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7th Dec 2019

Commission takes Poland to court on eve of election

  • Polish prime minister Mateusz Morewiecki with EU commission president Jean-Claude Juncker (Photo: European Commission)

The EU commission will take Poland to the EU's top court over new rules to discipline judges, the EU executive announced on Thursday (10 October).

It is the third case the commission has referred to the court in recent years on rules introduced by the ruling nationalist-conservative Law and Justice party (PiS) - which is poised to win a second term at general elections this weekend.

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The commission said the government's new disciplinary regime "undermines the judicial independence of Polish judges and does not ensure the necessary guarantees to protect judges from political control".

The Polish law allows ordinary court judges to be subjected to disciplinary procedures and sanctions on the basis of the content of their judicial decisions, and means that "judges are not insulated from political control and thus judicial independence is violated", according to the commission's assessment.

Previously the commission took the Polish government to the Luxembourg-based European Court of Justice (ECJ) over a law on the retirement provisions for Supreme Court judges that infringed the court's independence. The court this summer found that the Polish law breaks EU rules.

The EU executive also referred Polish legislation on ordinary courts to the European Court of Justice on retirement provisions and their impact on the independence of the judiciary.

Poland also has several court cases pending over migration and climate change.

The EU and rights group have argued that PiS has been weakening democracy in Poland over recent years by putting media, the courts and NGOs under pressure.

For the first time in its history, the EU commission in 2017 launched an Article 7 sanctions procedure against the Polish government for putting EU rules and values at risk.

The procedure is now stuck in the council of EU countries, with member states reluctant to move towards sanctions.

Sunday election

Despite the ongoing legal and political battles with the EU, the PiS government is expected to win a second term on Sunday (13 October) as its popularity seems undiminished back home.

It remains popular for expanding social spending in a country where many feel they have not benefitted from the transition to democracy and free-market capitalism 30 years ago.

PiS reversed the previous Civic Platform (PO) government's 2012 increase in the pension age to 67, back to 65 for men and 60 for women. Their welfare program did help low-income families. Now the party promises to significantly raise the minimum wage.

The government also recently approved a bill that would allow payment of an existing child benefit program for second children to first-born ones.

Its combative, nationalistic rhetoric over perceived threats from Germany, the EU, migrants and, most recently, against the LGBTI community, has also worked for the ruling party, which prides itself to be the defender of traditional values.

PiS' rhetoric and efforts to curb checks and balances on its power shows strong parallels with Hungary's ruling Fidesz party, and its prime minister Viktor Orban, who portrays Hungary as the defender of Christian values in Europe.

Poland's PiS can count on strong support this weekend from voters in rural areas, from lower-income groups and among devout Catholics with conservative social values.

PiS might receive around 42 percent of the vote, according to an opinion poll by Kantar, while the main opposition group, the Civic Coalition (a coalition between the Civic Platform and liberal and green parties), could get 29 percent. A leftist coalition, the Left, polls around 13 percent.

PiS's parliamentary majority also depends on how many parties make it beyond the 5 percent parliamentary threshold.

The party's win foreshadows continued battles with the EU, but it might be softened as negotiations on the EU's long-term budget get tenser in the months to come, and the Warsaw government wants to secure subsidies from the bloc.

"If PiS wins a parliamentary majority in both houses of parliament, it would probably attempt to further undermine democratic checks and balances. For example, PiS wants to make it easier for the government to lift the immunity of judges," Agata Gostynska-Jakubowska, a senior research fellow at the Centre for European Reform, wrote in a recent analysis.

PiS might also target the media, she warned.

As the PiS government saw itself crucial in the nomination and parliamentary election of commission president-elect Ursula von der Leyen, the government hopes she will be more forgiving on rule of law issues than current commission vice-president Frans Timmermans, according to Gostynska-Jakubowska.

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