On Thursday, October 7th, the Polish Constitutional Tribunal – a court that is not fully independent and is partially composed of unlawfully appointed judges – issued a defiant verdict that ostensibly found several provisions of the Treaty of the European Union inconsistent with the Polish Constitution. How should the European Union react?
The Polish case, brought forth personally by Prime Minister Mateusz Morawiecki, was presented as a question about the primacy of EU law and the relationship between the Polish Constitution and EU treaties. But, in fact, it was far from being a sincere effort of judicial dialogue. Between the lines of the prime minister’s statements in the case and the opinion of the tribunal, a clear picture emerges of this case being an attempt to provide the Polish government with a legal cover for its actions regarding the independence and integrity of Polish courts.
Since taking power in 2015, the government formed by the ruling party Prawo i Sprawiedliwość (PiS) has continued to weaken the independence of Polish judges and to dismantle checks and balances meant to keep the separation between branches of power in Poland. Judges were forcibly moved from one division of the court to another or altogether suspended from their jobs. Overnight, prosecutors were ordered to move to another office 500 km away.
Belatedly – and initially not strong enough – the European Union reacted to these threats: the European Commission launched multiple infringement procedures against Poland and the Court of Justice of EU (CJEU) handed out increasingly damning judgements on these controversial “reforms”. By interpreting the treaties in light of these developments, the CJEU began instructing Polish judges to fully apply the long-standing principle of primacy of EU law over domestic laws and thus prevent further erosion of the country's democratic foundations.
Naturally, the Polish government didn’t appreciate this forceful interference in its plans to subjugate the judiciary. At first, the government focused on delaying and stalling the European Commission's requests with insincere dialogue and flouting the judgements from the European Court of Justice, while at the same time presenting the situation as a good-faith disagreement on how the European Union should be set up.
This year, such spin became increasingly untenable after the European Court of Human Rights, a body unrelated to the EU, found that several elements of the Polish “reforms” amounted to violations of the European Convention on Human Rights. In the face of international pressure, Warsaw chose to up the ante and turned to the Constitutional Tribunal in search of a legal crutch that the government could use to justify its dismissal of the CJEU's judgements and its persecution of Polish judges who refuse to budge and continue to respect EU law. The tribunal provided exactly that.
Last week’s decision of the tribunal is yet another escalation of this crisis. Legally, the EU institutions and the other member states are not bound by the unprecedented ruling. Hopefully, the other courts of the Polish judiciary will refuse to respect a faulty decision handed out by a defective tribunal.
Does the crisis constitute a “Polexit”? Hardly, as one can’t compare a judgement by a politically motivated court to triggering Article 50, a formal decision to leave the EU that must be taken by a government, usually following a referendum, like in the British case. But the consequences of Warsaw assaulting the EU legal order could be far-reaching, potentially turning Poland into a second-class member of the bloc.
The CJEU could, for example, conclude that the rule of law in the country has eroded to the point where EU systems of legal cooperation, such as the European Arrest Warrant, can no longer be applied with regards to Poland. This potential “legal Polexit” could end up with Poland placed partially outside the EU's legal order, an outcome incredibly damaging to everyone involved.
The EU must answer the challenge. There are multiple tools for Brussels to use. Infringement procedures by the Commission followed by bringing a case before the CJEU are a natural option, although this option has been tried and tested with Warsaw, with questionable results.
But far more effective is the application of financial pressure. The Commission is already withholding the approval of Poland’s €36-billion recovery plan and is waiting for the CJEU to slap daily fines on Warsaw over its refusal to implement a previous verdict from Luxembourg.
The new rule of law conditionality mechanism, which links the payout of EU funds to the respect of fundamental rights, could be finally triggered after almost 10 months of inaction. This mechanism is facing legal challenges from Hungary and Poland before the Court of Justice. But the arguments from both countries are weak, and their case before Luxembourg is a clear attempt at hindering the Commission's efforts. Brussels should not wait for the legal proceedings to end before triggering the mechanism and suspending EU funds to those countries who breach EU law.
The other member states shouldn't sit idly, either. While several capitals issued strong statements after last week’s verdict and expressed their total support for the Commission, there is room for diplomacy and pressure to help Brussels out.
Crucially, other countries could sue Poland before the CJEU over damage to the rule of law and danger to the EU's legal order. Such cases would prove their rhetoric is backed with concrete action and could bring swift effects if the plaintiffs were to request interim measures to halt some of the most egregious actions of the Polish government.
Some capitals, however, see this kind of lawsuit as too political and too risky for bilateral relations. These concerns did not stop the Czech Republic, Poland’s neighbour and often-loyal partner, from launching an interstate case concerning environmental damage caused by a Polish power plant in Turów. Czechs weren’t held back by the prospect of souring relations with their friends, and neither should be other EU countries who pride themselves as “friends of the rule of law”.
Beyond that, member states should not buy into the framing of this situation as a conflict of “Poland versus the European Union”. Poles do not want to leave the union: despite a highly polarised society, public opinion polls suggest the EU is far more popular than the PiS government itself.
Poland’s partners in the EU should prove in tangible ways that they are on the side of independent judges and prosecutors who are under ever-growing pressure. There’s no use in hesitating.
Jakub Jaraczewski is a research coordinator at Democracy Reporting International (DRI), a Berlin-based group that analyses democratic developments across the world.
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