The new judicial system in Poland is incompatible with the membership conditions of the European Union. That situation might be manageable in the immediate term, but it is not sustainable indefinitely. However, until now the reaction of the European institutions has had a limited impact on the developments in Poland.
Since Law and Justice (PiS) came to power in Poland in 2015, it has implemented revolutionary changes in the legal system. According to many prominent Western and Polish institutions and associations (e.g. European Network of Councils for the Judiciary, Venice Commission) they aim at taking control of the Polish judiciary in open defiance of the Constitution. As of beginning of July 2018, PiS is enjoying direct control over the Constitutional Tribunal and the National Council of the Judiciary that appoints judges, and currently the government is taking control of the Supreme Court. The dramatic hostile takeovers constitute a crucial element of the so-called “Good Change,” the political program of PiS. It is deeply rooted in the holistic vision of a nation defined as a person (a “Sovereign”) with its own free will. Indeed, Jarosław Kaczynski has criticized many times the Polish political system as based on “legal impossibilism”. In his opinion, it was impossible for a democratically elected Polish government to fulfill the “nation’s will” because of the checks and balances imposed on it by the Polish Constitution.
Recommendations, debates …
In response to the “Good Change” in January 2016, the Commission launched a dialogue with Poland under the Rule of Law Framework. Until December 2017 the EC had provided Poland with three comprehensive recommendations. The European Parliament endorsed three resolutions expressing its support for the EC. Poland’s situation was discussed A dozen times in the European Council and in the European Parliament. All in vain. Poland defiantly rejected taking into consideration even a single sentence from the recommendations. In consequence, in December 2017, the EC recommended the initiation of a sanctions procedure under Article 7 giving the fourth list of recommendations and the last deadline to implement them. Only then did the EC decide to refer the Polish Government to the European Court of Justice for breach of EU law but the case concerns a secondary matter. In response, Poland made the first concessions, but even the Polish government described them as cosmetic and irrelevant. In effect, the EC announced that it would take Poland to the ECJ if the Polish government didn’t cancel a new law which forces the early retirement of some 40 percent of the country’s Supreme Court judges. The EC gave the Polish government one month to reverse the changes. Meanwhile, the Supreme Court issued unanimously an official resolution that it was not going to obey certain articles of the law recognizing them as unconstitutional. PiS defined the resolution as an illegal rebellion and denied any concessions.
The Irish case
In March 2018, a development in Ireland raised the possibility that the situation could be taken out of the hands of the Commission and the Council altogether. The Irish High Court refused to extradite a Polish citizen to Poland on the grounds that the changes to the Polish judicial system had been “so immense” that the rule of law had been “systematically damaged”. Moreover, the Irish High Court referred the case to the European Court of Justice. It is worth reminding that the ECJ in its unprecedented ruling from February 2018 concerning a pay dispute in Portugal declared itself competent to evaluate the independence of national judges, given their key role in upholding the EU’s legal system.
If the ECJ rules that the Polish judicial system is in contravention of European legal standards, the implementation of that ruling will constitute a crash test of the Polish commitment to the membership in an EU based on the rule of law.
CDU-CSU and Orban
The Article 7 procedure is also a challenge for Germany’s position in the EU because it considers its credibility and consistency. The main source of inspiration for the Polish “Good Change” lies within Orban’s Hungary which is definitely more advanced in the consolidation of power than PiS. (Although, a legal mandate of political transformation in Hungary is much stronger because Orban possesses a constitutional majority and his “reforms” were introduced gradually over a period of time.) It is not an accident that Freedom House recognizes Hungary as a country on the verge of being relegated to the category of “partly free.” The Hungarian media, the least free in the EU, have already sunk into this category and are systematically going down. Taking into consideration the most recent antidemocratic laws and constitutional amendments endorsed by the Hungarian parliament, the unprecedented scenario of an EU member state falling into Freedom House’s “partly free status” is highly probable. Orban’s rise is in large part due the lenient approach of his friends in the European People’s Party (EPP), especially those from the German CDU-CSU. In May 2017, during a vote in the European Parliament on whether to launch Article 7 against Orban because of the serious deterioration of democracy and rule of law in Hungary, almost 45 percent of MEPs from the EPP (excluding Fidesz) voted against the resolution and some 20 percent abstained. Among CDU-CSU parliamentarians, almost 80 percent voted against.
The German Christian Democrats have to rethink their position because, as Floris Biskamp rightly points out, “Similar developments in Italy, and other states seem likely in the near future. Since the European Union considers democracy, the rule of law, and minority rights to be among its core values and conditions of membership, Brussels is right to be alarmed over these developments. As the ‘guardian of the treaties’, the Commission must defend the rule of law against majoritarian encroachments in the name of popular sovereignty.” On the other hand, many people in Poland will not subscribe to that opinion. According to Michał Kuź, “both EP and the Commission are staffed by politicians who make political rather than simply legal decisions. […] A compromise rather than a dictate is necessary. Many supporters of the ruling party seem far too attached to the notion of state sovereignty for the government to further back off on debatable issues without losing face.”