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As EU seeks negotiation, Poland risks undoing the bloc’s legal order – POLITICO

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EU leaders may want to push their break from the rule of law with Poland as far as possible, but the legal implications of the dispute cannot be so easily overlooked.

With a series of contested judicial reforms and a court ruling challenging the EU’s legal basis, the Polish government may have set in motion a process that effectively decouples the country’s legal system from the rest of the bloc. And there are fears that others will follow the Warsaw path.

It could mean the dismantling of the EU’s common legal system – judges refusing to extradite criminal suspects to Poland, challenges to cross-border disputes on everything from divorce to trade deals, Polish judges being disciplined for enforcing the law. EU law. The implications for people and businesses could be huge.

Yet some EU leaders have adopted an increasingly conciliatory tone in recent days towards the country – a large economy with great geopolitical significance to many of its allies. At a European Council summit last week, many leaders called for a dialogue on quick sanction.

This did not temper the Warsaw rhetoric. Polish Prime Minister Mateusz Morawiecki warned in an interview with the Financial Times published on Monday that if the European Commission “were to start World War III” by withholding the money pledged in Warsaw, he would “defend our rights with all the weapons at our disposal” .

The effort to dodge a fight by EU leaders has raised questions about the bloc’s commitment to upholding rule of law standards – and whether a compromise is even possible on the principles. basic legal system of the EU. While Poland has pledged to make some changes to its justice system, it has not pledged on details. And he has yet to back down from the latest dispute – a court ruling that called into question the rule of EU law.

The situation, said Filippo Donati, president of the European Network of Judicial Councils, is a “great danger for the European Union”.

The EU’s single market, its “complete system,” Donati said, is based on the assumption that each country will implement EU law equally. If that falls, he argued, the EU will not be able to function. Either Poland accepts “the principles of European Union law” or it orchestrates an “exit” from the EU, he said.

Polish officials insist these fears are exaggerated, hyperbole meant to intimidate Warsaw into complying with the EU’s wishes. Poland, they say, has no interest in leaving the EU.

“The Union will not collapse because our legal systems are different,” Morawiecki emphatically told the European Parliament last week.

Stirred beef

Poland’s ruling Law and Justice Party (PiS) has been criticized for years for its persistent campaign to reshape the country’s legal system.

Many Polish judges have protested against what they describe as the government systematically undermining their independence. In its 2021 rule of law report, the European Commission expressed concern about the way Poland now disciplines and appoints judges.

Earlier this month, tensions escalated when the Polish Constitutional Court, itself deemed illegitimate by the European institutions, declared parts of the EU’s core treaties to be incompatible with the Polish constitution. Legal experts and Brussels officials said the decision called into question the idea that all member countries should apply EU laws.

The court ruling broke long-simmering tensions between Poland and the EU. MEPs stepped up pressure on the European Commission to impose financial sanctions on Warsaw. Several European leaders have issued calls to action.

But fearing a rift within the bloc as the continent is just beginning its post-pandemic recovery and an ambitious climate agenda, EU leaders last week sought to calm people down on the issue.

“I want to be optimistic,” French President Emmanuel Macron said after the summit, calling on the EU to formulate “real demands” through “dialogue and respect”. For her part, Commission President Ursula von der Leyen said her team would pursue a combination of dialogue, legal responses and concrete actions.

Poland, offline

It is a situation that has destabilized judges, business representatives and experts. They warn that the stalemate could have a wide range of negative consequences for the economy – and even the daily lives of citizens.

Soon, family law could become more complex, they warn, if cross-border divorce proceedings with Poland are called into question. Trade disagreements with Poland and Polish companies could get bogged down in a legal quagmire.

“Think of all the cross-border disputes involving European residents and European companies, why would anyone trust Polish courts now? »Declared Laurent Pech, professor of European law at Middlesex University.

The first consequence will probably be the European arrest warrants, according to Pech.

“Surrenders to Poland will most likely be stopped by national courts,” he said, with judges fearing that Polish courts are too politically compromised.

