The EU yesterday (21 December) gave Poland’s rightwing government another two months to reverse changes to its constitutional court or face sanctions, warning they posed a “substantial” challenge to the rule of law.
The move came a year after the conservative Law and Justice (PiS) party swept to power and pushed through controversial legislation.
“We then invite the Polish government to react, to respond to these additional recommendations within the timeframe of two months,” European Commission First Vice President Frans Timmermans told reporters.
The recommendations include adhering to the action already requested in July, respecting decisions made by the country’s Constitutional Tribunal and providing full transparency of any rulings made by the court.
Since coming into power after eight years in opposition, the PiS has changed the way the constitutional court operates, including the order in which cases are heard and how the chief justice is chosen. It has also put forward its own judges instead of those approved by the previous parliament.
Critics say the reforms undermine judicial independence and the system of checks and balances. They cite other PiS bids to consolidate power including moves to increase state control over public broadcasters.
At the end of July, the EU handed Poland a three-month deadline to reverse changes to the court or face sanctions, but Warsaw rejected the warning.
Timmermans said sanctions were still in “the toolbox” Brussels could use if Poland failed to solve the problems within the new deadline.
“We will not exclude any measures that we can take,” Timmermans said. “But we will cross that bridge when we get there.”
Guy Verhofstadt, Belgium’s former prime minister and now leader of the Liberal group in the EU Parliament, urged the European Commission “to move from dialogue to action”.
“This crisis has only got worse over the last months. Now, the constitutional court is under the political control of the ruling party, (and the) constitutionality of laws cannot be checked and ensured any more,” he said in a statement.
“Thousands of Polish citizens have been marching for months now. They wave the flag of the European Union and call desperately for help. We must not let them down.”
The socially conservative PiS party dominates Polish politics, controlling parliament and the government. President Andrzej Duda, while formally independent, hails from the PiS and is allied with its members.
Clashes over their judicial reforms have given rise to a popular movement, the Committee for the Defence of Democracy, which has staged demonstrations in Warsaw and other cities to denounce what it calls an attack on Poland’s democratic institutions.
Timmermans said that despite the earlier warning Warsaw had still not addressed EU concerns, including demands by the Commission for the constitutional court rulings to be published and implemented.
“We do believe there is a persistent problem with the rule of law,” Timmermans said.
The EU recommendations amount to a second step in a unprecedented procedure that could see Warsaw’s voting rights suspended in the Council of Ministers, the EU’s highest decision-making body.
But in a move seen by critics as a further bid to bring the judiciary to heel, Duda on Wednesday named a PiS-backed judge to head the constitutional court.
‘End court squabbling’
The court’s chief role is to check that Polish laws are compliant with the constitution.
Judge Julia Przylebska takes over from the court’s outgoing president, Andrzej Rzeplinski, whose term expired on Monday (19 December) and who was considered a symbol of resistance to the government during the long-standing constitutional feud.
The 57-year-old Przylebska, who the PiS government appointed to the court last year, will be the country’s first woman to serve the nine-year term as chief justice.
Duda called on her to impose order, saying, “I want an end put to the shocking squabbling within the court”.
Przylebska’s designation was made possible by one of three parliamentary reforms, all of which according to Rzeplinski go against the constitution. One of the Commission’s recommendations was that the court be led by its current deputy until its rulings are fully published and “not by the person appointed as President of the Tribunal on 21 December 2016”.
The court’s deputy president is Stanislaw Biernat. He said one of Przylebska’s first moves in her new role was to order that his desk be moved to a room farther away from hers.
“It’s strange that this is one of her first decisions. These are her priorities,” he told reporters.
But he said no rebellion was planned by the rest of the bench: “The court will continue to issue rulings, even if it’ll be under tougher conditions.”