Poland’s Judicial Reforms: The Struggle between National Sovereignty and EU Obligations

A blog post by Tyler Rutherford, Junior Associate.

The Polish government left behind communist rule in 1989 when it held its first free and fair elections to the Polish Senate on June 4 of that year.[1] Not long after that, the country officially changed its name to the Republic of Poland in order to represent the democratic society it desired to foster.[2] Since leaving behind communist rule, Poland has adopted a new constitution, joined the North Atlantic Treaty Organization (NATO), and joined the European Union (EU).[3] In 2001, the current dominant political parties, the Law and Justice Party (PiS) and Civic Platform (PO), were formed.[4] The PO won the parliamentary elections in 2007 and 2011 which made Donald Tusk, the co-founder of PO, the first prime minister since communist rule to be re-elected.[5] Under the leadership of Donald Tusk, Poland moved closer to the EU and continued to reform its government and policies in order to remove the influences of communism and strengthen its ties to the European community.[6] In 2014, Donald Tusk was elected as the President of the European Council, bringing Poland ever more into the European fold.[7] The 2015 elections brought sweeping changes to the political dynamic in Poland. The PiS came to power promising a wide variety of reforms, including judicial reforms.[8]

The judicial reforms put forward by the PiS would have a wide impact on the Polish judiciary. It would allow for judges to be sanctioned based on the opinions that they issued.[9] The Commission believes this would allow political influence to dominate court decisions and erode the fundamental concept of judicial independence.[10] Moreover, the reforms would restructure the Polish judicial system, making it three court levels instead of four, which would allow the PiS to reappoint the loyal judges and dismiss party critics.[11] In addition, the reforms would alter how judges are appointed.

The issue does not seem to be going away anytime soon. Recently, Poland and Hungary blocked the passage of the 2021-2027 EU budget due to the law containing a clause stipulating access to funds on respecting the rule of law.[12] Lines have been drawn within the EU about the rule of law language in the budget law. Poland and Hungary have stated they will not accept the budget with that language whereas the Netherlands and the European Parliament refused to accept it without the language.[13]

[1] Institute of National Remembrance, Brief History of Poland 1939 – 1989, https://ipn.gov.pl/en/brief-history-of-poland/1,Brief-history.html (last visited Nov. 16, 2020).

[2] Institute of National Remembrance, Brief History of Poland 1939 – 1989, https://ipn.gov.pl/en/brief-history-of-poland/1,Brief-history.html (last visited Nov. 16, 2020).

[3] Poland profile – Timeline, BBC (May 28, 2018), https://www.bbc.com/news/world-europe-17754512.

[4] Norwegian Centre for Research Data, Poland – Political Parties, https://nsd.no/european_election_database/country/poland/parties.html (last visited Nov. 17, 2020).

[5] The Minda de Gunzburg Center for European Studies at Harvard, Donald Tusk, https://ces.fas.harvard.edu/people/donald-tusk (last visited Nov. 17, 2020).

[6] Claudia-Yvette Matthes, The State of Democracy in Poland after 2007, Problems of Post-Communism, vol. 63 288, 289 (2016). (https://is.muni.cz/el/cus/podzim2017/CZS52/um/State_of_Democracy_in_Poland_after_2007.pdf)

[7] European Commission Press Release EUCO 165/14, Donald Tusk elected European Council President and Federica Mogherini appointed as new EU High Representative (Aug. 30, 2014).

[8] Alistair Walsh, What are Poland’s controversial judicial reforms?, DW (May 11, 2019) https://www.dw.com/en/what-are-polands-controversial-judicial-reforms/a-51121696.

[9] Alistair Walsh, What are Poland’s controversial judicial reforms?, DW (May 11, 2019) https://www.dw.com/en/what-are-polands-controversial-judicial-reforms/a-51121696.

[10] Alistair Walsh, What are Poland’s controversial judicial reforms?, DW (May 11, 2019) https://www.dw.com/en/what-are-polands-controversial-judicial-reforms/a-51121696.

[11] Alistair Walsh, What are Poland’s controversial judicial reforms?, DW (May 11, 2019) https://www.dw.com/en/what-are-polands-controversial-judicial-reforms/a-51121696.

[12] Jan Strupczewski, Hungary, Poland block 2021-2027 EU budget, recovery package, Reuters (Nov. 16, 2020) https://www.reuters.com/article/us-eu-budget-idUSKBN27W1W8.

[13] Jan Strupczewski, EU leaders deadlocked over recovery plan after Hungary, Poland veto, Reuters (Nov. 18, 2020) https://uk.reuters.com/article/uk-eu-budget-idUKKBN27Z03W.

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