In EU-Poland Spat, Risks to Bloc’s Unity Loom

Warsaw’s efforts to overhaul judiciary spark concern in EU Commission about rule of law

People gathered for an antigovernment vigil in Krakow, Poland, on Wednesday.
People gathered for an antigovernment vigil in Krakow, Poland, on Wednesday. PHOTO: ARTUR WIDAK/NURPHOTO/ZUMA PRESS

The current standoff between the Polish government and the EU Commission over the rule of law risks becoming a new threat to EU cohesion. The dispute goes beyond disagreements over policy to the nature of the European project itself.

The Commission insists that the EU is above all a “community of law”: the rights that membership confers on its citizens hinge on EU law being enforced in all member states via domestic courts.

This makes the independence and impartiality of national judges a legitimate EU concern. And the Commission believes that recent attempts by the Polish government to overhaul the judiciary—including giving the minister of justice powers to dismiss current judges and appoint new ones—is the culmination of a campaign by Warsaw to bring the courts under political control in what one EU official calls a “systemic” assault on the rule of law and democratic values.

The crisis has hardly been defused by President Andrej Duda’s decision last week to veto two of the three proposed laws. The Commission fears that the ruling Law & Justice party might try to push through a similar law again.

Last week, the Commission set out for the first time the red lines which it says, if crossed, would lead it to launch a formal process that could lead to Poland being stripped of its EU voting rights. In particular, it said that any move by Warsaw to dismiss Supreme Court judges would lead to an immediate launch of this process—an unprecedented move that would pit the Commission directly against a national government and force member states to choose sides.

Of course, Warsaw sees things rather differently. Law & Justice party leader Jaroslaw Kaczynski has long insisted that the judiciary, along with other organs of the Polish state, had remained bastions of the old Communist-era elite, which had hung on to its positions and privileges.

Indeed, he and his brother—former president Lech Kaczynski, who died in an air crash in 2010—founded Law & Justice with the goal of establishing a “Fourth Republic,” purged of former Communists.

The party believes overhauling the judiciary is vital, not just because it is the only institution that remains unreformed since Communist times, but because it believes the self-selecting judiciary is guilty of dispensing two-tier justice in which access to justice for most people is limited while those with connections are treated leniently.

Besides, the party argues that many democracies, including the U.S. and Germany, hand politicians a key role in selecting senior judges.

Mr. Duda shares this analysis—and indeed has promised to come up with his own proposals. The president’s decision to use his veto shouldn’t be seen as a victory for the Commission, said a person familiar with his thinking. He believes that the Commission has overreached by interfering in a domestic political issue: under the EU Treaties, the administration of justice is a national competence. Nor does he accept the idea that national judges are EU judges: since EU law is fully incorporated into Polish law and Polish courts defer to the European Court of Justice on questions of EU law, Mr. Duda believes the Commission’s concerns are unwarranted.

Mr. Duda was instead swayed partly by domestic political concerns, said the person familiar with his thinking: concerns that the government proposals placed too much power in the hands of the minister of justice, who is also the prosecutor general; and over the way they were driven through parliament without consultation, including with Mr. Duda himself, giving rise to major public protests that threatened to spill over into wider social unrest.

But also influential in Mr. Duda’s thinking was a series of private warnings by Poland’s partners in its “Three Seas Initiative” that this crisis risked straining Warsaw’s regional relationships. This loose alliance of all 12 former Communist Central and Eastern European EU members is a personal priority of Mr. Duda, who sees it as a potentially important new platform to project Polish economic and strategic interests. The alliance’s recent summit in Warsaw, which was attended by President Donald Trump, was a personal diplomatic triumph.

These interventions by Poland’s Three Seas partners could yet prove decisive in how this saga plays out.

After all, both Warsaw and the Commission know that while the Commission can launch a process to strip Poland of its EU voting rights, it will never succeed because that requires unanimity among the 27 member states and Hungary has promised to veto. But as Mr. Duda tries to steer a course between satisfying Mr. Kaczinski’s demand for a radical overhaul of the judiciary and maintaining public order, he will know that wider Polish interests are also at stake.

Not much unites the members of the Three Seas Initiative but what all of Poland’s central and eastern partners agree upon is the strategic threat to the region’s security from Russia—and a conviction that one of the most effective ways to stabilize Europe’s neighborhood is to hold out the prospect of EU membership to Ukraine and the Western Balkans.

Yet they also know that any prospect of further eastern expansion of the EU is viewed with deep suspicion in Northern and Western Europe, not least because of concerns over the rule of law. Nothing would be more certain to harden that opposition than the perception that the EU is powerless even to defend the rule of law in Poland.

Write to Simon Nixon at


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One Response to “In EU-Poland Spat, Risks to Bloc’s Unity Loom”

  1. daveyone1 Says:

    Reblogged this on World4Justice : NOW! Lobby Forum..

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