Already, an Amsterdam court earlier this year rejected the extradition of a Polish drug trafficking suspect, citing rule of law issues and “a real risk” that the accused will not get a trial fair in Poland.

Essentially, European judges can ask themselves if they can work with their Polish peers.

“In practice, what is this decision of [Constitutional Tribunal] did is that he put Poland outside the EU legal system, ”said Filipe Marques, a Portuguese judge who is president of MEDEL, an association representing European judges and prosecutors that promotes standards rule of law.

“How can I continue to trust Polish justice when I have [Constitutional Tribunal] saying: ‘I will not comply with the judgments of the European Court of Justice?’ “, did he declare.

In Poland, some judges oppose the decision. Dorota Zabłudowska, member of the national council of the Association of Polish Judges, called the decision illegitimate.

“We don’t think this is binding on us,” she said, highlighting the “incorrect” composition of the tribunal and noting that the body “cannot prohibit” judges from applying European law.

However, Poland can punish judges after the fact.

Zabłudowska noted that judges could face consequences for the application of EU law, including “disciplinary or criminal charges”.

“When the government doesn’t like what judges do,” she said, “they just send the prosecutor’s office after us. “

As a result, European judges should take a close look at where any Polish judgment comes from, argued Zabłudowska.

“When a foreign court obtains a European arrest warrant, it must first check whether the person who issued the warrant has been properly appointed to a judicial post,” she said.

Morawiecki has repeatedly opposed such assessments. Speaking to Parliament last week, he insisted that the recent court ruling does not devalue EU treaties. But he still maintained that the Polish constitution actually came first.

Polish courts, he said, “never declared that the provisions of the Treaty on Union were totally incompatible with the Polish constitution. On the contrary! Poland fully respects the treaties.

The “chaos” of business

Much of the European economy relies on EU guarantees that if companies bring a dispute to a court in Lisbon, Warsaw or Berlin, judges apply the same European standards.

If companies can no longer assume that Poland will also follow these rules, it risks opening a legal Pandora’s box.

“Once we start by not applying EU law first, we will have a problem – we will have chaos,” said Edith Zeller, an Austrian judge who is president of the Association of European Administrative Judges. “Each state or each judge would then apply what they think is the best. “

Government officials say the scenario could fracture the bloc’s economy.

“It is a concern that people can start to choose what they want,” Irish Minister for European Affairs Thomas Byrne said. “And that’s a real concern, not just for our values, of course, but also for the single market.”

“You can’t make a standard in one country and not apply it in another country,” he added. “The system will not work.

For businesses that rely on the courts to resolve disputes, the Polish Constitutional Court’s ruling is troubling. Not only does this create legal uncertainty, but it has also added to ongoing questions about whether Poland will get its stimulus funds in the event of an EU pandemic. The Commission has suspended approval of € 36 billion in grants and cheap loans for Poland in its rule of law dispute with Warsaw.

“Anything that leads to legal uncertainty is a concern for the business community,” said Christoph Leitl, president of Eurochambres, the Association of European Chambers of Commerce and Industry, “It’s not never seen in relation to third countries, but it is more disturbing to see it now in the single market, especially as companies rebuild their businesses, supply chains and networks in the wake of the pandemic . “

“This decision risks undermining the takeover process of Polish companies, as well as other European companies with trade relations in Poland,” he said.

Beyond Poland

As fears grow about Poland’s participation in the EU legal order, some experts worry about possible contagion if the Warsaw measures are not taken into account.

“This is a very dangerous precedent for the whole European community,” said Zabłudowska of the Association of Polish Judges.

The EU fought with other members like Hungary and Slovenia to adhere to certain EU standards and demands.

“When other countries with authoritarian tendencies see that in Poland the Constitutional Court has said that you cannot apply European law or the judgments of European courts, and that nothing has happened, then they will even in their country, ”she said.

When asked if she was concerned that more countries would follow Poland’s path, the Association of European Administrative Judges said it all hinged on judicial independence.

“Every justice system has certain weaknesses, everyone, and it is not good to close your eyes and say, ‘Yes, everything is fine,'” she said. “We generally ensure that the courts remain independent. “

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