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Poland’s Compromised Court Threatens Rule of Law in Europe

Decision Shows Need for Decisive Action to Defend EU Founding Values

A protester holds a copy of the Polish Constitution during a protest at the Market Square in Krakow, Poland July 16, 2017.  © 2017 Agencja Gazeta/Jakub Porzycki/Reuters

An October 8 decision by Poland’s politically compromised Constitutional Tribunal came as a shock in the country and across Europe. In its ruling, the court decided that two core articles of the European Union’s founding treaties are incompatible with the Polish Constitution, effectively rejecting the enforceability of EU law in Poland.

The ruling threatens not only the rule of law in Poland, but also the legal framework of the EU. It paves the way for Poland’s courts to ignore rulings by the EU Court of Justice (CJEU) to address the Polish government’s interference with judicial independence. And if left unchecked, it creates a precedent that wrongfully suggests EU states can pick and choose what binding EU law they apply.

This is not the first time national courts have identified a clash between a member state’s constitution and EU treaties. The Supreme Court of Ireland previously flagged such clashes in its jurisdiction, and the Irish government responded with securing the necessary constitutional changes. However, Poland’s ruling party is unlikely to have similar intentions.

The case was filed by the Polish Prime Minister before a court whose composition, independence, and functioning have been severely compromised by the Law and Justice Party since 2016. The move can hardly be seen as but another move by Poland’s ruling party to use this flawed court to do its bidding. A year ago, the same court invalidated access to safe abortion for Polish women. In April, it removed the country’s Ombudsman from office, despite the government’s failure to identify a successor.

Responding to last week’s ruling, EU Commission Chair Ursula Von Der Leyen committed to using “all the powers” to protect the binding nature of the CJEU. The EU Commission should match this rhetoric with renewed infringement proceedings against Poland’s government to address the ongoing misuse of the Constitutional Tribunal to undermine rights. The Commission should continue its commitments to tie EU Recovery Funds to serious rule of law guarantees and implement the EU treaty mechanism that conditions EU funds on respect for EU values.

Following the Polish court’s ruling, the French and German Foreign Ministers recalled that EU membership is tied to common values and rules. Their words need to be matched by action. For too long, EU member states’ slow pace of scrutiny of Poland under the Article 7 mechanism has emboldened Poland’s government. It’s time for the EU Council to stand up for people in Poland and across the EU and agree on collective action on rule-of-law recommendations and to formally acknowledge that EU values are under attack in Poland.

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