Tag: Poland

Law and Order

  • August 2020
  • Ioanna Karagianni

Law and Order

The case of Poland and the EU’s need to show leadership

Source: Flickr

Particular concern has been caused in the wake of Poland’s decision to withdraw from the Council of Europe’s (CoE) Istanbul Convention, the first binding instrument in the world on combating violence against women, which the country signed in 2012 and ratified in 2015.


The Polish Justice minister, Zbigniew Ziobro, said that he would start the procedures to withdraw from the Convention. He  claimed the text  is “harmful” because it requires that schools teach children about gender from a “zoological point of view,” and continued that “this ideological element is linked to the imperative to change education in schools and outside of school programs, in terms of learning, attitudes, convictions of the young Polish generation of students to make, in our opinion, the false assumption that biological sex is archaic, and in fact everything comes down to the socio-cultural gender.”


Ziobro also expressed the Polish government’s dissatisfaction with the articles of the Convention which deal with  family relationships in the LGBT context, noting that it is “a view propagated by activists from left-wing or homosexual circles who want to translate their beliefs into binding law.” These statements have caused rage in Poland, with people protesting in the streets, and with the Council of Europe (CoE) and the European Union (EU) reacting too – but, for the moment, only with words.


CoE Secretary General Marija Pejčinović Burić  said Poland’s intention was alarming and reiterated that the sole objective of this instrument is to combat violence against women and domestic violence She encouraged a dialogue with Poland in case they  misunderstand  the Convention’s scope. She also noted that leaving the Convention “would be highly regrettable and a major step backwards in the protection of women against violence in Europe”.


European Commission (EC) First Vice President Frans Timmerman reacted saying “Let it sink in: one out of every three women is victim of domestic violence. Thousands die, many more are marked for life. If combating that atrocity is an ‘ideology’, sign me up!” European Commissioner for Equality Helena Dalli also said that such decisions would be deeply regrettable and urged the EU Member States to protect women.


The European Parliament (EP) has already expressed multiple times dissatisfaction and concern with Poland’s wrongdoings in the fields of the rule of law, human rights and democracy.  A Polish Member of the European Parliament (MEP) Sylwia Spurek (S&D) described that over 60 percent of Polish women are against withdrawing from the Convention. She demanded to know on whose behalf the government actied  when they denounced the Convention. Irish MEP Frances Fitzgerald (EPP) stressed that the sole role of the Convention is to fight violence against women and said that ratifying it was “essential”. Belgian MEP Guy Verhofstadt (Renew Europe) called Poland’s decision “scandalous”. German MEP Terry Reintke (Greens) expressed solidarity with all those who fight back regression, and Spanish MEP Eugenia Rodríguez Palop (GUE/NGL) said that Poland’s actions do not come as a surprise, as it is known that  many women   become victims of domestic violence in that country.


The EC in its Gender Equality Strategy 2020-2025 has reiterated its intention to do all it can ‘to prevent and combat gender-based violence, support and protect victims of such crimes, and hold perpetrators accountable for their abusive behaviour’. Furthermore, the new EC has been aiming to create an additional comprehensive Rule of Law Mechanism, and has as one of its priorities to have close dialogues with European Member States on the basis of law. The situation with Poland gives the opportunity to the EC to actually put this in practice, resolve the issue and strongly encourage the country to remain a member of the Convention.


In case the European Union’s (EU) accession to the Istanbul Convention continues remaining blocked in the Council, the EC itself needs to keep intact its intentions to propose measures against violence to achieve the same objectives as the CoE Convention, and it needs to re-examine the issue of conditionality and compliance to the rule of law when it comes to EU funding. It is also urgent that the MEPs have a greater role and say in the decisions of the EC itself as the institution reflecting the national parliaments’ theses, and as this would anyway coincide with the plans of the EC to ensure the EP’s greater role in the rule of law mechanism.


It is urgent to deal with this now, because Poland’s situation is not unique: similar attitudes can be found in Hungary as well as in Slovakia, where the parliament has rejected the Convention claiming that it is not aligned with the country’s constitutional definition of marriage as a heterosexual union.


