January 8, 2020

POLAND: Judicial reform returns to spotlight

BY Andrius Tursa

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( 4 mins)
  • Despite domestic and international criticism, the ruling Law and Justice (PiS) party will likely advance new disciplinary measures for judges along with a raft of other changes in the area of the judiciary.
  • The move will reinforce concerns about the quality of democratic institutions in Poland and could further undermine investor confidence in the country.
  • The PiS advancement of its controversial judicial reform will keep tensions with the EU high and may reinforce calls to link the EU financial support to the rule of law criteria in the 2021-2027 programming period.

On 20 December, the lower chamber of Polish parliament (Sejm) in a rushed procedure passed multiple amendments to the laws on the structure of ordinary courts, on the Supreme Court and other legal acts. Some of the most contentious provisions introduce disciplinary measures for judges – including fines or dismissal – for political activities or criticism of the government’s policies in the area of the judiciary. The legislation also changes the appointment procedure of the First President of the Supreme Court – currently one the most influential opposition figures to the PiS judicial reforms – whose six-year tenure ends in April.

The amendments follow the Polish Supreme Court’s ruling of 5 December – mandated by the Court of Justice of the European Union – concluding that the National Council of the Judiciary overhauled by the PiS in 2018 was not an independent body, while the newly created disciplinary chamber of the Supreme Court could not be considered a court within national or the EU law. This ruling opened the door to challenge the legality of decisions of these bodies thus posing a risk to the PiS judiciary reforms.

The controversial amendments will now be considered in the upper house of parliament (Senate), which may propose further changes to the legislation or reject it altogether by 22 January. The case will show whether the opposition – which gained a slim majority in Senate in the October 2019 general elections – is able to unite and challenge controversial policies pushed by the ruling PiS. However, the Senate can only delay the adoption, as the rejection of the bill can be overturned by an absolute majority of votes in Sejm. President Andrej Duda (independent, associated with PiS) has expressed his backing for the proposed changes and is not expected to veto them.

Having increased political influence over virtually all levels of the judiciary during the previous term, the PiS appears committed to continue the judiciary reform in its new four-year mandate. Such actions pose a risk to democratic institutions and may further undermine investor confidence in the country. At the same time, the rule of law issue will keep Poland’s relations with the EU tense. The EC Vice President for Values and Transparency Vera Jurova – who is due to meet Poland’s Senate leader Tomasz Grodzki (Civic Platform) on 8 January in Brussels – has requested to halt the adoption procedure, calling for a consultation with the Venice Commission and domestic stakeholders. However, the PiS is unlikely to back down.

It is unclear what approach the new von der Leyen Commission adopts in response. There was virtually no progress on the Article 7 procedure in 2019 as it remains unlikely to result in sanctions against Poland. While the infringement procedures targeting specific aspects of the judicial reform forced the ruling party to backtrack on some issues, they have not been able to change the overall direction of the reforms. The continued attempts to strengthen political influence over the judiciary – in contradiction to the EU law and values – could reinforce proposals to link the distribution of EU structural funds to the rule of law criteria in the Multiannual Financial Framework (MFF) for 2021-2027. However, advancement of such plans would likely trigger a strong backlash from Poland (and Hungary) – which was the largest recipient of EU support in the 2014-2020 period – adding another layer of complexity to the already difficult negotiations over the next MFF.

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