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Poland's legal defiance is the EU’s moment of truth | View

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By Piotr Buras
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The latest confrontation between Warsaw and Brussels is more than a judicial disagreement: it marks a key moment in the fight between the rule of law and autocracy that threatens to very essence of the European project.

Last week, Poland’s constitutional tribunal ruled that decisions of the Court of Justice of the European Union (CJEU) regarding Polish courts violate the Polish constitution. Two days later, the CJEU declared that a chamber of the Polish Supreme Court does not fulfill EU criteria of an independent court and has to cease operations. The Polish authorities, in turn, said that they are not bound to follow the ruling – and simply ignored it.

Questioning the supremacy of the EU law and verdicts of the bloc’s highest judicial body is not a minor offence. The EU is in its very essence a system of rules which requires respect and needs an ultimate arbiter when their application is disputed.

However, the EU institutions are not omnipotent. The boundary between what they are allowed to do and what is reserved for the authorities of the member states is often a matter of controversy. National tribunals and governments tend to complain about the power grab by the European institutions and even question decisions taken by the CJEU.

The current conflict between Warsaw and Brussels/Luxembourg is of a different magnitude, and framing it as a defense of Polish sovereignty against a EU overreach is nonsense.

The subjugation of the judiciary is a key part of the anti-democratic project of Jaroslaw Kaczynski, the leader of the ruling party Law and Justice (PiS). And the intention of the Polish authorities is nothing less than to deny the EU the power to ensure that the courts in its member states remain independent and are not subject to political pressure.

Alik Keplicz/Copyright 2018 The Associated Press. All rights reserved.
"The subjugation of the judiciary is a key part of the anti-democratic project of Jaroslaw Kaczynski, the leader of the ruling party Law and Justice (PiS)."Alik Keplicz/Copyright 2018 The Associated Press. All rights reserved.

Article 19 of the EU treaty guarantees "effective legal protection" for all EU citizens and companies. The Polish government says that this fundamental provision violates the Polish constitution because it grants the CJEU competence to assess if the national courts – including those in Poland – meet standards of judicial independence, standards which are internationally recognised and consolidated.

Should the EU – the Commission, CJEU and the member states – tolerate this defiance, it would pave the way for the destruction of the union. It would give member states a free hand to decide not just the structure of their judicial systems – which is the sovereign right of all countries – but also the principles they are based on. The EU is a union based upon a common market and common citizenship, but an independent judiciary is also a common good. Allowing member states to subvert it would be suicidal.

In Poland, judges have been harassed for standing up for the separation of power, for submitting questions to the CJEU and for implementing its rulings. The disciplinary system for judges is fully controlled by the minister of justice who nominates both prosecutors and judges and can personally go after each and every judge in the country.

This system, unsurprisingly condemned last week by the CJEU as violating EU principles, is used to intimidate judges, persecute those who criticise the demolition of the rule of law and ultimately to silence any form of resistance to these practices. And it is in the defense of this system as a pillar of the ongoing autocratic transformation that the Polish government and its subservient constitutional tribunal risk the future of the country and that of the EU.

The EU is a union based upon a common market and common citizenship, but an independent judiciary is also a common good. Allowing member states to subvert it would be suicidal.
Piotr Buras

All this is reflected in a report published this week by the European Commission in the framework of its yearly monitoring of the rule of law. In spite of an unemotional language, the report reads like a desperate cry – or even an indictment.

"There are risks as regards the effectiveness of the fight against high-level corruption, including a risk of undue influence on corruption prosecutions for political purposes," the paper notes about Poland, proving it wasn't the lack of knowledge but political resolve that failed to prevent the current showdown. Now the stakes for both the EU and Poland could not be higher.

The Commission has already given Warsaw until 16 August to comply with the CJEU verdict. Otherwise, Brussels will request the court to impose daily financial penalties.

But the Commission must go further than issuing an ultimatum: it needs to clearly say that, as long the constitutional barriers for the application of the EU law are in place in Poland, payments from the Recovery Fund will be withheld. Moreover, the executive should trigger the newly established conditionality mechanism which is supposed to protect the EU financial interests against the risks related to deficiencies of the rule of law. Obviously, all of this will not work without the public backing from the member states.

In short, the EU needs to let the money – its most powerful argument – speak, since all more diplomatic ways have failed.

The recent escalation in Warsaw’s conflict with the EU could be the swan song of Kaczynski’s waning power. His parliamentary majority is crumbling and the return of Donald Tusk – his old political enemy – to Poland revives unpleasant memories. For Kaczynski, this is a race against time. By tightening autocratic screws, he wants to secure the power before it slips away. But yet another, after Hungary, autocracy beefed up by huge EU funds would open the way for self-destruction of the European project.

This is the moment of truth when both the EU and Poland need a very powerful political signal that crossing indisputable red lines – the binding nature of the rule of law – can and will not be tolerated.

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Piotr Buras is the head of the Warsaw office of the European Council on Foreign Relations and co-author of the report "Defending the EU against grand corruption. The rule of law mechanism and Poland".

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