Poland. Not what Brussels wanted
Poland’s ruling Law and Justice party (PiS) took full control of the country’s Constitutional Tribunal (TK) on December 19 when Andrzej Rzeplinski, the head of the tribunal and a prominent PiS opponent, stepped down.
Under Rzeplinski – a social conservative but a firm defender of the court – the tribunal had represented the last remaining check and balance on the PiS’ domination of Poland’s political scene. The end of his term means the new PiS-appointed chairman will be able to assign PiS-friendly judges to nobble any constitutional challenges to the ruling party, which already controls parliament and the presidency, and has made a clean sweep of the leadership of state-owned media, enterprises and agencies.
Rzeplinski’s successor will be picked by PiS-friendly President Andrzej Duda. Very few in Poland think Duda can act independently of the party that elevated a rather obscure MEP to the position of the head of state in May last year. Until the president chooses the new head, the TK will be managed by acting head, Julia Przylebska, a PiS loyalist.
TK has been deadlocked in any case because of the war PiS waged on the tribunal to replace judges nominated by the previous Civic Platform government. PiS has also refused to publish TK rulings whenever they ran counter to what PiS wanted – such as when the tribunal struck down its laws changing the organisation of the TK’s work in order to render the tribunal completely ineffective.
Rzeplinski’s replacement will also have greater powers than his predecessor. PiS has recently pushed through the parliament a series of laws on how the TK will function. Once the president signs them, they will give the new head of the TK a lot more power than Rzeplinski had.
Because of the standoff over the TK, Poland has been subject to a probe from the European Commission regarding Warsaw’s adherence to the rule of law. The Commission has said a number of times now that Poland has ignored its recommendations on the TK, but it seems unlikely Brussels would like to go as far as to push for stripping Poland of its voting rights in the bloc. This would mean adding a very big new problem to the organisation already struggling with Brexit, rising populism, Greece, and the refugee crisis.
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- The European Commission has given Poland two months from December 21 to solve the crisis around the country’s Constitutional Tribunal (TK).
- The EU executive issued the ultimatum after Poland’s ruling Law and Justice party (PiS) seized control of the court on December 20 when Andrzej Rzeplinski, tribunal chairman, stepped down at the end of his term. This removed the last check on PiS’s untrammelled rule.
- The PiS rejected the court’s nominations for the new chairman and instead nominated as acting head Julia Przylebska, a PiS loyalist, under new laws the PiS had passed to ensure a party loyalist will head the court. She immediately struck off three judges proposed under the previous government and admitted three PiS-nominated judges that Rzeplinski had barred from ruling. The populist party later made Przylebska the new permanent head of the court.
- These legal manoevres had already caught the attention of the Commission, which launched a probe into the state of the rule of law in Poland in January, when PiS began the process of engineering the court’s line-up to ensure it cannot get in the way of planned reforms.
The Commission has now issued additional recommendations on what Poland needs to do end the crisis, which compromises the independence of the judiciary that is of “paramount importance to the rule of law”, the Commission said.
The additional recommendations follow recommendations issued in late July that PiS however ignored. A previous deadline lapsed in October. There is little to indicate the ruling party will not ignore the new recommendations now that it has secured control of the TK.
The Commission also appears determined. “The Commission will not drop this matter and will continue to look for solutions in dialogue with Polish authorities without prejudice to other steps we might have to take if this dialogue continues to remain without results,” it said in a statement.
If Poland continues to ignore the Commission’s recommendations the EU could invoke Article 7 of the Treaty of the European Union, which strips a member state of its voting rights in the bloc.
The article has never been used and launching it requires unanimity of member states during a difficult time for the EU, facing Brexit, Greece’s continuing crisis, the refugee wave and the consequent rising wave of populism. Hungary, ruled by populist strongman Viktor Orban, has already pledged to veto any sanctions against Poland.
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