Prime Minister Morawiecki stated in his address to the European Parliament, 19 October 2021, that “European integration is a civilizational and strategic choice. We are here, we belong here and we are not going anywhere”. Really? Mr. Prime Minister, under your watch Poland is drifting away ever further from from the EU in dangerous times. You stated as well at that occasion that “over 85% of Polish citizens say clearly: Poland is and remains a member of the European Union”. So why are you undermining the European Union if 85% of Polish citizens are in favour of this great undertaking? Why are you undermining the independence of the judiciary, cutting the cord linking the European Member States’s justice systems to the European one? Why are you undermining the European Court of Justice? Why are you even undermining your Constitutional Tribunal and your Supreme Court by creating a Disciplinary Chamber which would have done the Star Chamber proud?

If you really believe that the “the primacy of Union law does not apply to the provisions of the Constitution”, meaning the Polish Constitution, if you really believe that Poland should return to the bad old days when the pronouncements of judges where under control of the Communist Party, with the single difference that these controls are exercised by a Disciplinary Chamber, if you really believe that a judge should be prosecuted by a Disciplinary Chamber for applying European Law, you should state openly to the 85% of Polish citizens who appreciate being part of the European Union, that you are risking to lead your country away from the EU.

Am I exaggerating or just bringing common knowledge into the open? The president of the European Commission, Mrs. von der Leyen, could not be clearer in her opening statement for the debate in the European Parliament which you attended, 19 October 2021, when she said:

“Mr. President, almost 40 years ago, in December 1981, the communist regime in Poland imposed martial law. Many members of Solidarnosc, the independent trade union, and of other groups were put in jail, simply because they stood up for their rights.

The people of Poland wanted democracy, like millions of other Europeans from Budapest to Tallinn to East Berlin. They wanted the freedom to choose their government, they wanted free speech and free media, they wanted an end to corruption, and they wanted independent courts to protect their rights. The people of Central and Eastern Europe wanted to join the European family of free people, a strong community of values and democracy. Because that is what Europe is about and that is what Europe stands for.

The recent ruling of the Polish constitutional court puts much of this into question. We have been concerned about the independence of the judiciary for some time. Judges have seen their immunity being lifted and have been driven out of office without justification, and this threatens judicial independence, which is a basic pillar of the rule of law.

We have taken a number of measures. We continue to have a regular dialogue. But unfortunately the situation has worsened. And this is not only the Commission’s opinion, this is what has been confirmed by the European Court of Justice and the European Court of Human Rights. And now this has culminated in the most recent ruling of the Polish constitutional court.

The European Commission is, at the moment, carefully assessing this judgment, but I can already tell you today that I am deeply concerned. This ruling calls into question the foundations of the European Union. It is a direct challenge to the unity of the European legal order. Only a common legal order provides equal rights, legal certainty, mutual trust between Member States and, therefore, common policies. This is the first time ever that the court of a Member State finds that the EU treaties are incompatible with the national constitution. 

This has serious consequences for the Polish people because the ruling has a direct impact on the protection of the judiciary. The ruling undermines the protection of the judicial independence, as guaranteed by Article 19 of the Treaty and as interpreted by the European Court of Justice. Without independent courts, people have less protection and consequently their rights are at stake. 

Polish people must be able to rely on fair and equal treatment in the judicial system, just like any other European citizen. In our Union, we all enjoy the same rights and this basic principle fundamentally impacts people’s lives because, if European law is applied differently in Grenoble or Göttingen or Gdańsk, EU citizens would not be able to rely on the same rights everywhere. 

When joining the European Union, the Polish people put their trust in the European Union. They expected the European Union to defend their rights, and rightly so. The Commission is the guardian of the Treaty. It is my Commission’s duty to protect the rights of EU citizens wherever they live in our Union. The rule of law is the glue that binds our Union together. It is the foundation of our unity. It is essential for the protection of the values on which our Union is founded: democracy, freedom, equality and respect for human rights. This is what all 27 Member States have signed up to as part of this Union, as sovereign countries and free people. 

We cannot – and will not – allow our common values to be put at risk. The Commission will act, and the options are all known. The first option are infringements, where we legally challenge the judgment of the Polish constitutional court.” (Debates, 19 October 2021, Strasbourg, The Rule of law crisis in Poland and the primacy of the EU law)

Time and again the arguments of the Polish Government were rejected. The European Court of Human Rights held that the Civil Chamber of Poland’s Supreme Court lacks impartiality and independence, violating a company’s right to a proper hearing in Advance Pharma Sp. Z.o.o.v. Poland, 3 February 2022, a right enshrined under Articles 6 and 1 of the European Convention on Human Rights. In Dolinska-Ficek and Ozimek v. Poland the ECHR held that the procedure followed for the appointment of judges was influenced by legislative and executive powers. It’s hard to conceive of a worse position in the community of democracies than having to live with such a judgement, and not trying to do something about it. The European Court of Justice now rendered several judgements to the same effect. I commented on one of them, regarding the Disciplinary Chamber, in my previous blog.

It hurts to see Poland sliding away in this fashion. Mrs. von der Leyen referred to the impostion of martial law, December 1981. As a young diplomat I was sent from East-Berlin to carry letters and supplies to our embassy in Warsaw that December, and saw the empty shops and the tanks in the streets that day getting off from the train. Nothing but vinigar, the people quipped at the time, was to be bought those days. Later, I was posted to Warsaw, mainly working there on the preparation of the Polish accession to the European Union. I never heard then that there were reservations regarding the constitutionality of the European Treaties or the primacy of European Law.

Mr. Morawiecki stated that day in the European Parliament that the “Constitutional Court may examine the ultra vires condition (..) that is, determine whether the actions of the institutions of the Union violate the principle of conferral when the institutions, bodies, organs and agencies of the Union have exceeded the scope of their powers in a way that violates that principle. No, Mr. Morawiecki, the proper instance to address such questions is the European Court of Justice. Moreover, appointing judges without sufficient guarantees for their independence and impartiality, and having that procedure accepted by the highest courts in the land, disqualifies Poland as a country where the Rule of Law is held in high regard. You are on your way of returning Poland to a time when the Communist Party would whisper the “correct” judgment in the ears of the judges.