It is not the first time that the European Union (EU) is taking legal action against Poland. Just this week, the EU’s case against the controversial 2019 Polish judicial reform received its final ruling. On June 5, the European Court of Justice (ECJ) declared that the law infringes on EU law.
Now a new Polish law, signed into law on May 29, 2023, is accused of violating the rule of law. “[T]he Commission considers that the new law unduly interferes with the democratic process,” wrote the Commission in today’s press release regarding the launch of an infringement proceeding against Poland.
In the press statement, the EU Commission announced today that it sent a letter of formal notice for violating EU law to Warsaw. This formal letter is the first step in EU law infringement proceedings.
What is the ‘Lex Tusk’?
The new Polish law, often referred to as “Lex Tusk” by opponents, creates a parliamentary commission whose purpose is to investigate anyone who it sees as having acted under “Russian influence.” This extra-judicial body has the power to prohibit individuals found guilty from holding public office and does not allow them to appeal.
The Polish government claims that the new law will aid in combating Russian influence in Poland and Europe.
Critics of the legislation have argued that the new law is unconstitutional, as it violates the separation of powers. They further argue that the definition of “Russian influence” is overly vague and broad.
In addition, critics worry that the new law could be used to intimidate political opponents such as Donald Tusk, the namesake of the “Lex Tusk,” former Polish prime minister and EU official.
We call for a full-scale election observation mission by @osce_odihr in 🇵🇱
With recent law changes, a lack of judicial independence & political capture of public media, we fear the autumn elections won't respect democratic standards.
We must make sure they are free and fair! pic.twitter.com/UC56v3EEzq
— S&D Group (@TheProgressives) June 7, 2023
Following criticism, the Polish Prime Minister, Andrzej Duda, has introduced amendments to the law which have not yet been implemented by Polish lawmakers. It is unclear how these changes would affect the infringement proceeding against Poland.
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According to Duda, these amendments will ensure that nonpartisan experts reviewed the law, that no lawmakers were part of the commission established by the new law, and that the findings from the newly established commission wouldn’t prohibit anyone from holding public office. Additionally, he strengthened the right to a court appeal for individuals under investigation.
The EU’s Infringement Proceeding Against Poland
The Commission believes that the “Lex Tusk” violates democratic principles, as stated in Articles 2 and 10 Treaty on the European Union (TEU). In addition, the Commission found that various articles under the EU Charter of Fundamental Rights were infringed upon.
The press release notes that the new law raises concerns about the principles of legality and non-retroactivity of sanctions (Article 49 Charter), principles of legal certainty and res judicata, and the protection of professional secrecy (Article 7 Charter), as well as the rights to effective judicial protection (Article 47 Charter) and data protection requirements under EU law (GDPR and Article 8 Charter).
🇪🇺⚖️🇵🇱 We now know what are the legal angles of the European Commission's infringement procedure against Poland concerning "Lex Tusk" – some as predicted, some surprising. 1/ pic.twitter.com/LZNBZ8SbkT
— Jakub Jaraczewski (@email@example.com) (@J_Jaraczewski) June 8, 2023
The Law and Justice party (PiS) has stated previously that the committee the law establishes is essential to improving the country’s “cohesion and internal security” following Russia’s invasion of Ukraine.
Responding to a potential investigation of the EU, the Polish Minister for the European Union, Szymon Szynkowski vel Sęk, stated yesterday that the goal to undermine Russian influence is clear. He tweeted: “We will calmly pass on the legal and factual arguments in this case after reviewing the [Commission’s] concerns.”
Over half a million protesters gathered in Warsaw on June 4 to protest against the government and its new law. Furthermore, in a poll by the conservative daily newspaper Rzeczpospolita in May, only 29% of people approved of the law and 47.5% of the Polish people opposed it.
Poland has 21 calendar days to respond to the Commission’s concerns before the Commission may send a reasoned opinion as the next step to the infringement procedure. If Poland continues not to take action, this may be another case that ends up at the ECJ.
Editor’s Note: The opinions expressed here by the authors are their own, not those of Impakter.com — In the Featured Photo: Polish and European Union flags are tied together. Featured Photo Credit: Kasia Derenda.