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Alicia Hinarejos
Much has been written since the Polish Constitutional Court delivered its judgment in case K 3/21, on 7 October 2021, in which it declared some elements of the EU Treaties incompatible with the Polish Constitution. On the face of it, the case—a challenge brought by the Polish Prime Minister—and the decision are about the primacy of EU law. Behind this carefully orchestrated debate, however, is the Polish government’s bid to continue breaching its EU obligations with impunity, in particular in relation to the independence of the judiciary.
Since it came to power, Poland’s Law and Justice party (PiS) has put through wide-ranging reforms that have compromised the independence of Polish judges. These reforms have included changes to the way Constitutional Court judges are appointed, leading to the capture of this Court; changes to the way the judiciary is governed and the age at which ordinary and Supreme Court judges retire; and the introduction of disciplinary measures that can be adopted against judges for the content of their rulings, or for submitting preliminary rulings to the Court of Justice. The reforms have been the object of four enforcement proceedings against Poland. In three of them so far, the Court of Justice has ruled that the reforms breach the EU Treaties;1 the fourth one is still pending at the time of writing.2 The Court of Justice has granted interim measures ordering Poland to stop disciplinary proceedings.3 Poland has ignored the Court of Justice’s decisions; the latter has now imposed a financial penalty of a million euros a day for as long as Poland does not comply with the interim measures.4 This is, ultimately, what the Polish government is concerned about: it is not a debate on matters of principle and the appropriate relationship between EU and national law, but about providing a thin veneer of legality to the government’s policy of ignoring the Court of Justice and its EU rule of law obligations. To that end, one of the provisions of the EU Treaties that the Polish Constitutional Court found to be incompatible with the Polish Constitution and therefore not applicable in the country was art.19 TEU, which requires Member States to ensure judicial independence, and which seems to have been wrongly interpreted by the Polish Court to envisage an overreaching EU power over the organisation of the Polish judiciary (the full reasoning of the Polish Constitutional Court has not been published yet). In the end, it is all just a cover for the Polish government to continue breaking the law. It should also be noted that EU law obligations are not the only ones that the Polish government has been breaching; the same applies to the ECHR (see the recent ECtHR decision in Xero Flor v Poland)5 and, arguably, to the Polish constitution itself. (...)
