As EU seeks talks, Poland risks unraveling the bloc’s legal order

 

CARTOON:

First published in De Volkskrant, The Netherlands, October 21, 2021 | By Joe Collignon

 

As EU seeks talks, Poland risks unraveling the bloc’s legal order

 

Poland’s judicial changes and rulings may have set in motion a process that effectively decouples the country from the EU’s legal system.

 

BY LILI BAYER

October 26, 2021 4:00 am

https://www.politico.eu/article/polish-legal-woes/

 

EU leaders may want to kick their rule-of-law rupture with Poland as far down the road as possible, but the dispute’s legal implications can’t be so easily ignored.

 

With a series of contested judicial reforms and a court ruling challenging the EU’s legal foundation, the Polish government may have set in motion a process that effectively decouples the country’s legal system from the rest of the bloc. And there are fears others will follow Warsaw’s path.

 

That could mean the unraveling of the EU’s common legal system — judges refusing to extradite criminal suspects to Poland, challenges to cross-border disputes on everything from divorce to commercial agreements, Polish judges being disciplined for applying EU law. The implications for people and businesses could be massive.

 

Still, some EU leaders have taken an increasingly conciliatory tone in recent days toward the country — a large economy with high geopolitical significance for many of its allies. At a European Council summit last week, many leaders pressed for dialogue over swift punishment.

 

That hasn’t tempered the rhetoric out of Warsaw. Polish Prime Minister Mateusz Morawiecki warned in a Financial Times interview published Monday that if the European Commission “starts the third world war” by withholding promised cash to Warsaw, he would “defend our rights with any weapons which are at our disposal.”

 

The effort to dodge a fight by EU leaders has raised questions about the bloc’s commitment to enforcing rule-of-law standards — and whether a compromise is even possible when it comes to the basic tenets of the EU’s legal system. While Poland has pledged to make some changes to its judicial system, it has not committed to specifics. And it has yet to back down from the latest dispute — a court ruling that questioned the supremacy of EU law.

 

The situation, said Filippo Donati, president of the European Network of Councils for the Judiciary, is a “great danger for the European Union.”

 

The EU’s single market, its “entire system,” Donati said, relies on the assumption every country will implement EU law equally. If that falls away, he argued, the EU cannot function. Either Poland accepts “the principles of European Union law” or it orchestrates an “exit” from the EU, he said.

 

Polish officials insist such fears are overblown, hyperbole meant to bully Warsaw into compliance with the EU’s wishes. Poland, they say, has no interest in leaving the EU.

 

“The Union will not fall apart from the fact that our legal systems are different,” Morawiecki emphatically told the European Parliament last week.

 

Brewing beef

Poland’s ruling Law and Justice party (PiS) has faced criticism for years over its persistent campaign to reshape the country’s legal system.

 

Many Polish judges have protested against what they describe as the government systemically undermining their independence. In its 2021 rule-of-law report, the European Commission expressed concerns over how Poland now disciplines and appoints judges.

 

Earlier this month, tensions deepened when the Polish Constitutional Tribunal, itself deemed illegitimate by EU institutions, said certain parts of the foundational EU Treaties were incompatible with Poland’s constitution. Legal experts and Brussels officials said the ruling challenged the notion that all member countries must apply EU laws.

 

The court’s ruling caused long-simmering tensions between Poland and the EU to boil over. MEPs dialed up pressure on the European Commission to impose financial penalties on Warsaw. Several EU leaders issued pointed calls for action.

 

But fearing a fissure within the bloc at a time when the Continent is just embarking on its post-pandemic recovery and an ambitious climate agenda, European leaders last week sought to calm tempers over the issue.

 

“I want to be optimistic,” French President Emmanuel Macron said following the summit, calling for the EU to make “true demands” via “dialogue and respect.” For her part, Commission President Ursula von der Leyen has said her team will pursue a combination of dialogue, legal responses and concrete action.

 

Poland, disconnected

It’s a situation that has unsettled judges, business representatives and experts. They warn the standoff could have a vast array of negative consequences for the economy — and even citizens’ everyday lives.

 

Soon, family law could become more complex, they warn, if cross-border divorce proceedings with Poland are thrown into question. Commercial disagreements with Poland and Polish businesses could get ensnared in a legal morass.

 

“Think about all the cross-border legal disputes involving European residents and European companies, why would anyone have any trust in Polish courts from now on?” said Laurent Pech, a professor of European law at Middlesex University.

 

The first consequence will likely be European arrest warrants, according to Pech.

