Defiant Poland Scoffs at EU Rebuke Over Eroding Rule of Law

  • Brexit-weary EU not sure how to deal with Poland’s lapses
  • Ruling party plans further revamp of court at center of row

The European Union gave Poland three months to respond to its guidance on how to restore the constitutional court’s authority or face losing its voting rights. Warsaw replied at the last minute by accusing bureaucrats in Brussels of being stupid.

QuickTake Poland’s Populist Turn

The European Commission has “incomplete knowledge” about Poland’s legal system, the Foreign Ministry said in a late-evening statement on Thursday. “We had no choice but to assess the Commission’s recommendation as groundless.”

Nine months after becoming the target of the commission’s first-ever probe into a member state’s commitment to democracy, Poland’s maverick Law & Justice party is pushing the country of 38 million people further into uncharted territory. Poland is betting that an EU already divided by Brexit, migration and tepid growth won’t risk escalating the conflict that Warsaw casts as a battle between an intrusive Brussels and sovereign member countries.

“The relatively delicate approach of the Commission has been dictated by hope it can avoid opening new fault lines with eastern members amid Brexit and the migration crisis,” said Kamil Zajaczkowski, a political science professor at Warsaw University. “That said, the Commission can’t fully back off as the standoff is about core European values."

Futile Options

While European Commission First Vice President Frans Timmermas said last week that the EU executive won’t drop the matter, escalating the issue and forcing a vote on whether Poland should have its EU voting rights suspended appears futile, according to EU President Donald Tusk. Such a proposal, which wouldn’t gain the required support from all 27 other EU members, would be a “waste of time,” said Tusk, a former Polish prime minister.

Poland’s government has refused to publish two Constitutional Tribunal rulings that strike down its overhauls of the top court, preventing them from becoming binding. President Andrzej Duda, a former Law & Justice lawmaker, hasn’t sworn in three justices appointed to the panel by the previous parliament, while his party was in the opposition.

Three months ago, the EU’s executive recommended Polish authorities change these actions to restore the tribunal’s ability to effectively review legislation and strengthen its role as a safety fuse in Poland’s democratic order. Meanwhile, Law & Justice this week published draft legislation which would help it gain control over the judiciary panel.

Constitutional Safeguard

The latest revamp proposes changing the way the panel’s chief justice is picked. If implemented, it would bar outgoing chief Andrzej Rzeplinski, whose term runs out in December, from having a say in choosing his successor and hand control of the court, at least during a transition period, to a justice hand-picked by the ruling party. This breaks with tradition that the Tribunal chooses its own leaders and undermines the constitutional division of powers, according to opposition parties.

A system based on the rule of law, and safeguarded by the Constitutional Tribunal, is the “most important institution” built in Poland after communism ended in 1989, according to Jacek Rostowski, a former finance minister and member of opposition Civic Platform party. “It was the basis for Poland’s development for 27 years. Evidently, this may not be the case in the future,” he told an economic forum in Warsaw on Friday.

The standoff has weighed on Polish assets, undercut investment in the economy and driven tens of thousands of Poles to the streets in repeated protests. Attempts to consolidate power also prompted S&P Global Ratings to hand the sovereign its first-ever rating downgrade, citing growing risks to the independence of key institutions.

While the rule-of-law procedure itself doesn’t directly endanger the billions of euros in funds Poland receives from the common EU budget, it erodes goodwill toward Warsaw and leaves the country vulnerable the next time the bloc divides up cash, according to Zajaczkowski. Even so, the EU can’t overplay its hand.

“Punitive measures from Brussels would fuel anti-EU sentiment and support trends that the bloc is trying to fend off,” said Kazimierz Kik, a political scientist at Jan Kochanowski University in Kielce.

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