The European Commission has been claiming for some years that there is a clear risk of a serious breach of the rule of law in Poland but it has not been able to halt the enactment of new laws that threaten basic legal principles and the independence of the judiciary.
The Commission recently denounced a media law in Poland that aims to stop foreign powers from controlling Polish broadcasters as an attack on press freedom. Non-European companies will be prohibited from owning more than 49% of a Polish media outlet.
“The Polish draft law on broadcasting sends a negative signal. We need an EU-wide media freedom law to defend media freedom and support the rule of law,” EU executive vice-president Vera Jourova said in a comment on her Twitter account. The US also criticised the media law, with the only Polish broadcaster actually owned by a non-European country belonging to the US group Discovery.
In a more serious issue concerning the independence of the judiciary, Poland replied on Monday (16 August) to the Commission about a ruling of the European Court of Justice. According to the ruling, the new Polish Disciplinary Chamber is incompatible with EU law since it might impose sanctions against judges.
The Commission confirmed that it had received the response on the very deadline. A spokesperson said that the Commission is considering the letter before deciding on any measures. “We do not comment on ongoing proceedings,” he added.
According to a press release published by the Government Information Centre, the Constitutional Tribunal in Poland has been reviewing the constitutionality of EU law since the country’s accession to the EU.
Judging by the press release, the Disciplinary Chamber will not refer new cases concerning judges to the Supreme Court for examination, nor will the government suspend the operation of the court chamber and the effects of its decisions. Whether the chamber will only deal with the conduct of judges and trials or also interfere in the rulings is not clear.
Furthermore, the EU and Poland are butting heads on the issue of the primacy of EU law. For Member States, EU law takes precedence over national law – something Poland now challenges.
Another controversial legal decision on the restitution of property was signed into law a week ago (14 August) by President Andrzej Duda after it had been adopted by the two chambers of the Polish parliament, the Sejm and the Senate, against protests by both Israel and the US.
The amendment stipulates that it will not be able to file any new claims for the restitution of property stolen by Nazi-Germany during its occupation of Poland during WWII or nationalised by the Communist regime after the war. Outstanding claims that have not reached a final decision in the last 30 years will be halted or dismissed.
According to a statement by President Duda, he signed the law after a consultation to protect Poland’s citizens against injustice. He referred to a ruling in 2015 in which “the Constitutional Tribunal ruled that seeking the annulment of administrative decisions that constitute the basis for the acquisition of property after a lapse of many years is inconsistent with the Constitution.”
“In my opinion, this is the end of a state of uncertainty, during which apartments and real estate acquired in good faith could be seized by means of an ordinary administrative decision after their owner from over 70 years ago was suddenly found,” he wrote. He denied that the new law was aimed at any specific group – notably Jewish Holocaust survivors.
However, survivors who have tried to reclaim property in Poland say that the new law does not change anything in practice given the legal difficulties in the administrative process. Local municipalities have also refused to implement the administrative decisions in favour of the survivors or their descendants.
The reform of administrative procedures was a key element in the Public Administration Reform (PAR) process when Poland joined the EU. It is a prerequisite for the rule of law since it requires all administrative decisions be based on and conform to the law, as well as being proportional to the intended purpose and offering legal remedies such as the right to appeal to a court.
The amendment seems technical but touches on a sensitive issue in relations between Poland and the Jewish people. Most of the 3 million Jews in Poland before the war were murdered by the Nazis and their collaborators. The decision has also led to a diplomatic row between Poland and Israel.
In 2018, the two countries were entangled in a dispute concerning a law that outlawed certain statements on Poland’s role in the Holocaust. After signing the law, President Duda sent it to the Constitutional Court for judicial review, leaving open the possibility of a change. Later, the two countries found common ground in a statement in addressing their tragic history during World War II.
In this instance the Commission chose not react formally. A Commission spokesperson told The Brussels Times that it is aware of the issue and is following it. “The Holocaust is a defining moment in European history and it is important to honour the victims and their descendants,” he said.
“That said, restoring justice and dealing with crimes perpetrated by totalitarian regimes falls under the competency of the Member States.”
Somewhat appropriately, the Europe-wide day of remembrance for the victims of all totalitarian and authoritarian regimes occurs tomorrow (23 August), the date in 1939 when the infamous Molotov-Ribbentrop Pact was signed between Germany and the Soviet Union. The pact triggered the outbreak of WWII and the invasion of Poland.
“On this day, we pay tribute to those who fell victim to totalitarian regimes in Europe and those who fought against such regimes. We recognise the suffering of all the victims and their families, as well as the lasting effect that this traumatic experience left on the following generations of Europeans,” Vice-President for Values and Transparency, Vera Jourová, and Commissioner for Justice, Didier Reynders, said in a joint statement.
“Freedom from totalitarianism and authoritarianism is not a given,” they added. “Together with the rule of law and democracy, this freedom is at the core of the European Treaties we have all signed. We must continue to stand, united, for these fundamental European values.”
The statement could have been addressed to Poland, the double victim of Nazi and Soviet totalitarianism, which today appears to be backsliding on its rule-of-law commitments.