As the political guidelines of Ursula von de Leyen read, ‘threats to the rule of law challenge the legal, political and economic basis of how our Union works. [..] We have a common interest in resolving problems. Strengthening the rule of law is a shared responsibility for all EU institutions and all Member States’. The situation with Poland constitutes an opportunity for the EC to show real leadership and to confirm it sticks to its promises, does not make compromises, and always defends the EU’s core values.

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Interim independence

  • October 2018
  • Otto Ilveskero

Interim independence

Poland found to be in breach of EU law


Source: Krakow Post

As the judges of Poland’s Supreme Court returned to their seats this Monday, the clash between the Polish government and the EU entered a new chapter.


On Friday 19 October, the European Court of Justice (ECJ) ordered Poland to ‘immediately suspend’ the changes made to the country’s Supreme Court under the controversial law that lowered the retirement age of Supreme Court judges from 70 to 65, requiring over a third of the current judges to step down. The landmark decision also retroactively froze all actions taken by the government on Poland’s judiciary since 3 April this year when the new law entered into force, including freezing the appointment of new judges. Although only an interim measure to relieve an urgent situation, the ECJ is set to issue a final verdict at a later date.


Reacting to the verdict, the leader of the Law and Justice party (Prawo i Sprawiedliwość, PiS) and the de facto leader of Poland Jarosław Kaczyński said that the country would “comply with EU law”. Similarly, President Andrzej Duda’s spokesperson Błażej Spychalski admitted that the ECJ order might force a “decision to update the law on the Supreme Court”. Nevertheless, the Polish government is expected to challenge the interim measure and claim that the ECJ’s order is ultra vires, or beyond its powers, after a review to the order has been conducted. To this end, Zbigniew Ziobro, Poland’s Minister of Justice and Prosecutor-General, brought a case before the country’s Constitutional Court in early October, challenging the ECJ’s mandate and competence, as well as the constitutionality of Article 267 TFEU in ‘matters pertaining the design, shape, and organisation of the judiciary’ of a member state. A ruling to the government’s favour would definitely encourage PiS to escalate the confrontation. The ball is now quite literally in Poland’s court.


Engaging in a bitter battle with the EU since assuming office in October 2015, PiS has actively tested the boundaries of the rule of law and Europe’s tolerance for illiberalism with divisive judicial reforms. Immediately after forming a majority government, the party launched its “Good Change” illiberal policy platform, which has included, inter alia, significantly restricting the competencies of Poland’s Constitutional Court and enabling a government takeover of the public media. In January 2018, a new law reforming the Polish National Council for the Judiciary (KRS) came into effect, allowing the parliament to choose the body’s members and terminate its term prematurely. This significantly reduced the independence of the KRS, which is responsible for overseeing judicial impartiality and deciding judicial appointments, and thus restricted the independence of Polish judiciary as a whole. In fact, the European Network of Councils of the Judiciary (ENCJ), which acts as an advisory body to EU institutions and represents judiciaries across the EU, suspended its Polish member body in September 2018, stating that the changes made to the KRS infringed ‘very seriously the independence of the judiciary and the separation of powers’.


PiS’s radical programme challenging the rule of law follows the logic (using the word lightly) of “legal impossibilism”, a term coined by Mr Kaczyński, which posits that a nation’s free will should not be impeded by checks and balances on its democratically elected government. In other words, Poland’s most influential politician has put forward an idea that the independent constitutional power of courts should conform to the “will of the people” as represented by politicians.


Furthermore, Poland had consistently rejected the European Commission’s recommendations to avoid a serious breach of the rule of law ever since a dialogue was launched under the Rule of Law Framework in January 2016. The first concessions were made only after the Commission recommended sanctions under Article 7 TEU and referred Poland to the ECJ for the first time in December 2017. Yet, these changes were merely cosmetic, and ultimately – as has been the case with Hungary – the EU’s dialogue and recommendations had very little impact on the drifting member state’s actions. Following the Polish Supreme Court’s request this August that the ECJ rule on whether the controversial retirement rules are in violation of the EU law, however, the Commission finally referred Poland to the ECJ for undermining the principle of judicial independence in September 2018.


