The European Commission is taking Poland to court over rulings from Polish judges considered by experts as a “legal Polexit” that fundamentally undermine the EU’s legal order.
The decision to refer Poland to the European court of justice on Wednesday – described by one expert as a bombshell – comes as Poland’s rightwing nationalist government battles to secure €35.4bn (£31.4bn) in EU Covid recovery funds that have been frozen over concerns about government-influenced courts.
The latest legal step ratchets up pressure on the Polish government, which faces elections this autumn and has been struggling to convince EU authorities to release billions of grants and loans.
The EU’s legal case is a response to a July 2021 decision by Poland’s constitutional tribunal that declared measures imposed by the ECJ unconstitutional, a fundamental breach of the principle of the supremacy of EU law, which Warsaw signed up to when it became an member state.
Legal experts have described the July 2021 decision as “legal Polexit” that could indicate a first step towards Poland’s departure from the union, despite opinion polls showing the popularity of the EU across the country.
The commission opened legal action against Poland in December 2021, but has only now decided to refer Warsaw to the ECJ, after more than a year of fruitless discussions.
Announcing the decision on Wednesday, the commission said Poland’s constitutional court had violated EU law and the government had failed to address its concerns.
“Everyone in the EU should enjoy the fundamental principles and the rights of the EU legal order, including the right to a court that is independent under EU law,” tweeted the EU justice commissioner, Didier Reynders.
The dispute over the rule of law dates back to the return to power of Poland’s nationalist Law and Justice party in 2015, when it began installing loyalists in the courts. EU officials believe Poland’s constitutional tribunal is no longer an independent and impartial court, owing to “irregularities” in the appointment of its president and senior judges.
As a result of concerns over the independence of Polish courts, the commission has withheld €35.4bn in recovery grants and loans, pending reforms to Poland’s judicial system. The head of the European Commission, Ursula von der Leyen, has laid down three conditions for releasing the funds: dismantling a disciplinary chamber for judges within Poland’s supreme court; changing the judicial disciplinary system; and reinstating judges suspended under current rules.
But Poland’s government – divided between moderate forces desperate for EU funds and hardliners who oppose backing down – has so far been unable to agree reforms that meet the EU conditions.
Adding to the uncertainty, Poland’s president, Andrzej Duda, last week refused to sign a key judicial reform bill the government had hoped would meet EU tests and unlock the funds. Duda referred the bill to Poland’s controversial constitutional tribunal for a ruling on its compatibility with Poland’s constitution.
Jakub Jaraczewski, a researcher at the Berlin-based NGO, Democracy Reporting International, described the commission’s latest legal step as a bombshell, while also criticising the EU executive for acting too slowly.
He highlighted the widespread view that Poland’s staunch support for Ukraine and help for millions of Ukrainian refugees may have slowed down the commission’s response. “Yes, I know, war, tanks, Poland first to fight, how much you can pile on a country that carries so much weight right now,” he wrote on Twitter. “But Russia will be defeated and the Polish rule of law problem won’t go away with that. So, great that this is happening, but it could have been sooner.”
