Does the EU have what is needed to stop the destruction of the justice system in Poland? This is a question asked by many observers and we may know the answer soon.
The rule of law in member states is a major worry for an organisation that is often defined as a ‘Union of law’. It failed in Hungary, where the ruling party has taken over the democratic institutions.
The escalating legal chaos in Poland is the next test. It will not only define the Ursula von der Leyen Commission but affect the EU with all its member states.
The pessimists say that so much damage has been done in Poland without effective EU responses that the Union has already been exposed as a paper tiger.
The optimists claim that an organisation as large and complex as the EU needs time to adjust, but once it does, it becomes unstoppable.
The rule of law crisis in Poland has escalated so much that the next months will tell us whether pessimists or optimists carry the day.
The pessimists are right in that the ruling Law and Justice party (PiS) has done a lot of damage. It was elected in 2015 in a peaceful, competitive election, but it interpreted its majority, of a 38 percent vote share, as a revolutionary mandate.
PiS strongman Jarosław Kaczyński had long made clear that he considers judges a nuisance to elected politicians. Then prime minister Beata Szydło, also from PiS, simply refused to publish judgements by the Constitutional Tribunal – usually a formality – because she did not like them.
Without being published they were not valid and PiS could appoint new judges to that court.
The Polish government’s white paper that justified the legal changes cited statistics wrongly. Senior members of the ministry of justice ran a secret smear campaign against judges.
When this became known, they resigned, but the minister of justice did not. Public television, which has been forced to toe the government line, is now showing a whole ‘documentary’ at prime time on how bad judges really are.
In this context, it is difficult for many Poles, and for the European public, to believe that PiS embarked on an honest reform to improve the justice system. The devil might be in the legal details, but PiS’s bad faith was there to see from the beginning.
The debate on the EU’s response has focused much on the Article 7 process, under which Poland’s government could one day lose its voting rights in the Council.
‘Nuclear option’ or toy gun?
For many years the article was described as the ‘nuclear option’, but it was triggered 25 months ago and so far has not been more dangerous than a toy-gun.
It has resulted in polite exchanges among member states behind closed doors. The real test of the EU’s mettle are the judgments of the European Court of Justice and how the Polish government will respond to them. And that test is already here.
The PiS government is on a collision course with EU law, but instead of slowing down, it has accelerated the pace by proposing a new law that seeks to discipline judges for example by punishing those who express criticism of the government’s ‘reforms’ or challenge the legitimacy of judges parachuted in by PiS.
Soon the European Court of Justice will have to decide whether it considers the new disciplinary chamber of Poland’s Supreme Court to have been established in violation of EU law.
If it does so, a first key element of PiS attempt to control judges will be knocked out.
It is possible that the PiS government will refuse to comply with such a decision. Contrary to the clichés peddled by eurosceptics, the Union is far from an omnipotent hegemon. It has no police to send to member states to enforce its judgements.
Every member state is itself responsible to enforce EU law. The whole system is built on mutual trust.
The commission could ask the court to impose a fine for every day that Poland does not comply with the judgement. If the PiS government refused to pay the fine, the commission may hold back the equivalent sums of EU funding for Poland, a country that receives significant EU funds.
This would be the one tangible lever of pressure that the EU has.
All this would not mean the exit of Poland from the EU, as is now often speculated. Only the Poles could decide to leave the EU, no country can be expelled.
But EU institutions and other member states could reduce co-operation with Poland at many levels. Mutual trust is a two-way street. It is not likely that the European Court of Justice would argue with measures that reduce the co-operation with a member state that violates its rulings.
Hopefully, it will not come to that.
The PiS government is popular with part of the electorate for understandable reasons. It has provided much more significant support to families and it is collecting taxes more systematically than its predecessor.
Its stubborn fight against the rule of law has tarnished such achievements. Hopefully, parts of the party will try to save it from itself.
Or the old and newly-appointed judges could agree on a way to safeguard the independence of their branch of power. For the rest of Europe, a solution found by Poles would by far be the best outcome.