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

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EU leaders may want to push their rule of law with Poland as far as possible, but the legal ramifications of the dispute cannot be so easily ignored.

With a series of controversial judicial reforms and a court ruling calling into question the EU’s legal basis, the Polish government may have started a process that effectively decouples the country’s legal system from the rest of the bloc. And there are fears that others will follow Warsaw’s path.

This could mean the dissolution of the EU’s common legal system – judges refusing to extradite criminal suspects to Poland, challenging cross-border disputes on anything from divorce to commercial contracts, Polish judges being disciplined for applying EU law. The consequences for people and companies could be massive.

Nevertheless, in recent days some EU heads of state and government have adopted an increasingly conciliatory tone towards the country – a large economy of great geopolitical importance for many of its allies. At a European Council summit last week, many heads of state and government urged a dialogue on swift punishment.

That has not softened the rhetoric from Warsaw. Polish Prime Minister Mateusz Morawiecki warned in a Financial Times interview published Monday that if the European Commission “starts World War III” by withholding promised cash from Warsaw, it “would defend our rights with all the weapons at our disposal”.

Efforts to evade a fight by EU leaders have raised questions about the bloc’s commitment to enforcing rule of law standards – and whether a compromise on the basic principles of the EU legal system is even possible. Poland has committed to make some changes to its judicial system but has not committed itself to any details. And it has to shrink from the latest dispute – a court ruling that calls into question the supremacy of EU law.

The situation, said Filippo Donati, President of the European Network of Councils for the Judiciary, is “a major threat to the European Union”.

The EU internal market, its “entire system”, according to Donati, is based on the assumption that every country implements EU law equally. If that goes away, he argues, the EU cannot work. Poland either accepts “the principles of European Union law” or orchestrates an “exit” from the EU, he said.

Polish officials insist that such fears are exaggerated, an exaggeration intended to lead Warsaw to comply with the wishes of the EU. Poland has no interest in leaving the EU.

“The Union will not break because our legal systems are different,” said Morawiecki last week before the European Parliament.

Brewing beef

Poland’s ruling Law and Justice Party (PiS) has been criticized for years for its ongoing campaign to transform the legal system.

Many Polish judges have protested against what they believe the government is systematically undermining their independence. In its Rule of Law Report 2021, the European Commission expressed Concerns about the way Poland is now disciplining and appointing judges.

Tensions deepened earlier this month when the Polish Constitutional Court, deemed illegitimate by the EU institutions themselves, declared certain parts of the basic EU treaties to be incompatible with the Polish Constitution. Legal experts and Brussels officials said the ruling challenged the notion that all member countries must apply EU laws.

The court’s ruling brought the long-simmering tensions between Poland and the EU to boil over. MEPs put pressure on the European Commission to impose fines on Warsaw. Several EU heads of state and government specifically called for action.

But fearing a rift within the bloc at a time when the continent is just beginning to recover from the pandemic and an ambitious climate agenda, European leaders tried last week to calm things down.

“I want to be optimistic,” said French President Emmanuel Macron after the summit, calling on the EU to place “real demands” over “dialogue and respect”. For her part, Commission President Ursula von der Leyen said her team would pursue a combination of dialogue, legal responses and concrete action.

Poland, separately

A situation that has unsettled judges, business representatives and experts. They warn that the stalemate could have a multitude of negative consequences for the economy – and even for the everyday lives of citizens.

Family law could soon become more complex, they warn, when cross-border divorce proceedings with Poland are called into question. Commercial disagreements with Poland and Polish companies could get caught up in a legal quagmire.

“When you think of all the cross-border litigation between European residents and European companies, why should anyone trust Polish courts from now on?” Said Laurent Pech, professor of European law at Middlesex University.

According to Pech, the first consequence should be European arrest warrants.

“Surrender to Poland will most likely be stopped by national courts,” he said, as judges fear that Poland’s courts could become too politically compromised.

Earlier this year, an Amsterdam court rejected the extradition of a Polish drug trafficking suspect, citing legal concerns and “a real risk” that the accused would not get a fair trial in Poland.

In principle, European judges can doubt whether they can work with their Polish colleagues.

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

“How can I continue to trust the Polish judiciary when I have the Polish? [Constitutional Tribunal] said, ‘I am not going to obey the judgments of the European Court of Justice?’ ”he said.

In Poland, some judges are resisting the verdict. Dorota Zabłudowska, member of the national board of the Polish Judges Association, described the decision as unlawful.

“We do not believe that it is binding on us,” she said, pointing to the “improper” composition of the tribunal and pointing out that the panel “cannot prohibit” judges from applying European law.

Poland can, however, punish judges retrospectively.

Zabłudowska noted that judges could have ramifications for the application of EU law, including “disciplinary or criminal charges”.

“If the government doesn’t like what the judges are doing,” she said, “just send the prosecutor after us.”

Therefore, European judges should carefully examine where a Polish judgment comes from, argued Zabłudowska.

“When a foreign court receives a European arrest warrant, it should first check that the person who issued the warrant has been properly appointed to a judicial office,” she said.

Morawiecki has repeatedly resisted such assessments. Speaking to Parliament last week, he insisted that the latest court ruling did not devalue the EU treaties. But he still claimed that the Polish constitution actually comes first.

Poland’s courts, he said, “have never found that the provisions of the Treaty on Union are completely incompatible with the Polish Constitution. On the other hand! Poland fully respects the treaties. “

Business chaos

The European economy relies to a large extent on EU guarantees that judges will apply the same European standards in disputes before a court in Lisbon, Warsaw or Berlin.

If companies can no longer assume that Poland will follow these rules, it risks opening a legal Pandora’s box.

“Once we start not to apply EU law, 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 break the bloc’s economy.

“This is a concern that people might start choosing what they want,” said Irish Minister for European Affairs Thomas Byrne. “And that is a real concern, not only for our values, of course, but also for the internal market.”

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

For companies that rely on courts to resolve disputes, the judgment of the Polish Constitutional Court has been worrying. Not only does this create legal uncertainty, but it has also contributed to lingering questions about whether Poland will get its funds to restore the pandemic from the EU. The Commission has approved € 36 billion

“Anything that leads to legal uncertainty concerns the economy,” says Christoph Leitl, President of Eurochambres, the association of European chambers of industry and commerce. It is worrying to see this now in the single market, especially as companies are tracking their activities, supply chains and networks to rebuild the pandemic. “

“This ruling risks undermining the recovery process for Polish companies as well as other European companies with trade ties in Poland,” he said.

Beyond Poland

Amid growing fears about Poland’s participation in the EU legal order, some experts have expressed concerns about possible contagion if Warsaw’s steps are not taken into account.

“This is a very dangerous precedent for the entire European community,” said Zabłudowska from the Polish Judges Association.

The EU has argued with other members such as Hungary and Slovenia about compliance with certain EU standards and requirements.

“When other countries with authoritarian traits see that the Constitutional Court in Poland said that European law or European court rulings cannot be applied and nothing has happened, then they will do the same in their own countries,” she said.

When asked whether she feared that other countries might follow Poland’s path, Zeller said that everything depends on the independence of the judiciary.

“Every judicial system has certain weaknesses, everyone, and it is not good to close your eyes and say, ‘Yes, everything is fine,'” she said. “Let’s work together to ensure that the courts remain independent.”

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