In Poland, the party, which won the majority of parliamentary seats for the first time in 2015, has since been working on making its hold on power permanent. In the meantime, this party, which of all things goes by the name of “Prawo i Sprawiedliwość” (PiS) – in English: “Law and Justice” – has brought the judiciary under its control to a considerable extent. The Polish Constitutional Court is now functioning as it should. In 2005, when it was still a highly respected court throughout Europe, it declared Poland’s accession to the EU to be constitutional. On October 7 this year, at the request of the Prime Minister, it countered current and foreseeable future decisions of the European Court of Justice (ECJ) aimed at restoring the independence and proper functioning of the Polish judiciary with a judgment containing a curious selection of Provisions of the Union treaty law declared unconstitutional.
Even before this judgment, Poland had repeatedly referred to the fact that the Union had “no competence whatsoever in the area of the organization of the judiciary of the Member States”. That is just plain wrong. It is correct that the Union does not have legislative powers for the organization of courts in the Member States. However, the applicable treaties set requirements for the nature of the judiciary in the Member States and they provide instruments for enforcing these treaty requirements. The bodies of the EU that have been appointed to do so are responsible for the application of these instruments.
That can get very expensive
The Treaty on European Union obliges the Member States to adhere to a number of fundamental values, including democracy and the rule of law (Art. 2 TEU), and to create effective legal remedies so that effective legal protection is guaranteed in the areas covered by Union law (Art. 19 para. 2 TEU). The Charter of Fundamental Rights of the European Union gives every person the right to take action against violations of their rights under Union law with an effective remedy before an independent and impartial court (Article 47 (1) and (2) GrCH). All of this applies to the entire scope of EU law, which is now relevant to all branches of law, and therefore implies, inter alia, the obligation of the Member States to guarantee the independence of their courts.
Union law provides for various procedures and responsibilities against breaches of these contractual obligations. It is debatable whether a majority decision to withhold funds from EU programs is one of the permitted measures. But in any case there are undoubtedly permissible reactions that are expressly provided for in the treaties.
Serious violations of the fundamental values of the Union can lead to the suspension of member state rights, including the right to vote of the state concerned (Art. 7 TEU). As is well known, the political procedure leading to this does not work in the case of Poland and Hungary because it requires unanimity of all other members.
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