Thursday, September 21, 2023

Brussels files to Poland by its constitutional order: “The situation does not improve”

The European Commission takes a new step forward in its legal war with Poland. The Community Executive has opened an infringement procedure to Warsaw by the decision of the Constitutional Court of the country, which on October 7 ruled that fundamental parts of the European treaties, related to the primacy of the Union and the role of the Court of Justice of the EU (CJEU) as its ultimate interpreter, were contrary to the Polish constitution.

Brussels files to Poland by its constitutional order: "The situation does not improve"

“We have tried to start a dialogue, but the situation does not improve. The foundations of the EU legal system must be respected, in particular, the primacy of Union law ”, Didier Reynders, Commissioner for Justice, wrote on social media. The Commission and the government of the ultra-conservative Law and Justice (PiS) have been clashing since the Polish Executive launched a reform of the judicial system that puts the independence of the magistrates at risk.

In 2017, the European Commission activated for the first time in history Article 7 of the Treaties, which ultimately makes it possible to sanction by withdrawing the right to vote in the Council a member state that violates the fundamental principles of the Union. However, the lack of appetite on the part of the rest of the capitals and the fact that unanimity is necessary, have made the article 7 procedure remain in a deadlock. This has forced the Commission to focus almost all its offensive on the other instrument that remains: infringement procedures, which in their last phase, in case a Member State does not make the changes requested by the Community Executive, can end in the hands of the CJEU.

Precisely, and as part of that war, the Government of Prime Minister Mateusz Morawiecki has moved against the CJEU, since the high court of Luxembourg is the one that has to rule who is right if the Community Executive or Warsaw. So Morawiecki has tried to deactivate the role of the high court as supervisor of judicial independence in the Union. To do this, it has been asking its Constitutional, full of members loyal to PiS, since the spring of last year, several of them illegally appointed according to a ruling from the European Court of Human Rights (ECHR), to clarify whether the parts of the Treaty that allow the CJEU to issue decisions that may interfere in its judicial reform. Nobody was surprised that the Polish TC decided to agree with the Government, thus initiating a new front in the legal war with the European Commission.

“The Commission considers that these judgments of the Constitutional Court violate the general principles of autonomy, primacy, efficacy and uniform application of the Law of the Union and the binding effect of the judgments of the Court of Justice of the European Union ”, indicates Brussels in a statement in which, in addition, it adds that“ it has serious doubts about the independence and impartiality of the Constitutional Court and considers that it no longer meets the requirements of a court previously established by law ”.

The Commission’s General Directorate of Justice adds that this suspicion is well-founded: “This is also demonstrated by other irregularities and deficiencies such as the election of the President and Vice President of the Constitutional Court, which raised serious concerns about the impartiality of the magistrates of the Constitutional Court in the processing of individual cases ”. It is not the first time that a European institution points to the Polish TC. A few days after his controversial ruling, the European Parliament voted by a large majority for a resolution stating that “the Constitutional Court is illegitimate” and “cannot interpret the constitution.”


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