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Brussels will remain in conflict with Poland even with a new European Commission

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By Olivier Bault.

Poland – Together with its fellow Visegrád Group countries, Poland has managed to veto the bid of Dutch socialist Frans Timmermans to become the next President of the European Commission. Although Timmermans is expected to retain a vice-presidency of the Commission, under a promise made by Ursula von der Leyen to the socialists in the European Parliament, it is considered likely that he will no longer be responsible for matters relating to the rule of law. This is in accordance with the wishes of the V4 countries, which are fed up with his excessive and very selective interference, as well as his open support for the most radical opposition parties in Poland and Hungary during the European election campaign.

This does not mean, however, that the endless disputes between Brussels and Warsaw (and also Budapest, among other things on the “Stop Soros” laws) will come to an end anytime soon. The Article 7 proceedings started in December 2017 by the Commission have stalled in the European Council, for lack of the required majority of 22 countries out of 28 considering that the rule of law is actually at risk in Poland. That is why the Juncker Commission has turned to the European Court of Justice, having in mind that the judges sitting in Luxembourg have traditionally tended to extend the Court’s fields of competence at the expense of member states, thanks to their sometimes very loose interpretation of the European treaties. While Poland may oppose the decisions of the European Commission, it is more difficult to openly refuse to implement the decisions of the ECJ without risking a major institutional crisis in the EU. This is the reason why Warsaw bowed to the ECJ in December last year on the question of the retirement age of sitting judges of the Supreme Court.

Presently, the European Commission is contesting the procedures put in place by Law and Justice (PiS) to restore some kind of democratic control over the judiciary, in particular the creation of a new Disciplinary Chamber in the Supreme Court. The judges of the new Disciplinary Chamber are appointed by the National Council of the Judiciary (KRS). However, the reforms enacted by PiS first amended the procedure for the appointment of the 15 judges sitting on the KRS, which has 25 members in all. They are no longer appointed by their peers, but by Parliament. In March, the Polish Constitutional Court confirmed that the change is in conformity with the Polish constitution. However, the European Commission and Vice-President Timmermans do not accept this, and they are now threatening to refer this matter to the European Court of Justice as well. The procedure is already under way: the Commission has officially requested clarifications from Poland, and in mid-July it expressed its dissatisfaction with the answers received.

At the same time, the ECJ has already been invited to consider this aspect of the Polish reforms through questions referred for a preliminary ruling (requests for interpretation of European Law) submitted by Polish judges who are using this European mechanism to resist the laws approved by a parliamentary majority, thus inviting the ECJ to extend its competencies beyond the areas directly laid down in the European treaties. For example, in order to block disciplinary proceedings against a judge who had been late 170 times with the drafting of the reasons for her judgements, judges of the Supreme Court have referred to the ECJ for a preliminary ruling on the independence of the judges of the newly created Disciplinary Chamber.

On June 27 the Advocate-General of the Court of Justice delivered his opinion on this issue, and it was unfavourable to Poland. This strongly suggests that the ECJ may rule that the way judges are now appointed to the KRS is contrary to the general principle of judicial independence inscribed in the European treaties.

However, it is difficult to imagine how Poland could move back on this issue. One point is that the reform has been validated by its own Constitutional Court, which under Polish law is the only competent court in this matter; another is that its reversal would invalidate all appointments of judges (not only those of the Disciplinary Chamber of the Supreme Court) made since the entry into force of the KRS reform last year. In addition, this reform is central to achieving the election promise made by PiS to put an end to the sense of impunity and corporatism in the judiciary.

Hence, even with a new Commission, and excluding the unlikely eventuality of a defeat for PiS in the parliamentary elections this autumn, the pressure exerted by Brussels’ institutions on Poland will not fade away. And things will even become much worse – not only for Poland – if the idea of linking EU funds to the rule of law and “European Values” becomes reality.