The Polish opposition Conservatives (PiS)-aligned President Karol Nawrocki has vetoed legislation that would have placed a judicial body responsible for recommending judicial appointments under the control of judges appointed before the last PiS government (2015-2023).
The law proposed by the centre-left government led by Prime Minister Donald Tusk was passed by the parliamentary majority that supports him. It returned the power of appointing the National Council of the Judiciary (KRS) to judges.
The previous PiS government had changed the system of election so that most of the members of the KRS were elected by parliament.
The PiS’s move was opposed by many Polish lawyers and by European Union institutions as it undermined judicial independence. European Court of Justice (ECJ) rulings have deemed the proposed judicial body to be illegitimate due to alleged political influence over its election.
The PiS, though, defended the reform, arguing that electing such bodies by parliaments was the practice in several EU states, including Germany and Spain.
It also noted that EU treaties reserve the power with regard to the organisation of judicial systems to member states and that the Polish Constitution, on the basis of which Poland joined the EU in 2004, does not specify the system of election of the KRS.
The European Commission had, during the lifetime of the PiS government, blocked Poland’s post-pandemic funding over alleged rule of law violations but that money was unblocked immediately on the arrival of the Tusk government at the end of 2023.
That government has promised it would return electing the KRS to judges and that it would remove or demote the almost 3,000 judges appointed on recommendation of the KRS by then-president Andrzej Duda.
It was the move to disenfranchise those judges, with the provision that only judges who had at least 10 years experience, that became one of the main reasons why Nawrocki decided to veto the legislation yesterday.
Nawrocki has consistently argued that challenging the status of nearly 3,000 judges threatens legal chaos and there have been several instances of court verdicts being overturned because of the questioning of the status of judges.
The Tusk government was expecting the veto. It has therefore initiated changing the make-up of the KRS by electing in parliament members of the body who have been selected by their peers when the term of office of the current members expires in May.
The ruling majority will therefore use the election process to push through the candidates that receive the backing of the judges who were appointed before the PiS reforms.
It is almost certain, though, that the opposition PiS will challenge that in the constitutional court, which is currently dominated by judges elected by parliament during the lifetime of the old PiS government.
The constitutional court is presently viewed as illegitimate by the Tusk government because it challenges the legality of the election of three out of the 15 of its members.
Nawrocki recognises the constitutional court and would not feel obliged to nominate judges recommended by a KRS the composition of which had been questioned by that court.
