The struggle to maintain the rule of law in Poland presents an acute dilemma for Poland’s EU partners. In ordinary times, it would be obvious that member states’ leaders should notice, and that Brussels should take decisive action. Yet the conflict over migration policy, trade disputes with the United States and divisions over the reform of the Eurozone have pushed the problem of democracy in Poland into the background. “Pragmatists” argue that opening a new front within the Union should be avoided. A clash with Warsaw would obstruct a common EU policy towards mounting internal and international challenges. Meanwhile, “pushed into a corner”, the Polish government would become even more radical and unconstructive.
In fact, the opposite is closer to the case. Achieving effective EU actions on both internal and international challenges requires the EU to address the question of rule of law in Poland. If, in this difficult moment, the EU wants to maintain its capacity for decisive external action, it needs to get its own house in order. If the EU fails to act, others will take the lack of reaction as a green light for similarly disregarding the most basic EU rules. Viktor Orbán, for example, is currently preparing similar reforms. Meanwhile, there are signs that Liviu Dragnea, leader of Romania’s governing Social Democratic Party shares similar ambitions. Turning a blind eye on the rule of law in Poland, would mean the no EU policy would be credible and have a particularly destructive impact on enlargement policy, too. How can candidate countries be expected to treat difficult democratic reforms seriously if these rules are ostentatiously undermined within the EU?
Against this difficult backdrop, the struggle for the rule of law in Poland has reached a critical stage. A purge will take place at Poland’s Supreme Court at the start of July. Based on a new and probably unconstitutional law, about one-third of the Court’s judges will have to retire early. They will be replaced by nominees of the National Judiciary Council, which is already politicised and controlled by the ruling PiS party. The number of judges will also increase from the current 81 to 120, ensuring that PiS nominees have a majority.
If the Court of Justice rules that judicial independence has been violated, the government in Warsaw will have to adjust Polish regulations to EU requirements
The ruling party has already dismantled or taken over Poland’s other judicial organs– The Constitutional Tribunal, the National Judiciary Council, the lower courts. The Supreme Court is the last pillar of Poland’s independent judiciary. The end of its independence will deprive the country’s political system of a key break on he ruling party ability to use (and abuse) power. By effectively centralising all power in Poland, the politicisation of Poland’s courts amounts to one of the gravest breach of the rule of law in the EU’s history.
Moreover, the politicisation of the courts is just the latest stage in the process of anti-democratic change in Poland. Control over the judiciary is not an end in itself, but rather an instrument in the struggle for power. Polish society is divided and the current changes have met with resistance. As American political scientists Steven Levitsky and Daniel Ziblatt show in their book How Democracies Die, the road from dismantling the foundations of the rule of law to various forms of authoritarianism is often very short.
European Commission First Vice President Frans Timmermans’ visit to Warsaw on Monday shows that the EU has exhausted the path of dialogue. The Polish government is not ready to go beyond the cosmetic corrections to the laws on common courts and the Supreme Court that have already been implemented.. In this situation, the European Commission should send the controversial law to the European Court of Justice, which will rule on whether it violates EU principles on judicial independence. Unlike the process linked to Article 7 of the Treaty on the European Union, this would lack the odium of excessive politicisation. It would be a legal procedure to check whether Poland’s actions comply with the EU’s basic principles. If the Court of Justice rules that judicial independence has been violated, the government in Warsaw will have to adjust Polish regulations to EU requirements.
This solution has been backed by most factions in the European Parliament. On June 14, the chairs of five political groups, including the biggest one, the European People’s Party, sent a letter on the matter to the president of the European Commission, Jean-Claude Juncker. There are strong signals from Poland, too. Former presidents (including Lech Wałęsa), prime ministers, ministers of foreign affairs, lawyers, former ambassadors, intellectuals and over 160 NGOs have called for the law on the Supreme Court to be sent to the European Court of Justice. In a ruling in February, the Court of Justice itself deemed that it can assess the state of judicial independence in a member state.
For now, though, the European Commission is putting off sending Poland’s law on the Supreme Court to the EU Court of Justice. The most recent college of commissioners was the latest at which, contrary to expectations, European Commission President Jean-Claude Juncker opted not to consider the matter. Juncker’s inaction makes the stance of member states, which have so far shown considerable restraint, key. The rule of law in Poland will be discussed at the meeting of EU ministers for Europe on June 26. During the discussion, member states should remember that not just Polish democracy is at stake. European leaders’ response will show member states, and their partners, just how seriously they treat their own principles and how committed they are to maintaining an EU that can act effectively on the international stage. Time is running out: July 3 is imminent.
Katarzyna Pełczyńska-Nałęcz – Director of Idea Forum, think-tank of the Warsaw based Stefan Batory Foundation, ECFR Council member, former Polish deputy foreign minister and ambassador to Moscow.