The latest confrontation between Warsaw and Brussels is more than a judicial disagreement: it marks a key moment in the struggle between the rule of law and the autocracy that threatens the very essence of the European project.
Last week, Poland’s constitutional court ruled that the decisions of the Court of Justice of the European Union (CJEU) regarding Polish courts violate the Polish constitution. The ruling came two days after the CJEU declared that a chamber of the Polish Supreme Court does not meet the EU criteria independent court and must cease operations. The Polish authorities, in turn, said that they are not obliged to follow the sentence, and simply ignored it.
Challenge the supremacy of EU law and the verdicts of the highest judicial body of the bloc is not a minor offense. The EU is, in essence, a system of rules that requires respect and needs a final arbiter when its application is questioned.
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 courts and governments tend to complain about the taking of power by the European institutions and even question the decisions made by the CJEU.
The current conflict between Warsaw and Brussels / Luxembourg is of different magnitude, and framing it as a defense of Polish sovereignty against an EU overreach is silly.
The subjugation of the judiciary it is a key part of the anti-democratic project of Jaroslaw Kaczynski, the leader of the ruling Law and Justice (PiS) party. And the intention of the Polish authorities is nothing less than to deny the EU the power to ensure that the courts of its member states remain independent and are not subject to political pressure.
Article 19 of the EU treaty guarantees “effective legal protection” for all EU citizens and businesses. The Polish government says that this fundamental provision violates the Polish constitution because it gives the CJEU competence to assess whether national courts, including those in Poland, meet standards of judicial independence, standards that are recognized and consolidated internationally.
If the EU – the Commission, the CJEU and the member states – tolerated this challenge, it would pave the way for the destruction of the union. It would give member states the freedom to decide not only the structure of their judicial systems, which is the sovereign right of all countries, but also the principles on which they are based. The EU is a union based on a common market and common citizenship, but an independent judiciary is also a common good. Allowing member states to subvert it would be suicide.
In Poland, judges have been harassed for defending the separation of powers, submitting questions to the CJEU and enforcing their rulings. The disciplinary system of judges is fully controlled by the Minister of Justice who appoints both prosecutors and judges and can personally prosecute each and every judge in the country.
This system, unsurprisingly, condemned last week by the CJEU for violating EU principles, is used to intimidate judges, persecute those who criticize 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 subordinate constitutional court risk the future of the country and that of the EU.
All this is reflected in a report published this week by the European Commission as part of its annual monitoring of the rule of law. Despite the emotionless language, the report reads like a desperate cry, or even an accusation.
“There are risks to the effectiveness of the fight against high-level corruption, including the risk of undue influence in prosecutions for corruption for political purposes,” notes the document on Poland, which shows that it was not a lack of knowledge but political determination could not prevent the current confrontation. Now the stakes for both the EU and Poland could not be higher.
The Commission has already given Warsaw until August 16 to comply with the CJEU’s verdict. Otherwise, Brussels will ask the court to impose daily financial penalties.
But the Commission must go beyond issuing an ultimatum: it must clearly state that as long as constitutional barriers to the application of EU law are in place in Poland, payments from the Recovery Fund will be withheld. In addition, the executive must activate the new conditionality mechanism which is supposed to protect the financial interests of the EU against risks related to shortcomings of the rule of law. Obviously, all of this will not work without the public backing of the member states.
In short, the EU must let money, its most powerful argument, speak, as all the most diplomatic ways have failed.
The recent escalation of Warsaw’s conflict with the EU could be the swan song of Kaczynski’s waning power. Its parliamentary majority is crumbling and the return of donald tusk – his old political enemy – Poland relives unpleasant memories. For Kaczynski, this is a race against time. By tightening the autocratic screws, you want to secure the power before it escapes. But another one after Hungary, the autocracy reinforced by huge EU funds would open the way to the 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.
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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George is Digismak’s reported cum editor with 13 years of experience in Journalism