Poland: The EU's Next Big Test

The government’s proposed changes to the supreme court has angered the bloc.

People protest against the supreme court legislation in Wroclaw, Poland, on July 20.
People protest against the supreme court legislation in Wroclaw, Poland, on July 20. (Mieczyslaw Michalak / Agencja Gazeta / Reuters )

Poland’s Senate has approved a controversial measure that would allow the government to replace every member of the nation’s supreme court with people of its choice. The move puts it on a collision course with the European Union that says the bill threatens the independence of the judiciary and the bloc’s values.

The EU threatened Poland with the unprecedented step of sanctioning it with Article 7 of the Treaty on European Union, a move that would suspend Warsaw’s voting rights within the bloc. But the threat by the EU’s first vice president, Frans Timmermans, notwithstanding, any move to use Article 7 must be unanimous—and that’s not likely given that Hungary, Poland’s Visegrad ally, has threatened to veto any such action.

The Senate’s 55-23 vote came in the early hours of Saturday after 16 hours of contentious debate. The vote came two days after the Sejm, Poland’s lower house of parliament, approved the measure. President Andzrej Duda, who normally supports the ruling Law and Justice Party (PiS), must then sign the bill into law. He has 21 days to do so. A spokesman for the president said Duda saw flaws in the measure, but declined to say whether he would sign it or seek the opinion of the country’s constitutional court.

Duda had said he’ll approve the measure only if an additional amendment is passed. Under that amendment, the number of  votes needed to appoint the judges would be raised to a three-fifths parliamentary majority—a move that could make it more difficult for PiS, or any future government, to force judicial changes.  The measure does include that amendment, but its critics say it doesn’t go far enough to ensure judicial independence. The U.S. State Department said it was “concerned” by the measure.

The legislation prompted massive protests, including this week after the Sejm’s vote. It was one of the largest protests in Warsaw since PiS came to power in late 2015. The demonstrations continued into early Friday. Protesters carried both Polish and EU flags, and chanted against the government.

At issue is the composition of Poland’s supreme court. At present, the court’s 83 judges appoint other judges, too, a process that critics say takes too much time and is rife with potential conflicts of interest. The court has the authority to determine the legality of elections and referenda, and to rule on the validity of laws. PiS and its supporters say the court’s judges are elitists and the changes are needed to make the court more accountable. Indeed, an overwhelming majority of Poles have in the past supported a judicial overhaul, citing the slow pace of the system and sometimes controversial rulings, but even political parties that support a judicial overhaul in principle say the government’s effort goes too far. By stacking the court with it allies, they argue, PiS would destroy the independence of Poland’s judiciary and, they say, the move is a naked power grab that’s in line with the government other recent actions. PiS, which was elected in 2015, has tightened its grip on the state media and NGOs. Critics of the measure say the government could use it to force changes to the court’s composition and target individuals, entities, and corporations its views as an opposition. The EU is involved because the separation of powers between the executive and judiciary is enshrined as one of the bloc’s fundamental principles.

Donald Tusk, a former Polish prime minister who is now president of the European Council, wrote to Duda seeking an “urgent meeting.” He called the legislation “a negation of European values and standards … that … put our reputation at risk.”

“Politically, they move us back in time and space—backward and to the East,” Tusk wrote.

Bogusław Kapłon, legal counsel partner at Warsaw’s Domański Zakrzewski Palinka, one of the largest law firms in Poland, told The Wall Street Journal that the measure is “a clear subordination of the courts by authority.”

“The supreme court will become a nice place for talking about nothing, and that’s enough for the ruling party,” Kapłon said.

Businesses groups have asked Duda to veto the measure.

Still, the PiS has more than enough support to carry out its actions. It has a small majority in the Sjem, a much larger majority in the Senate, and an approval rating of between 35 and 40 percent (as opposed to 22 to 25 percent for its rivals). The reason for its popularity, Reuters notes, is because of its spending on social programs, coupled with record low unemployment and strong economic growth.

“Its brand of patriotic rhetoric infused with Catholic piety resonates strongly with many Poles who feel frustrated by a gap in standards of living with the West, nearly three decades after the collapse of communism,” Reuters says.

For the EU, watching Poland go the way of Hungary has been startling. It may begin infringement procedures against Poland as early as next week—a process that could take years. For the EU, the promise of the era following the collapse of the Berlin Wall was fulfilled when Poland and other Eastern bloc countries joined the EU in 2004. More than a decade later, that initial promise is, in the EU’s view, imperiled.