WARSAW — The new European Commission is going to have to decide if it has the stomach for a continued brawl with Poland's ruling Law and Justice (PiS) party over allegations that the country is backsliding on democracy.

PiS, which won a thumping reelection in October, is hoping for “a new opening” with Brussels, as Prime Minister Mateusz Morawiecki puts it. Warsaw feels that incoming Commission President Ursula von der Leyen owes PiS, after the nationalist party backed her for the Commission's top job.

"Von der Leyen has been saying the rule-of-law issues will be treated with the same standards for all EU countries and it’s very much appreciated by us ... We don’t feel we’re treated the same way as some other countries," said Paweł Jabłoński, Morawiecki's European policy adviser.

But those opposed to the Polish government's sweeping judicial reforms are begging the Commission not to abandon them.

“What’s going on in Poland is not our internal issue. This is the issue of rule of law in the whole European Union and we hope the Commission understands it," said Sylwia Gregorczyk-Abram, a lawyer with Free Courts, an association protesting what it sees as the politicization of Polish courts. “We are EU citizens and we have the right to be protected. We expect that the European Commission will react to a breach of EU law.”

The new Commission will check every year if all member countries are conforming to EU democratic rules.

The group, made up of four lawyers, organizes meetings of judges opposed to PiS's changes, lobbies in Brussels, and represents opponents before the Court of Justice of the EU.

Warsaw is pleased that Frans Timmermans, the Dutch Commission vice president, will no longer oversee rule-of-law issues, instead leading von der Leyen's Green Deal program. Over the last four years Timmermans has been Brussels' front man in the battle against the changes made to Poland's courts by PiS — earning him the antipathy of the Polish government.

Although the commissioners responsible for rule of law in the new Commission — Belgian Didier Reynders and Czech Vĕra Jourová — declare they want to continue the fight, there is softer tone coming out of Brussels.

Jourová, designated vice president responsible for values and transparency, told reporters last month that she might be more "authentic" in running rule-of-law issues, as she's from the region. “That it’s not Brussels which dictates, it’s the person who lived half of [her] life in the regime where the freedoms were not guaranteed,” she said.



Jourová pledged to use “all openness and fairness and diplomatic skills” in communicating with EU countries, but she did add that “I am really worried about the development which we see in Poland and in Hungary.”

The new Commission isn't planning to ignore rule of law issues — but in order not to single out the Central Europeans it will check every year if all member countries are conforming to EU democratic rules. Warsaw and Budapest hope that scattershot approach will take the spotlight off their governments.

Keep up the fight

But Free Courts worries that Brussels will let up the pressure. It insists there is something deeply wrong with Polish courts under PiS, spelling out what the lawyers call the government's judicial “deadly sins” — replacing members of the Constitutional Tribunal and the National Judiciary Council, the country's highest legal bodies, as well as hundreds of judges from common courts with party appointees; merging the posts of the prosecutor general with the minister of justice; attempting to change the composition of the Supreme Court; creating a new disciplinary system for judges; and unleashing an online hate campaign against judges opposed to the reforms.

“All these things that were obvious for us — in a legal, ethical, moral, cultural way — have been destroyed,” said Gregorczyk-Abram.

While the government hopes to lower the temperature in its fight with Brussels, it has no intention to do the same at home by slowing the pace of judicial changes.

“Without a deep reform of the courts, fixing the country is very difficult, as this is the last barricade, the last level of decision-making in many different cases,” Jarosław Kaczyński, the leader of PiS and Poland’s de facto ruler, told Polsat television before last month's election.

The government has repeatedly stressed that the country needs court reforms to speed up the sluggish pace of cases and to turf out judges who began their careers before 1989, when Poland was under communist rule.

The Commission and the CJEU argue that Polish judges are part of the EU-wide judicial system.

Jabłoński said that much of the fuss with Brussels stems from miscommunication.

“The reform was substantially positive for the judiciary but it wasn’t best executed from the communication perspective. Some tactical missteps were made: the lack of debate, the lack of proper communication, passing through some of these acts at night,” he said. "We’ll have to make sure that new changes are better communicated.”

The government insists that Brussels should butt out of changes to the court system, and points out that other EU countries, such as Germany or Spain, have politically influenced judicial appointments.

The Commission and the CJEU have been skeptical of that viewpoint — arguing that Polish judges are part of the EU-wide judicial system.

"Ordinary Polish courts may be called upon to rule on questions connected with EU law, and they must therefore meet the requirements inherent in such protection," the CJEU said in a ruling earlier this month finding that a law lowering the retirement age of Polish judges and prosecutors breached EU rules.

The court has a raft of Polish cases; an upcoming one alleges that the newly elected National Judiciary Council — a body that nominates judges — is not independent, as it’s chosen by politicians.

The court's Advocate General Evgeni Tanchev said in June that the council “does not satisfy the requirements of judicial independence under EU law.” If the court follows that opinion, such a verdict would question the legality of all new judges appointed by the council, and of their judgments.

Such a ruling would put Warsaw in a bind. It could follow the court and walk back its legal changes, suffering a political humiliation at home, ignore the CJEU and force the Commission to act, or try to move as little as possible while not provoking Brussels.

New tools

Both Poland and Hungary are also under the EU's Article 7 procedure over charges that they are breaching the bloc's fundamental values. But those processes are unlikely to be closed anytime soon, in particular in Budapest's case, where concerns regarding the rule of law involve issues ranging from media independence to religious freedom and minority rights.

But the article is a blunt weapon because stripping an EU country of its voting rights has to be approved by all other members, and Hungary and Poland have a mutual defense pact making such a step impossible.

Despite those qualms, Marek Prawda, the head of the representation of the European Commission in Poland and a former Polish ambassador to the EU fired by the PiS government, argued that Article 7 is having an impact on the government's actions.

“Its impact isn’t only about a final vote in the Council, but about the political significance of the rule of law procedure," he said. "It significantly weakens the political position of a country which is subject of the Article 7 proceedings."

It's not that Article 7 has been dropped, but the pressure point has shifted to the Court of Justice, where there are fewer political impediments.

At the same time, the Commission — together with countries like Germany, France, the Netherlands, and Sweden — is pushing to link EU funding to respect for the rule of law. For Warsaw and Budapest, the proposal poses a real risk of financial penalties, and the Hungarian government has already threatened to veto the bloc's long-term budget if a link to rule-of-law criteria is included.

Poland and Hungary are likely to ultimately agree to a new sanctioning mechanism as long as it is narrow in scope and difficult to implement.

Jabłoński said Poland wouldn’t oppose this solution as long as there’s “clear and explicit criteria” of deciding what’s a rule-of-law breach and what’s not.

That's going to force the incoming Commission to choose whether to have another bruising battle with the two countries.

Lili Bayer contributed reporting.