The standoff between Poland and the European Union (EU) over the bringing into line of judges by the ruling National-Conservative Party has suddenly intensified. In Brussels, the Commission, guardian of the European treaties, said, Thursday, July 15, “Deeply concerned” by the decision of the Polish Constitutional Court, announced the day before, to challenge the interim orders issued by the Court of Justice of the European Union (CJEU) in cases concerning the independence of the judiciary.

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Polish judges ruled against fundamental law an order issued by the Court of Justice of the EU issued on Wednesday demanding the suspension of the activities of the disciplinary chamber of the Supreme Court, the keystone of the judicial review regime established by the national-conservative government, on the grounds that it does not present sufficient guarantees of independence and impartiality.

The decision of the Polish Constitutional Court was, unsurprisingly, hailed as a victory by the ruling majority. Zbigniew Ziobro, Minister of Justice and Attorney General – and as such one of the main architects of the contested judicial reforms -, considered that it will protect “The national constitutional order against the legal aggression of the European Union”.

A fallacious argument according to Laurent Pech, professor of European law at Middlesex University, in London: basically, “There is no problem of compatibility between the Polish Constitution and the European treaties”, the two texts containing the same standards in matters of judicial independence. According to the academic, “The Polish Constitutional Court [réputé proche de l’exécutif] violates European treaties, as well as the national Constitution, to establish an authoritarian regime where judges are no longer independent, but subject to political control of the content of their decisions ”.

“Risk of contagion” to other member states

It is indeed the whole European edifice, “Based inter alia on the principles of mutual recognition and mutual trust”, which just faltered, says Pech. In this context, the EU “Cannot afford not to act”, warns Dariusz Mazur, magistrate member of the Polish association of judges Themis. He fears that the “Black hole in the European legal area”, provoked by the Polish constitutional judges, is spreading to other member states plagued by illiberal or even authoritarian abuses.

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