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The European Commission against Polish democracy

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The European Commission against Polish democracy, by Olivier Bault.

It was planned for the 23th of May, but it is finally on the 1st of June that the European Commission adopted a negative Opinion about the rule of law in Poland. An Opinion motivated by the conflict over the Polish constitutional Court, while the conservative parliamentary majority (PiS) multiplies openings and proposals of compromise. Unfortunately, the first reaction which followed the announcement of the Opinion adopted by the Commission of Brussels was a new tension of the liberal opposition constituted by the PO party, which governed in coalition with the “peasant” PSL party from 2007 till 2015, and by the party Nowoczesna created for the general election of October, 2015 to get back the voters disappointed by the PO.

The former partner of the PO, the PSL party, made on the contrary a commitment in a dialogue with the PiS to look together for solutions. The leader of the SLD, the social democratic party stemming from the former communist party which has no more deputy in the parliament since the elections of October, 2015, criticizes also the extremism of the PO and Nowoczesna and their calls to an intervention of the EU. He is joined in it by another opposition party, ideologically closer to the PiS, the new party Kukiz’15 of the rocker Paweł Kukiz (who came third during the presidential elections of May, 2015, with 20 % of the votes). So, in a split political scene, the European Commission seems to have chosen to support the hardest opposition, strengthening the growing euro-skepticism of the Polish conservative right traditionally favorable to the European Union.

The negative Opinion of the Commission had circulated in the Polish media from May 20 further because of a leak. Worse, another leak in the Polish media showed that the president of the constitutional Court Andrzej Rzeplinski as well as two other judges of the Court met repeatedly in May representatives of Frans Timmermans, the first vice-president of the European Commission in charge of the Improvement of the legislation, inter-institutional Relations, Rule of Law and the Charter of the fundamental rights. A document written in English would have even be sent to the Commission from the constitutional Court with the explanations and the comments of the Court on the new bill of April 29, 2016, regulating the functioning of the Constitutional Court. Such consultations are completely opposite to the rule of independence and impartiality of the judges planned by the Polish constitution.

In an interview granted to the conservative weekly Do Rzeczy of May 30, the leader of the PiS explains that his party can accept various compromises on new functioning rules of the constitutional Court (according to the Polish constitution, it is up to the parliament to define these rules) by taking largely into account recommendations of the Commission of Venice of March 12, 2016. Recommendations which were of use as basis to the resolution of April 13, by which the European Parliament asked in Warsaw to publish and to apply the resolutions of its constitutional Court. But he also explains that he cannot, as asks for it the European Commission, publish the decision made on March 9, 2016, by the constitutional Court in violation of the law on his then current functioning (with the amendments adopted by the new parliamentary majority on December 22, 2015). Indeed, it would be accepted that judges of this Court (appointed mainly by the former majority PO-PSL) can themselves violate the Polish constitution and establish as ultimate sovereign, by a selective application of the constitutional rules. For Jarosław Kaczyński, a jurist who ended his law studies in the university of Warsaw at the same time as Andrzej Rzepliński, the president of the constitutional Court, the European Commission seems to ignore that the Polish constitution does not speak that of a rule of law but a democratic rule of law, what means that the people, represented by the parliament, is the ultimate holder of the sovereignty.

On April 26, the Polish Supreme Court sided with the Constitutional Court claiming that its decisions do apply without any need to be published (the Constitution speaks on the contrary of taking effect at the time of their publication). Shortly before, on April 20, the director of the jurisprudence department and of the Constitutional Court studies explained on public television that the decisions of the Constitutional Court were not always effective and do not always have the force of law since this tribunal is submitted like the others to the requirement of respect for the law. An interpretation that seemed to agree with the government of Beata Szydło and earned its author, Professor Kamil Zaradkiewicz, also a senior scientist at the University of Warsaw, harsh disciplinary sanctions by the Constitutional Court. Sanctions that drove twenty law professors of the Warsaw University to publish an open letter to the president of the Constitutional Court to testimony of their worries about this flagrant violation of the freedom of expression guaranteed by the Constitution, especially concerning an academical.

The Polish-Polish conflict fits into the drift towards a kind of dictatorship of judges that is seen for decades on both sides of the Atlantic. The unelected European Commission officials, in addition to interfere in the internal politics of a Member State by taking a clear stand for its liberal and pro-European opposition, decided to support the arbitrary and unlimited power of unelected judges.

In the eyes of the PiS, the attitude of the European Commission, very similar to what happened a few years ago with Hungary, shows once again that the EU institutions look at the states of the former Eastern-block as second class members. Therefore, it is up to Poland to enforce her sovereignty in front of Brussels, but also in front of Berlin which has important economic interests on the banks of the Vistula.

Polish leaders rely not only on Hungary’s support but also other countries’ in the region which share their views to block any procedural sanctions that the European Commission might want to start. Ultimately, it will results with the weakening of the entire European Union because of the European Commission’s interference in Polish internal affairs. Supporters of European integration, rather than celebrate unnecessary and uninformed resolutions of the European Parliament and actions of a Commission obedient to the lobbies should rather be concerned.

Translated from French by the Visegrád Post.