'Playing with fire!' EU braces for new clash with Poland ahead of key court ruling

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A top Polish court postponed a ruling on whether the constitution takes precedence over EU treaties on Tuesday, in a case that could bring Warsaw’s conflict with Brussels over the rule of law to a head. The Constitutional Tribunal adjourned proceedings and will resume on Thursday.

Warsaw aims to hit back at what it says is unjustified interference in its internal affairs by the European Commission, but critics say that questioning the primacy of EU law undermines the functioning of the bloc and jeopardises Poland’s continued membership.

“The constitution occupies the highest position in the hierarchy of legal acts,” Krzysztof Szczucki of the Government Legislation Centre told the court.

“It was not possible to delegate to an authority external to the state the competence to issue decisions that undermine the constitution.”

Poland is embroiled in a long-running dispute with the EU executive over judicial reforms which critics say undermine the independence of the judiciary, but which the ruling nationalist Law and Justice (PiS) party says are needed to make courts function more effectively and remove a residue of communist influence.

PiS says the EU is interfering in Poland’s right to make its own laws by challenging the reforms, and in March Prime Minister Mateusz Morawiecki asked the Constitutional Tribunal to rule on whether Poland’s constitution should take precedence.

The European Commission has asked Poland not to question the primacy of EU law, expressing concern that it is contesting the bloc’s fundamental principles.

Human Rights Ombudsman Adam Bodnar, a vocal government critic, warned the court that choosing not to follow EU law could have serious consequences.

He said: “If the Constitutional Tribunal follows this path it will be playing with fire… fire that sooner or later will lead to Poland’s removal from the EU.”

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As part of proceedings initiated by Brussels against Poland, the EU Court of Justice told Warsaw last year to suspend a panel created to discipline judges.

The panel – the Supreme Court’s disciplinary chamber – asked the Constitutional Tribunal whether such a suspension was constitutional. The tribunal will rule on this on Wednesday.

Government critics say the Constitutional Tribunal itself has become politicised as a result of PiS’s reforms, an accusation the government denies.

The tribunal’s head, Julia Przylebska, was described by PiS leader Jaroslaw Kaczynski as a “close friend”.

The European Court of Human Rights ruled in May that a Polish company had been denied its right to a proper hearing in the Constitutional Tribunal due to the illegal appointment of a judge.

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The upcoming row with Poland will be alongside the Commission’s ongoing battle with Viktor Orban’s Hungary.

Both countries have long argued Brussels is attempting to punish them for having elected right-of-centre governments.

Last month, European Parliament vice-President Katarina Barley scolded the Commission over its inaction against the two countries.

Hitting out at Ursula von der Leyen’s reluctance to act firmly against the deteriorating state of Poland and Hungary’s judicial systems, Ms Barley said time was pressing to save the EU.

She warned: “We observe that, in general, the Commission does not act quickly enough and not consistently enough when it comes to violations of the rule of law.

“The most obvious example: the actions of the so-called disciplinary chambers in Poland.

“They can punish judges and public prosecutors or even dismiss them. The European Court of Justice already ruled in April 2019 that these chambers are not allowed to ‘discipline’. But despite strong pressure from Parliament, the Commission initially did nothing for a long time.

“And when they did react recently, it consisted of a new letter to the Polish government requesting a statement.

“There was not even a threat of financial sanctions, which would have been possible without further ado.”



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