thursday that it was starting separate legal proceedings against Poland and Hungary over alleged violations of the rights of L.G.B.T.Q. people. The Commission acted in response to Hungary’s recent law banning the depiction or promotion of homosexuality to those under 18 and to Poland’s so-called L.G.B.T.-ideology free zones.

“Equality and nondiscrimination are core principles in the E.U., enshrined in its treaties and in the Charter of Fundamental Rights,” the Commission said in a statement, explaining the legal action. It added that discrimination against L.G.B.T.Q. people persisted throughout the bloc, “which is why the E.U. has to be at the forefront of efforts to better protect” their rights.

Critics have denounced Hungary’s law as an assault on fundamental rights, but with key positions throughout the country’s high courts packed with Prime Minister Viktor Orban’s loyalists, hope for domestic recourse is low.

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Activists protesting last week in Budapest, Hungary.Credit…Attila Kisbenedek/Agence France-Presse — Getty Images

The issue has allowed Mr. Orban to sow division in the unprecedented, though fragile, six-party coalition challenging his leadership in next year’s national election. And he has used international criticism of the law to frame criticism of Hungary as being rooted in a culture war waged by cosmopolitan leftists and liberals.

Poland’s Law and Justice party is similarly using issues of identity, nationalism and resistance to a more liberal European Union elite to prop itself up against growing opposition to its long rule. That opposition has been bolstered by the decision of Donald Tusk, a former Polish prime minister and former president of the European Council, to return to domestic politics in an effort to defeat Law and Justice.

Poland and Hungary have long been at loggerheads with Brussels over what critics consider the chipping away at the pillars of healthy democracy, including the independence of the judiciary and the news media, as well as the rights of minorities. Although the Commission has begun several legal actions in an attempt to discipline Budapest and Warsaw, its scope of action has been limited, the court cases take considerable time, and Poland and Hungary have faced few consequences.

Hungary has always bent to the rulings of the European Court of Justice, which is the highest authority in the interpretation of E.U. law. But now Poland appears to be challenging the court’s supremacy over what it claims is national law.

The issue, though, is broader than the actions of two countries that some consider to be “illiberal democracies.” More problematically, Germany’s supreme court, which interprets its Constitution, known as the Basic Law, has also questioned the supremacy of the European Court of Justice. Last year, for example, it argued that the European court had exceeded its competence to rule on the legality of issuing European bonds.

The Commission and the European court responded harshly, with the court saying that it alone “has jurisdiction to rule that an act of an E.U. institution is contrary to E.U. law.”

Last month, the Commission began an infringement procedure against Germany over the primacy of European court rulings over German ones. That came after the German constitutional court delayed the government’s approval of a European Central Bank bond-buying program, even though it had already been approved by the European Court of Justice.

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Germany’s constitutional court last year delayed the government’s approval of a European Central Bank bond-buying program, even though it had been approved by the European Court of Justice.Credit…Sebastian Gollnow/Agence France-Presse — Getty Images

The sharpening of the dispute with Poland and Hungary comes amid the disbursement of the $857 billion E.U. coronavirus recovery package, which, after intense haggling, has been tied to adherence to rule-of-law standards, like an independent judiciary and transparency. The Commission has still not approved the spending plans of Poland and Hungary, which is a necessary step for the payout of the funds, because of concerns over corruption and rule of law.

The Commission said on Thursday it was analyzing the ruling by Poland’s constitutional court “also in the light” of the country’s recovery plan. “The proper implementation of the national recovery plans requires that member states have in place management, control and judicial supervisory systems that can guarantee the proper use of E.U. funds,” said Eric Mamer, the chief spokesman for the Commission.

Rule of law and the recovery fund were among the issues discussed on Tuesday by Poland’s prime minister, Mateusz Morawiecki, and Ursula von der Leyen, the Commission’s president. Ms. von der Leyen described it on Twitter as a “good exchange.”

But Poland’s ruling coalition is internally divided, and Mr. Morawiecki is under domestic pressure over the national coronavirus response and the prospect of losing E.U. funds.

Members of the European Parliament and legal experts, who have been more outspoken on rule of law issues than has the Commission, say that recent actions by Poland and Hungary are a valid reason to suspend the recovery funds.

“Considering the extent of the rule of law breakdown we are witnessing in Poland, the conditionality regulation could be immediately activated by the Commission,” said Laurent Pech, a professor of European Law at Middlesex University in London.

Some suggest that the latest rulings may prompt Poland to consider leaving the European Union, known as “Polexit,” but that is considered far-fetched, given how popular European identity and financial support are among a majority of Poles.

“Polish authorities are now in fundamental breach of the basic E.U. membership conditions,” said Mr. Pech, calling the ruling by the Polish court “an acceleration of the Polexit process.”

Manfred Weber, the head of the powerful center-right European People’s Party grouping in the European Parliament, tweeted: “This should serve as a warning to all Poles who are truly pro-European and want a European future for their children and grandchildren: your government is clearly on the path to #Polexit.”

Terry Reintke, a Green legislator, wrote: “Too much time has been wasted. We need a determined Commission to finally stand up to this.”

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