 

“Surrenders to Poland are most likely going to be stopped by national courts,” he said, as judges fear Poland’s courts may be too politically compromised.

 

 

Already, an Amsterdam court earlier this year rejected the extradition of a Polish narco-trafficking suspect, citing rule-of-law concerns and “a real risk” the defendant would not get a fair trial in Poland.

 

Essentially, European judges may question whether they can work with their Polish peers. 

 

“In practice, what this decision of the [Constitutional Tribunal] has done, is that it has put Poland outside of the EU legal system,” said Filipe Marques, a Portuguese judge who is president of MEDEL, an association representing European judges and prosecutors that promotes rule-of-law standards.

 

“How can I keep trusting the Polish judiciary when I have the Polish [Constitutional Tribunal] saying, ‘I will not comply with the rulings of the European Court of Justice?’” he said.

 

In Poland, some judges are pushing back against the ruling. Dorota Zabłudowska, a member of the national board of the Polish Judges Association, called the decision illegitimate.

 

“We don’t think it’s binding for us,” she said, pointing to the “improper” composition of the tribunal and noting the body “cannot forbid” judges from applying European law.

 

However, Poland can punish judges after the fact.

 

Zabłudowska noted judges could face consequences for applying EU law, including “disciplinary charges or criminal charges.”

 

“When the government doesn’t like what the judges do,” she said, “they just send the prosecutor’s office after us.”

 

As a result, European judges should closely examine where any Polish judgment comes from, Zabłudowska argued.

 

“When a foreign court gets a European arrest warrant, first of all they should check whether the person who issued the warrant was properly appointed to a judicial position,” she said.

 

Morawiecki has repeatedly pushed back against such assessments. Before the Parliament last week, he insisted the recent court ruling doesn’t devalue the EU’s treaties. But he still maintained that the Polish constitution does, in fact, come first. 

 

Poland’s courts, he said, have “never stated that the provisions of the Treaty on the Union are wholly inconsistent with the Polish constitution. On the contrary! Poland fully respects the Treaties.”

 

Business ‘chaos’

The European economy relies in large part on EU guarantees that if businesses take a dispute to a court in Lisbon, Warsaw or Berlin, judges are applying the same European standards.

 

If businesses can no longer assume Poland will also follow those rules, it risks opening a legal Pandora’s box.

 

“Once we start with not applying EU law first, we will have a problem — we will have chaos,” said Edith Zeller, an Austrian judge who serves as president of the Association of European Administrative Judges. “Every state or every judge would then apply what he or she thinks is better.”

 

Government officials say the scenario could fracture the bloc’s economy.

 

“That is a worry, that people could start picking and choosing what they want,” said Irish Minister for European Affairs Thomas Byrne. “And that’s a real worry, not just for our values, of course, but also for the single market.”

 

“You can’t do one standard in one country and not apply it in another country,” he added. “The system won’t work.”

 

For businesses that rely on courts to settle disputes, the Polish Constitutional Tribunal’s ruling has been troubling. Not only does it create legal uncertainty, but it has also added to ongoing questions about whether Poland will get its pandemic recovery funds from the EU. The Commission has held off approval of €36 billion in grants and cheap loans for Poland amid its rule-of-law dispute with Warsaw.

 

“Anything that leads to legal uncertainty is a concern to the business community,” said Christoph Leitl, president of Eurochambres, the Association of European Chambers of Commerce and Industry, “This is not unheard of in relation to third countries, but it is more troubling to see it now within the single market, particularly as businesses rebuild their activities, supply chains and networks following the pandemic.”

 

“This ruling risks undermining the recovery process for Polish businesses, as well as for other European businesses with commercial relations in Poland,” he said.

 

Beyond Poland

As fears grow about Poland’s participation in the EU legal order, some experts raise worries about possible contagion if Warsaw’s moves go unaddressed.

 

“It’s a very dangerous precedent for the whole of the European community,” said the Polish Judges Association’s Zabłudowska.

 

The EU has sparred with other members like Hungary and Slovenia over adhering to certain EU standards and requests.

 

“When other countries that have authoritarian streaks see that in Poland the Constitutional Tribunal said that you cannot apply European law or European court judgments, and nothing happened, then they will do the same in their countries,” she said.

 

Asked if she fears more countries could follow in Poland’s path, the Association of European Administrative Judges’ Zeller said it all hinges on judicial independence. 

 

“Every judicial system has certain weaknesses, everyone, and it’s not good to shut the eyes and say, ‘Yes, all fine,’” she said. “Let us commonly make sure that courts remain independent.”