For the last five years, as EU officials and member states wrestled with London over Brexit, a fire has been building in Poland.
With negligible political pushback from its neighbours, the national conservative Law and Justice (PiS) party has overhauled its media, public prosecutor, judiciary and more.
PiS insists it is ridding Poland of old communist-era residue but critics see a real threat and a red thread: a populist political party determined to bring all areas of public life under its control.
Despite warnings from Poland’s opposition parties, civil rights groups and leading European courts, Poland’s EU neighbours have dismissed, or ignored, the heated reform debate as a national squabble in a post-communist country.
Now that this battle has entered its endgame, the far-reaching consequences are clear: Poland’s EU membership is now in question and, in a worst-case scenario, so are the very legal foundations of the EU itself.
“People have been warning for years that the rule of law threat from Poland is a much greater danger to the EU than Brexit ever was, and I think they’re right,” said Prof Gavin Barrett, an expert in European constitutional law at the UCD Sutherland School of Law.
Three strands
Poland’s complex judicial reforms have three main strands. First, PiS appointed party allies and loyalists to the country’s constitutional tribunal and supreme court using what critics describe as illegal procedures.
Second, the government overhauled the body that appoints judges, bringing it under parliamentary – thus government – control.
Third, it created a new judicial disciplinary body, which many judges say has created a climate of fear across the court system.
An injunction against the latter, issued last year by the European Court of Justice (CJEU), was ignored in Warsaw and on Wednesday, Poland’s constitutional court ruled that the government was entitled to ignore such injunctions – and other rulings from the Luxembourg court – if Warsaw felt the European judges had overstepped their remit.
In legal terms, that pushed the nuclear button ahead of Thursday’s anticipated CJEU ruling on Poland’s court disciplinary chamber. The Luxembourg judges said this body was at odds with European law because it “failed to guarantee respect for the rights of defence of accused judges, thereby undermining their independence”.
Some 15 years after it joined the EU, and signed up to the European treaties, Poland is now questioning the legality of the treaties in its territory. Polish judges, appointed in questionable circumstances, have advised Poland’s government to ignore EU interventions on the very judicial reforms that brought them into their court position.
Pick and mix
For five years constitutional law experts across the EU have been warning that, without robust intervention, the moment was approaching when Warsaw would view EU law as a pick and mix, ignoring what doesn’t suit its nationalist, populist agenda. That moment is now here, says Barrett of UCD.
“They have turned Poland into a rogue state and paved the way for its legal exit from the EU,” he said. “People regard the EU as being a big powerful structure, but they don’t realise it’s all hanging from a tiny thread: the willingness of national courts to put into effect the rulings of the CJEU in Luxembourg.”
Poland’s independent ombudsman Adam Bodnar warned on Wednesday evening of the far-reaching consequences of the constitutional court decision – questioning the legal supremacy of the treaties and the CJEU.
“If every EU member state interprets EU law in its own way, we would not have a free flow of goods, capital or services, and much more,” he said.
While politicians have failed to act against the growing threat from Poland, judges across the EU have made a series of significant interventions to flag their fears. Many member state courts, including Ireland, have delayed or set aside European arrest warrants and extraditions of Polish nationals, who are wanted by authorities in their homelands, questioning the independence of the court system that awaits them.
In May, the European Court of Human Rights said Poland’s supreme court was “not a tribunal established by law” because of doubts over its political independence and the legality of several judicial appointments to the bench.
‘Serious doubts’
Last week, in an opinion on another case involving Poland’s judicial reforms, a CEJU advocate general expressed “serious doubts” about judges at Poland the supreme court, accusing them of “wrapping up a certain political vision of the world as a legal argument”.
Poland insists that, by drawing a legal line on the CEJU, it is merely following precedent set by other member states, including Germany.
Last year Germany’s federal constitutional court in Karlsruhe questioned the finality of CJEU rulings in a case over bond-buying, cited by lawyers for the Polish government this week before the constitutional court.
Many legal experts around the EU view the German ruling as problematic, but part of a long-running legal battle over the limits of CJEU influence over national courts. German judges focused on a limited legal issue in their ruling, observers say, not the entire legal framework of the EU and, unlike in Poland, their legitimacy is not in question.
The growing problem, say legal experts, is that the EU is now grappling with two states – Hungary and Poland – ruled by nationalists who openly question the union’s legal basis, and who are covering each other against any Brussels efforts to intervene.
“There isn’t a mechanism to deal with this situation,” said Barrett, “where more than one state goes rogue and relapses, effectively, into autocracy.”