Which brings us to the key player of the current stage of this showdown. This year, the ECJ has woken up to the existential challenge posed by rule of law backsliding within the Union. In February, the ECJ rendered itself competent to evaluate the judicial independence of national courts through its interpretation of Article 19 TEU in a landmark case on austerity measures and the salaries of Portuguese judges. On the grounds of Articles 2, 4, and 19 TEU, the court also established in this case an obligation for the member states to guarantee and protect full judicial independence in the EU. In addition, in July, the ECJ allowed in its verdict the Irish High Court to refuse to send an alleged drug dealer to Poland, citing “failures” in the country’s rule of law and the possibility that the defendant would not receive a fair trial due to a “lack of independence of the jurisdictions” as reasons for the verdict. Thus, the Commission’s legal challenge was only a matter time, especially since it could not rely on unanimous support of the 27 to put pressure on PiS.


But the situation is obviously far from over. A long-term opponent of a two-speed Europe, Poland is now risking self-imposed marginalisation over its reckless illiberalism and contempt over the rule of law enshrined in EU values. As a net beneficiary of the EU budget, Poland is vulnerable for targeted penalty payments, and with over 70% of the population seeing the EU in a positive light, PiS will find it difficult to justify lost benefits to the voting public. For the EU, the Polish government’s actions show just how difficult the enforcement of commons values is within the EU and how fragile the authority of its institutions can be. With yet another challenge from Poland on EU competencies on the horizon, the stakes remain high as the next chapter in this struggle of values unfolds.

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Poland and pragmatism

  • June 2018
  • Admin

Poland and pragmatism

The rule of law procedure shows what the EU really is


Source of the photo: newsweek.pl

The academic discipline of International Relations (IR) has always seen the competition of two schools of thought: realism and liberalism-idealism. The theories have survived three waves of clashes so far, but the essence of how their followers see that world remains intact. While realists see humankind as originally sinful and selfish, they don’t expect that much from international relations either. Everything is driven by self-interest. No permanent ties, only permanent interests. That’s the way it is.


Their brave-hearted challengers believe in the good—seeing IR itself as a normative tool to influence decision-makers to make the world a better place. They are convinced that we should never accept things as they are. Instead, we should fight for the ideal of how it should be.


This eternal battle of pragmatic and normative approaches can be clearly seen in the way the European Union handles Poland’s Article 7 disciplinary process. As revealed this week by internal sources, a kind of turf war is fought in the European Commission over the rule of law procedure. While Commission President Jean-Claude Juncker and his faithful ally (leader?), Secretary-General Martin Selmayr, are pushing the institution and member states to put an end to the procedure, Vice-President and responsible Commissioner, Frans Timmermans, insist carrying on with the legal agenda that might result in the suspension of Poland’s voting rights in the Council. Juncker has already started to pressure European capitals to find an agreement that will close the dossier.


Reality undoubtedly kicks in, given that the devastating scenario of the so-called nuclear option would never ever happen. Poland’s BFF, Hungary, would always cast a veto, blocking the final decision that requires unanimity. Having this in mind—is it cruel to decide to carry on the procedure just for the pure joy of its normative meaning? Or should the EU instead accept the political reality (another keyword for realist theories) and start saving its face to prevent the escalation of tensions among Member States?


The rule of law issue has been on the EU’s agenda for more than seven years. It has been concluded millions of times that the EU is not prepared to handle if an already accepted Member-State breached the initial accession criteria. Despite the efforts of a few committed decision-makers to set up some kind of firewall against the backsliding in rule of law, this won’t ever happen in the current constitutional setup because the criticized states also have their say.


I am becoming more and more convinced that this whole disciplinary procedure against Poland has nothing to do with the country itself. It illustrates more about the way EU officials and leaders of the Member States perceive the future of the EU, as well as their role in it.


Maybe we should get used to the endlessly realistic thought that the EU has its limits of power. It was originally founded to enhance economic growth after the Second World War. It is only reasonable and successful to expand integration to more policy areas when they ensure the peaceful functioning of the common market. The judiciary independence, the free media, and civil society are only abstract and normative concepts, after all. As long as European firms and intra-EU trade works perfectly, no one should really care about it in Brussels or major European capitals. Maybe it’s time to familiarize ourselves with the idea of another victory for the realist school of thought.

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