Brussels –The institutional crisis currently rocking Poland is the result of a political clash that has been ongoing for over ten years and which now strikes at the very heart of the rule of law: the judiciary. In Warsaw, Donald Tusk’s pro-European government is seeking to restore the independence of the courts following reforms introduced by the national-conservative Law and Justice (PiS) party, which was in power from 2015 to 2023. However, this attempt is being thwarted by President Karol Nawrocki, a PiS ally, who is challenging the new appointments and accusing the government of violating the constitutional order.
Tensions came to a head on 30 October, when Judge Anna Korwin-Piotrowska announced the one-month suspension of the President of the Constitutional Court, Bogdan Święczkowski, and his deputy. The two, linked to the previous political era, do not recognise the judges appointed by the new majority and are accused of obstructing the institution’s functioning. Upon hearing the news, PiS supporters began demonstrating outside the Court, forcing the police to intervene to quell the protest. Meanwhile, the court’s official X profile described the government’s intervention as a “coup d’état”, while some demonstrators chanted slogans against Tusk and attempted to breach the security barriers. Three people were arrested. While the police were guarding the building, the President of the Republic, Nawrocki, returned early from a trip to Senegal to reach the court and show his support for the judges under scrutiny. At that point, the political clash escalated, with Prime Minister Tusk speaking of a new chapter in the PiS’s destruction of the rule of law; the party leader, Jarosław Kaczyński, accused Tusk of attempting a coup d’état.
Tusk’s speech
As tensions escalated, on Friday Tusk pointed out on X that “restoring respect for the law is his government’s duty” and that “after years of PiS-style lawlessness, this is a difficult, sometimes painful process that requires decisive action. There is no other way.” Furthermore, on Saturday evening, the Prime Minister spoke about the constitutional crisis currently underway in the country, with accusations levelled at the leaders of the nationalist and conservative opposition of seeking to “destroy democracy and the rule of law.”
Tusk’s criticism was blunt: “For years, there have been organisations and politicians in Poland who want to destroy democracy and the rule of law.” The Prime Minister also pointed out that the attempt to reform the Constitutional Tribunal through an agreement between the majority and the opposition had come to nothing. Therefore, “we waited patiently for the election of new judges, until the terms of office of their PiS-appointed predecessors had expired,” he stressed. “The Sejm made the selection. The judges took their oaths, but the President refused to accept them. The legally elected judges were blocked by the President of the Court, Święczkowski, and were unable to begin their work. And when, after weeks of patient waiting, they decided to take up their duties, they were attacked.” Tusk also clarified that the police had been sent to the scene of the demonstration to “protect the Court from attackers.”
This morning (2 November), Tusk once again stressed that “a solution to the conflict is simple and possible without any amendments to the Constitution.” In other words, “the President recognises the judges lawfully elected by the Sejm, as required by the Constitution, and they take up their duties in the Court. For now, President Nawrocki has chosen a showdown, which could cost Poland dearly” because “a democratic state governed by the rule of law cannot yield to violence, regardless of how powerful external forces may support the attack by PiS, Konfederacja, Braun and Nawrocki. And it will not yield.”
How PiS changed the Polish justice system
To understand the conflict, it is necessary to go back to 2015, when the PiS won the elections and started a far-reaching transformation of the institutions. The party argued that the judiciary was inefficient and still influenced by the legacy of communism. However, the reforms, presented as a means of making the justice system more effective and accountable, increased the influence of political power over the appointment and discipline of judges.
The first battleground was the Constitutional Court, which was called upon to assess the compatibility of laws with the Constitution. The new government contested certain appointments made by the previous majority, intervened in the Court’s operating rules, and refused to publish and implement some of its rulings. The composition and functioning of the body thus became the focus of a political battle that undermined its authority and independence.
The process continued with the reform of the National Council of the Judiciary, the body involved in selecting judges. The amendment to the rules governing the appointment of its members gave Parliament a decisive role, thereby increasing the political majority’s influence over judges’ careers. The Supreme Court was also affected by the reforms: new provisions on the retirement age paved the way for the early retirement of serving judges, whilst a Disciplinary Chamber with powers over magistrates was established.
The problem was not merely who appointed the judges, but also the possibility of influencing their decisions through disciplinary proceedings. The Court of Justice of the European Union, on several occasions, challenged aspects of the reforms – as did the European Court of Human Rights and the Council of Europe – calling for effective guarantees of independence and ruling that the Polish Constitutional Tribunal could not be regarded as a legitimate judicial body, as it had lost its independence and impartiality following the appointments of its president and members under the PiS. The dispute reached the point that, in 2021, the Polish Constitutional Tribunal questioned the compatibility of certain provisions of the European Treaties with the national Constitution, fuelling the conflict over the primacy of EU law.
Tusk’s victory did not resolve the problem
After eight years of PiS government, in the 2023 elections, a coalition led by Tusk, the former President of the European Council, returned to power. The new government promised to restore the independence of the judiciary and bring the country back into line with its European obligations. However, restoring the rule of law has proven to be more complicated than a simple change of government: the disputed appointments are now an integral part of the judicial system, and the institutions cannot agree on how to rectify them.
The government must also contend with Nawrocki, elected president in 2025, who is politically close to PiS and could hinder the reform programme. The conflict is particularly evident in the Constitutional Tribunal: the parliamentary majority has appointed eight new judges, but the Head of State has refused to ratify their appointments. According to the European Commission, the power to make these appointments lies with the Sejm, the lower house of the Polish Parliament.
The decision to suspend the Court’s leadership and to allow the new judges to carry out their duties despite the lack of presidential recognition, in turn, raises questions about the legitimacy of the procedures adopted. This is the paradox of the Polish crisis: rectifying the consequences of reforms deemed to undermine the independence of the courts means intervening in institutions whose composition and authority are already contested.
Brussels’ intervention
The affair also has a European dimension. In December 2017, the Commission launched proceedings against Poland under Article 7 of the Treaty on European Union, which allows for intervention where there is a risk of a serious breach of the EU’s fundamental values. The conflict over the judiciary also contributed to the suspension of European funds, which was linked, amongst other things, to compliance with conditions relating to the rule of law.
With Tusk’s arrival, Brussels recognised the progress that had been made. In May 2024, the Commission closed the Article 7 procedure, concluding that there was no longer a clear risk of a serious breach of the rule of law. The decision, however, did not mean that all the reforms had been completed: the Polish government had committed to continuing work on the independence of the judiciary, the Constitutional Tribunal and the National Council of the Judiciary.
The Commission has now once again called for compliance with the Polish Constitution and European case law, urging Nawrocki to validate the appointments of the new judges. The crisis shows that the closure of the European procedure has not resolved the root of the problem. For the EU, what is at stake is not only the political stability of Warsaw, but the guarantee that the courts of a Member State are independent and able to apply European law. For Poland, on the other hand, the challenge also concerns the possibility of moving beyond the PiS legacy without turning the restoration of the rule of law into a new battleground for institutional conflict.
English version by the Translation Service of Withub
