September 19, 2021

The Polish government wants EU money

Observers of the Polish government’s strategy to legislation have change into used to lots of issues. And nonetheless one may very well be stunned by the escalation that transpired final week.

Simply when the EU had determined final yr {that a} menace to the rule of legislation in a member state ought to outcome within the suspension of EU funding to that member state, the government and its highest court docket declared warfare on the EU’s authorized order.

  • Unsurprisingly, the government and the Polish courts have referred to the unlucky and badly-argued determination of the German Constitutional Court docket final yr

It’s as if the Polish government is begging the EU to cease transferring funds.

What occurred? Proper after the ruling get together gained the primary election in 2015, it staffed the Constitutional Tribunal with judges that help its line. The European Court docket of Human Rights in Strasbourg already dominated that these new judges weren’t lawfully appointed, however the government ignores the judgment.

Ever since that assault on the nation’s highest court docket, Poland’s legal professionals have been preventing a battle to protect the independence of the opposite courts.

It’s not going effectively. The government has been attacking judges and different courts by means of a newly created Disciplinary Chamber on the Supreme Court docket that may sanction judges not just for their behaviour but in addition for the judgments they cross.

Final yr, the European Court docket of Justice in Luxembourg, the EU’s high court docket, dominated that the Polish Disciplinary Chamber ought to droop its actions till it may resolve whether or not the Chamber is a lawful judicial physique.

Final week the Disciplinary Court docket requested the unlawfully appointed judges on the Polish Constitutional Tribunal whether or not it has to respect the choice of the EU Court docket and the Tribunal stated: ‘no’.

Ruling pending

The Constitutional Tribunal additionally mentioned one other case final week, introduced by the government, through which the government argues that EU legislation mustn’t take priority over nationwide legal guidelines as is established authorized doctrine within the EU for a lot of a long time. The tribunal’s determination is predicted in August.

The court docket’s and the government’s message from final week is that the Polish authorities can have no matter EU judgments they don’t like annulled by their very own court docket.

Moreover, by means of disciplinary motion they’ll additionally actively deter Polish judges from turning to the EU’s court docket. Briefly, the Polish government and its high court docket are heading in the right direction to decouple authorized reasoning and authorized follow from EU legislation.

Unsurprisingly, the government and the Polish courts have referred to the unlucky and badly-argued determination of the German Constitutional Court docket final yr, which thought-about a call by the European Court docket of Justice to be past its authorized remit.

But, the priority of Germany’s highest court docket was that the EU Court docket didn’t sufficiently examine the motion of different EU branches of energy.

The Polish state of affairs is the precise reverse: the government is taking management of the courts.

Moreover, no choose in Germany could be intimidated away from referring to the European Court docket of Justice by a menace of disciplinary motion. Neither can they be prosecuted over the content material of their rulings the place they discover the government breaking the legislation whereas distributing money from EU funds.

Pink flag for enterprise

For companies final week’s determination raises a purple flag: if they’ll not depend on Polish courts and directors to impartially implement European legislation, their investments are a lot much less protected.

The European Fee and the opposite European member states have constantly been too late, and accomplished too little, in addressing the authoritarian measures taken in Hungary and Poland.

The impartial judges in these international locations had been largely left alone to guard the legislation and so they hold shedding.

The state of affairs requires an software of the rule of legislation mechanism, which is supposed to guard EU funds from dangers of breaches of the rule of legislation within the member states.

Not too long ago, famend authorized students made a convincing case that the mechanism ought to be used in opposition to Hungary. There’s a clear case for making use of it to Poland too.

The two instances will not be equivalent.

The Hungarian government has a documented dismal report of economic irregularities of EU funds. That’s not the case in Poland. The emphasis of the case in opposition to Poland ought to lie on the outright destruction of judicial independence mixed with a refusal to simply accept the supremacy of EU legislation.

The related EU regulation signifies that the “endangering of judicial independence” is a breach of the rule of legislation. In Poland, the state of affairs is effectively past endangering. Judicial independence has been systematically compromised as present in choices of European courts that hold being ignored.

For legal professionals final week’s determination in addition to the government’s arguments within the further case had been astounding, provided that they appeared designed to fulfil the factors of the rule of legislation regulation.

The regulation centres on the concept that member sate establishments implement EU legislation in good religion and have adequate checks and balances, particularly impartial courts, to examine any essential instances.

The Polish judgment says: we don’t respect that European legislation has priority and we don’t care what European courts say about our checks and balances. Authorities with that strategy will not be functioning correctly as companions in spending EU funds.

Think about a financial institution’s enterprise accomplice who clearly introduced that he doesn’t respect the contractual preparations. Any financial institution clerk transferring extra funds to that accomplice can be accused of gross negligence. The case in Poland isn’t any totally different.

Cease pretending

The European Fee has given the Polish authorities a deadline to adjust to the European court docket order, however the issue is effectively past one case.

Because the European Court docket of Justice famous in a current determination, the measures quantity to “a structural breakdown which no longer makes it possible either to preserve the appearance of independence and impartiality of justice”.

The fee ought to act now and apply the rule of legislation regulation by notifying the Polish government of its systematic issues – step one within the course of. It must cease pretending that the issue is contained.

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