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WARSAW — Poland’s legal war with the EU began when the ruling party seized control of the country’s top constitutional court — but that body is now so dysfunctional it may derail Warsaw’s hopes of getting billions in EU recovery funds.
The Constitutional Tribunal is supposed to rule on whether laws passed by parliament jibe with the Polish constitution. President Andrzej Duda last month handed it the hot potato of adjudicating on a new law that aims to tone down the rule of law dispute with the EU by backtracking on some legal reforms.
The law is crucial in getting the European Commission to agree to release €36 billion in loans and grants from the bloc’s pandemic recovery fund — something the ruling Law and Justice (PiS) party desperately wants ahead of this fall’s parliamentary election.
But PiS’s past tinkering with the court has thrown it into such disarray that it’s not clear if the tribunal will even be able to meet to rule on the case.
There’s a fight on over the status of Julia Przylębska, the tribunal’s president and a personal friend of PiS boss and Poland’s de facto ruler Jarosław Kaczynski.
At least six of the court’s 15 judges say that her six-year term as president expired at the end of last year — a stance she rejects, insisting her term ends in December.
“There’s no mutiny,” Jakub Stelina, one of the judges who question the legitimacy of Przyłębska, told POLITICO. “There’s no legal question that judge Przyłębska’s term as the tribunal’s president has expired.”
Przyłębska insists all is well. Earlier this week she told Polish radio: “The Constitutional Tribunal will be preparing for a ruling. We will meet soon for the hearing.” However, she wouldn’t be drawn on how soon she’ll move, saying only: “Certainly it will not take years, as the opposition claims.”
But the six judges also wrote to Duda this week, calling for a new president to be selected, implying if that doesn’t happen the tribunal won’t be able to examine the legal reform law, which amends how Poland handles disciplinary cases against judges.
On Wednesday, Przyłębska convened a general assembly of the tribunal, consisting of two-thirds of the court’s judges — and received a majority backing for her continued presidency .
“There’s no mess in the [tribunal],” tweeted Krystyna Pawłowicz, a hard-right justice who is loyal to Przyłębska.
However, that doesn’t end the rebellion, and that means trouble for efforts to decide on the constitutionality of the legal reform bill. To hear the case, Przylębska needs to gather a panel of 11 judges — and if the six rebels dig in their heels, she won’t have the numbers to do that.
To make matters even more complicated for PiS, the six judges are seen as close to Justice Minister Zbigniew Ziobro, the leader of PiS’s smaller Euroskeptic coalition partner that is opposed to any retreat in the spat with Brussels.
Tainted past
The current situation is a consequence of the chaos that overcame the tribunal as Duda and PiS took power in 2015. One of their first steps was for the newly elected president to refuse to swear in three judges named by the outgoing parliament. Instead, the new PiS-controlled legislature chose three new judges, who were sworn in during a late-night ceremony by Duda.
“Three tribunal judges shouldn’t be there at all in the first place,” said Jakub Jaraczewski, a research coordinator for Democracy Reporting International, a Berlin-based NGO, adding: “If any of the three judges in question rule on anything, it’s a denial of the right to a tribunal established by law.”
Kaczyński has made control of the courts a key part of his nationalist government’s political program. His backers argue that’s needed to make the judicial system more efficient and to purge it of people dating back to the communist system that ended in 1989. Skeptics see it as a way of putting judges under political control.
Brussels shares that view.
“The [European] Commission also considers that the Constitutional Tribunal no longer meets the requirements of an independent and impartial tribunal previously established by law,” it said when referring Poland to the Court of Justice of the EU for violating EU law last month, noting “irregularities” in the appointment of the three judges.
Ziobro called the lawsuit a “planned attack on the Polish state.”
After the tribunal came under the control of PiS loyalists, the number of cases it heard dropped dramatically. It is trotted out to tackle politically expedient issues for the ruling party — in 2020 tightening already strict abortion rules, and in 2021 ruling that the Polish constitution has primacy over EU law, which worsened already foul relations with Brussels.
“We don’t have a constitutional court in Poland now that would meet the standards of a democratic country,” said Borys Budka, the head of the parliamentary caucus of Civic Platform, Poland’s biggest opposition party.
“The ruling camp needs a court to get rid of laws it doesn’t like and to undermine EU law,” Budka said.
With a rebellion inside the tribunal and the PiS-led coalition locked in an internal fight over how much it can budge on the rule of law, a verdict on the justice system legislation — and any eventual Commission decision to release the funds — is still far in the future.
