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Poland - February 2023

Court cases highlight legal regime primacy challenge

On 15 February, the European Commission announced legal action against Poland over the Constitutional Tribunal (TK)’s recent rulings that the Polish Constitution can take precedence over EU law and has questioned the court’s impartiality. In parallel, the Polish government has informed the European Court of Human Rights (ECHR) that it will not comply with the Court’s interim decision requiring three judges to be reinstated to their posts. It is the first time Poland has decided not to respect the ECHR’s interim measures. The three judges brought their case to the ECHR after they had been transferred against their will from the Criminal Division of Warsaw’s Court of Appeals for refusing to sit alongside colleagues nominated by the National Council of the Judiciary (KRS). The KRS had been reconstituted during the Law and Justice (PiS) party’s overhaul of the judiciary and was ruled illegal by the ECHR in November 2021, citing undue “influence by legislative and executive powers”. In December 2022, the ECHR ordered the reversal of the transfer of the judges on an interim basis while it reviews the judges’ case.

Sources: Notes from Poland (1), Notes from Poland (2), ECHR, Politico, Robert Schuman Foundation

Primary categories and factors
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Rule of Law -1 Rule of Law  (-1)
Judicial Independence
Predictable Enforcement