Brussels warns Poland over judicial reforms

Efforts to bring courts under tighter political control are raising alarm about Poland’s direction.

The European Commission threatened Wednesday to launch a sanction procedure against Poland, putting Warsaw on a path that could ultimately see it stripped of its EU voting rights.

The warning was a reaction to new Polish legislation tightening political control over the country’s courts, which Commission Vice President Frans Timmermans said could “put the judiciary under full political control of the government.” Timmermans also said the Commission plans to launch an infringement procedure against Poland next week for breaching EU law.

The real heavy artillery, however, would be Article 7, a provision in the EU treaties intended to keep countries from straying from the rule of law and democratic principles. “Given the latest developments, we are coming very close to triggering Article 7,” Timmermans said.

However, that provision has to be adopted unanimously, and Hungary — ruled by Warsaw’s ideological ally Victor Orbán — has said it would veto such a step.

The Commission is also wary of tying EU structural funds to Poland’s democratic performance. Three EU officials who spoke to POLITICO rejected any suggestion that Poland would be threatened with a loss of EU funds, either now or in the EU’s next long-term budget, which comes into effect in 2021.

Polish protests

That leaves the center of the action in Poland, where thousands of demonstrators have taken to the streets outside the parliament, and in other Polish cities, to protest the new legislation.

In a rare display of political defiance, Polish President Andrzej Duda on Tuesday bucked his political patron Jarosław Kaczyński, leader of the ruling Law and Justice party (PiS) and Poland’s most powerful politician, by moving to slow the judicial changes.

Last week, parliament adopted a new law revamping the body that appoints judges, the National Council of the Judiciary (KRS), ending the terms of its 15 judges and allowing parliament, where PiS has a narrow majority, to nominate their successors.

The ruling party then moved onto legislation that would immediately retire all judges on the Supreme Court except those designated by Justice Minister Zbigniew Ziobro, and would lower the requirements for future judges chosen for the court — a step critics say would allow the ruling party to pack the court with its allies.

The Supreme Court is Poland’s top court for civil, criminal and military cases; it also confirms election results.

All of the legislation has to be approved by Duda, a former Law and Justice MEP chosen by Kaczyński to run for president in 2015. He has been leery of vetoing legislation backed by PiS, and has strongly identified with the party’s program despite the Polish tradition of presidents being non-partisan.

Duda’s move

Duda stepped into the polarized debate Tuesday, saying he had submitted his own legislation regulating the KRS. Under his version, new judges would have to be chosen by a three-fifths majority in parliament — and Law and Justice falls short of that on its own.

If parliament does not pass his bill, Duda said he would veto legislation on the Supreme Court. “This project is aimed at preventing the assertion that the KRS is controlled by only one grouping, that it acts under political dictate,” Duda said.

However, Duda made clear he supports PiS’ broader aim of reforming the judiciary. “I agree that reform of the KRS is needed, and with the essential direction of that reform. I’m also convinced that the [Supreme Court] needs reform.”

The Polish president’s intervention came during a stormy debate in parliament over the Supreme Court bill.

Late Tuesday, a furious Kaczyński lashed out at the opposition after MPs said that his dead twin brother, former President Lech Kaczyński, would have opposed the new judicial laws. Kaczyński stormed to the podium of the parliament and accused the opposition of being responsible for the 2010 airplane crash that killed his brother.

“Do not wipe your traitorous mugs with the name of my late brother. You were destroying him, you murdered him, you are scum,” he shouted.

Grzegorz Schetyna, leader of Civic Platform, the largest opposition party, greeted Duda’s unexpected intervention with “relief,” but on Wednesday said the president should be even tougher, calling on him to veto all the judicial bills.

The opposition accuses Law and Justice, and Kaczyński, of subverting the constitution by eroding the independence of the judiciary.

Małgorzata Gersdorf, the chief justice of the Supreme Court, addressed parliament earlier Tuesday, saying there was no reason to eliminate the court. “At the moment the bill says that the minister of justice — in other words, a part of the executive branch — controls everything,” she said. “There is no basis for this in the constitution.”

PiS says the court system is slow, corrupt and inefficient. Kaczyński has called judicial reform “absolutely fundamental,” arguing that 27 years after the end of communism, the courts are still under the control of communists and their heirs. “The courts have essentially stayed the same as in communist Poland,” he told a rally of the ruling party earlier this month.

The average age of a Polish judge is 38.

Kaczyński has long been a foe of the court system, which blocked some of his initiatives during Law and Justice’s previous government, which ruled from 2005-2007. Kaczyński’s view is that the parliamentary majority his party won in 2015 gives it the right to rule the country, without other institutions getting in the way.

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If Duda’s initiative passes, it would make it more difficult but not impossible for the ruling party to control the KRS. PiS has 234 seats in the 460-seat parliament, so falls short of the 276 votes needed if Duda’s bill is approved. However, if it can gain the support of another populist party and independent MPs, it could marshal 277 votes.

The Polish government’s efforts are alarming Brussels. Earlier efforts by the European Commission to defend the Constitutional Tribunal, a court that rules on whether legislation is constitutional, had little effect. PiS now controls that body. The Supreme Court was due to consider in September whether the restructuring of the tribunal was legal.

Ryan Heath in Brussels and Michał Broniatowski in Warsaw contributed to this article.