Poland Dares Europe to Act Over Purge of Judges

(Bloomberg) -- Poland’s dispute with Europe over the country’s political purge of judges has turned into a game of chicken.

The European Union’s top court held a hearing on Monday as part of a bid by the European Commission to suspend Poland’s disciplinary regime for judges, which EU regulators have said undermines democracy. A decision could come within days.

The leadership in Warsaw is using the clash to reinforce support for the ruling Law & Justice party ahead of a presidential election in May. Prime Minister Mateusz Morawiecki is ready to ignore the decision by the court in Luxembourg, according to a senior government official who asked not to be named.

Poland receives more aid on a net basis than any other EU member and is the paradigm of the post-Cold War integration project. Yet it’s become a lingering headache for a continent contending with issues ranging from an argument over its budget following the U.K.’s departure, a new wave of refugees landing in Greece and the coronavirus outbreak.

The standoff revolves around Poland’s overhaul of its justice system since Law & Justice took control in 2015. The five-year power grab, which could culminate next month if Law & Justice takes over the Supreme Court, has effectively given a single political party influence over the judiciary. A recent report by Sustainable Governance Indicators on rule of law put Poland only ahead of Turkey and Hungary among 41 EU and OECD countries.

Poland ignored the rulings of its own Supreme Court and passed a law this year to punish judges for following EU legal procedures. Some 60 Polish judges have been the target of the disciplinary authorities, according to a report by the Polish judges’ association published on Feb. 29.

Punitive measures range from probes and 40% pay cuts to forced transfers and attacks on social media. A top Justice Ministry official resigned in August after accusations that he ran a smear campaign against judges who criticized the government. Last week, Poland began to prosecute a judge who’s questioned the legality of the government’s actions.

“Poland’s justice system is seriously ill,” said Michal Wawrykiewicz, a Warsaw-based lawyer who represented independent judges in a case heard by the EU Court of Justice. “If it’s not contained it will spread and attack the EU’s common legal framework. You can’t safeguard a system that includes financing, funds, values and human rights without an independent and impartial judiciary.”

The government argues that its judicial changes are similar to some other EU members and says European institutions don’t have the authority to interfere in how Polish courts are run.

Law & Justice leader Jaroslaw Kaczynski, the country’s most powerful politician, told the Gazeta Polska newspaper last week that the European Court of Justice is “acting as if it were a side in a political dispute” and is “helping the opposition.”

President Andrzej Duda, who is campaigning for re-election, has painted the court as the bogeyman for Poland.

“I’m the president of Poland and I say this: they won’t impose on us—in foreign languages—how to manage Polish matters,” Duda said in Zwolen, southeastern Poland, as he stepped up campaigning in January. “Yes, we’re part of the EU, but first and foremost we’re Poland.”

The government is betting that the EU isn’t able to stop its actions, and recent evidence suggests it may be right after threats of financial penalties or diminished voting rights so far came to nothing. Indeed, Poland is protected by a veto from Hungary, which is also at loggerheads over rule of law and the takeover of democratic institutions.

That said, Norway last week suspended 700 million kroner ($74 million) of funding for Poland’s judicial system via grants it provides under an agreement to freely trade with the EU as a non member. The decision is a “clear signal” of concern about the rule of law in Poland, said Audun Halvorsen, state secretary at the Norwegian Foreign Ministry.

According to Donald Tusk, a former Polish prime minister and the country's highest-ever ranking EU official, Law & Justice doesn't understand the bloc’s consensus-based approach to decision making. The party sees politics as “an unrestricted power play,” Tusk said in Bialystok, eastern Poland, on Feb. 24. “If we give into this, we’re on the way to a catastrophe.”

Poland now stands on the verge of having its judiciary effectively leave the EU’s interconnected legal system. That could mean that Polish judicial decisions aren’t respected by its EU partners.

A German court said last week that it rejected a Polish extradition request, citing recent judicial reforms that made it impossible to guarantee a fair trial in Poland. 

EU Court of Justice President Koen Lenaerts, whose tribunal is weighing a suspension of the Polish measures, said in Warsaw this year that “you can’t be a member of the EU if you don’t have independent, impartial courts.” 

European diplomats in Warsaw privately warn that Poland is heading in a “suicidal” direction. The question is how Poland responds.

“The legal and political ramifications of open defiance could be many and significant,” said Laurent Pech, a professor of European law at Middlesex University in London. “This could lead to the imposition of financial sanctions, more legal action and politically speaking, we could see more pressure being put on EU institutions to find ways to suspend funding to Poland.”

--With assistance from Stephanie Bodoni.

To contact the editor responsible for this story: Balazs Penz at bpenz@bloomberg.net, Rodney Jefferson

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