Poland’s top court strikes down ‘unconstitutional’ reforms

Pro-democracy demonstration. Warsaw, December 2015. [Grzegorz Zukowski/Flickr]

Poland’s Constitutional Court on Wednesday (9 March) struck down a set of government reforms concerning its judges that have paralysed the EU member state’s top court, sparking a constitutional crisis.

The populist Law and Justice (PiS) government, which has drawn criticism at home and abroad over several controversial laws since coming to power in October, said in advance it would not recognise the ruling.

The move appears to have set it on a collision course with the European Union, which launched an unprecedented probe in January into the reforms that could trigger punitive measures.

Commission launches unprecedented probe into Polish judicial reforms

The European Commission launched an unprecedented probe today (13 January) into judicial changes introduced by Poland’s new right-wing government to see if they violate EU democratic rules and merit punitive measures.

Chief Justice Andrzej Rzeplinski said the court found that many sections of the law passed in December 2015 were “non-compliant with the Polish Constitution”.

The law “prevents the honest and proper functioning of the … Constitutional Court, by interfering in its independence and separation from other powers, thus violating the principles of the rule of law,” Rzeplinski said.

The new law also raised the bar for Constitutional Court rulings from a simple majority to a two-thirds majority, while requiring 13 judges to be present for the most contentious cases instead of nine previously, among other changes.

Legal and opposition figures have slammed the law for paralysing the court and removing important checks on the government’s power.

It has also triggered mass street protests by tens of thousands of Poles worried about democracy in the ex-communist EU and NATO member of 38 million people, also an economic and political heavyweight in central Europe.

Thousands back democracy icon Walesa at Polish rally

Some 15,000 people gathered in the Polish city of Gdansk on Sunday (28 February), police said, in a show of support for Solidarity freedom hero Lech Wałęsa as he battles allegations he was a paid secret agent during the Communist period.

‘Checks and balances’

In a leaked draft report, European legal experts from the Council of Europe rights watchdog warned that the government reforms undermine democracy, human rights and the rule of law in Poland.

The commission is due to publish its official report by Saturday. Although its findings are not binding, the European Union is likely to review them as part of its own rule of law probe.

PiS party leader Jaroslaw Kaczynski, seen as Poland’s real decision-maker despite holding no formal government post, has dubbed the Council of Europe opinion “legally absurd”.

He insisted the reforms to the top court were a “matter of national sovereignty” and that government would not back down.

Prime Minister Beata Szydlo discounted Wednesday’s ruling out of hand insisting a day earlier that “the statement that will be delivered by some of the judges of the Constitutional Court will not be a verdict in the legal sense of the term.”

Polish premier tells MEPs Warsaw breached no laws

Poland’s prime minister told MEPs yesterday (19 January) that her government had not breached European or Polish laws, after the EU began an investigation into charges that Warsaw was undermining democratic principles.

Some analysts, however, called the reforms a blow to democracy.

Analysts said “PiS has fundamentally violated the constitution, its contempt for the separation of powers defacto allows me to say without hesitation that democracy has stopped functioning in Poland,” Professor Radoslaw Markowski, a political scientist and member of Poland’s Academy of Sciences told AFP Wednesday.

“There is no rule of law; checks and balances on power are gone,” he added.

Warsaw University sociologist Maciej Gdula told AFP the ongoing “institutional crisis is the worst since 1989”, when Poland shed communism.

“The EU doesn’t really have any way to influence it. The only way would be to exclude Poland from the European Council, but that would require unanimous support and Hungary has already said it would object.”


The European Commission launched an unprecedented on 13 January into judicial changes introduced by Poland’s new right-wing government to see if they violate EU democratic rules and merit punitive measures.

The move comes amid growing concern over changes to Poland’s constitutional court and increased control over state media introduced by the conservative, Eurosceptic Law and Justice party (PiS), which swept to power in October.

Commission First Vice-President Frans Timmermans said that “binding rulings” by Poland’s constitutional court were not being respected by the new Eurosceptic government, “which I believe is a serious matter in any rule of law dominated state”.

Under Article 7 of the Lisbon Treaty, serious breaches to the values of human dignity, freedom, democracy, equality, the rule of law and respect for human rights by a member state can result in a suspension or loss of voting rights in the EU Council of Ministers.

But as Article 7 is described as a ‘nuclear bomb’ which may never been used, the previous EU Commission, under José Manuel Barroso, introduced a "pre-Article 7 procedure", which follows three stages. Those are:

  • Commission assessment: As a first step, the Commission collects and examines all the relevant information and assesses whether there are clear indications of a systemic threat to the rule of law. If the Commission makes such assessment, it will initiate a dialogue with the country concerned, by sending its "rule of law opinion". The country concerned then has the possibility to respond.
  • Commission Recommendation: In a second stage, unless the matter has already been resolved, the Commission issues a "rule of law recommendation" to the country concerned. It recommends that the member state solves the problems identified within a fixed time limit and informs the Commission of the steps taken to that effect. The Commission then makes its recommendation public.
  • Follow-up to the Commission Recommendation: In a third stage, the Commission monitors the follow-up given by the member state to the recommendation. If there is no satisfactory follow-up within the time limit set, the Commission can resort to one of the mechanisms set out in Article 7 of the EU treaty.

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