(CN) — The European Court of Justice ruled Thursday that Poland's ultra-nationalist right-wing government set up an illegal judicial disciplinary chamber to remove judges it doesn't like, a finding that adds more fuel to a worsening crisis and showdown between the leaders in Warsaw and the European Union.
Poland's ruling Law and Justice party is refusing to abide by EU court decisions and, despite increasing pressure from Brussels to back down, it is pushing ahead with a series of reforms that critics say are turning Poland into an anti-democratic authoritarian state.
Thursday's ruling by the European Court of Justice is the latest in a series of rulings from European courts striking down different parts of an overhaul of the judiciary instigated by the Law and Justice party after it seized control in 2015.
Poland and Hungary have become major headaches for EU leaders because right-wing nationalist governments in both countries are challenging EU mandates and laws. Critics accuse leaders in both countries of seeking to create one-party, Soviet-style states.
The newest action by the EU came last week when the European Commission filed a legal challenge to throw out laws in Hungary and Poland that are seen as discriminatory attacks on LGBTQ rights.
The commission is challenging Polish authorities in various cities and regions that declared themselves to be so-called “LGBT-ideology free zones.”
In Hungary, the commission is suing to overturn a recently adopted law that prohibits or limits access for people under the age of 18 to content “that promotes or portrays the so-called ‘divergence from self-identity corresponding to sex at birth, sex change or homosexuality.'” Also, the commission wants to throw out a Hungarian law that requires children's books containing LGBTIQ content to include a disclaimer.
Previously, the commission and European Parliament filed separate legal challenges, called infringement cases, to overturn judicial reforms in both countries.
Thursday's ruling was related to the commission's infringement case against Poland over its judicial reforms.
The high court in Luxembourg said a new disciplinary regime for Supreme Court judges was illegal.
Poland's Law and Justice party sparked a fierce fight after it tried to remove Supreme Court judges it doesn't like by lowering the age of retirement and setting up a new disciplinary chamber overseen by government-appointed judges.
The Court of Justice said this new disciplinary chamber “does not provide all the guarantees of impartiality and independence” and is too much under the influence of the Polish government.
The chamber has the power to punish judges for the rulings they make, the court noted with concern.
“Accordingly, it could be used in order to exert political control over judicial decisions or to exert pressure on judges with a view to influencing their decisions, and could undermine the independence of the courts concerned,” the court said in a news release.
The high court blasted Poland for undertaking disciplinary proceedings against judges who have turned to the EU courts for preliminary rulings, a basic aspect of EU law. National judges and courts routinely ask EU courts to interpret laws and rules issued by Brussels.
In theory, Poland must comply with the high court's ruling and scrap or fix the new disciplinary regime, but in practice Poland will resist that.
On Wednesday, the dispute between Brussels and Warsaw intensified after Poland's Constitutional Tribunal issued a ruling that declared interim judgments from EU's high court violate the Polish Constitution. The Constitutional Tribunal said the Luxembourg court's demand to suspend the new disciplinary chamber in the Supreme Court was unlawful.
The Constitutional Tribunal is seen as an ally to the Law and Justice party, whereas many judges on the Polish Supreme Court are fighting the reforms.
The Constitutional Tribunal is expected to issue a ruling on whether the Polish constitution has supremacy over European law.
Poland lashed out at the EU court’s ruling with Justice Minister Zbigniew Ziobro calling it “colonial thinking” and accusing the EU of creating a system of segregation where some countries are viewed as better than others.
“Behind it is colonial thinking, allowing for extra-legal segregation of countries and differentiation of EU citizens,” Ziobro said at a news conference, according to a government news release.
The justice minister said the EU court's ruling was wrong. He said the Polish system is “almost an exact copy of the appointment of judges in Spain.”
“It does not pose any threats related to the politicization of the appointment of judges,” he said. “This is also the case in Germany, where the system of appointing judges is politicized, and politicized, and no criticism is heard about it.”
Poland claims that the EU's treaties allow individual states to decide how to organize their judiciaries.
Deputy Justice Minister Sebastian Kaleta said the Luxembourg court was violating the EU's “principle of equal treatment of member states.”
On Thursday, the commission said it was “deeply concerned” by the Constitutional Tribunal's ruling.
“This decision reaffirms our concerns about the state of the rule of law in Poland,” the commission said in a statement. The commission said EU law has primacy over national law and that all decisions made by EU courts, including interim ones, must be regarded as binding on national courts.
It will not be easy to settle this dispute.
Under EU law, member states cannot be thrown out of the union but they can be punished, most severely by having their voting rights on EU affairs taken away from them.
But for that to happen, every other EU state must agree to punish an offending government and this provision for unanimity has landed EU leaders in a quandary. That's because Poland and Hungary have each said they will vote down infringement cases brought against the other government.
The EU is looking at other ways to put pressure on Hungary and Poland, most recently by proposing to suspend EU funds going to them. This tactic could be challenged in the courts, however, and EU leaders have failed so far to find common ground on how to handle Hungary and Poland. Also, other Eastern and Central European nations, such as Slovakia, the Czech Republic and Romania, tend to side with Poland and Hungary on many issues, and they, like many in the EU, are wary of Brussels' influence in their domestic affairs.
Courthouse News reporter Cain Burdeau is based in the European Union.
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