24.07.2021 – 09:30
The latest confrontation between Warsaw and Brussels is more than a court dispute: it marks a key moment in the struggle between the rule of law and autocracy that threatens the very essence of the European project.
Last week, Poland’s constitutional court ruled that decisions by the European Court of Justice (CJEU) regarding Polish courts violate the Polish constitution.
Two days later, the CJEU declared that a chamber of the Polish Supreme Court did not meet the EU criteria of an independent tribunal and should cease operations.
The Polish authorities, on the other hand, said they were not obliged to follow the decision – and simply ignored it.
Questioning the supremacy of EU law and the decisions of the bloc’s highest judicial body is no small offense.
The EU is essentially a system of rules that requires respect and needs a final arbiter when discussing their implementation.
However, the EU institutions are not omnipotent.
The line between what they are allowed to do and what is reserved for the authorities of the member states is often a matter of controversy. Courts and national governments tend to complain about the takeover of power by European institutions and even question the 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 an overrun of the EU is meaningless.
Submission of the judiciary is a key part of the anti-democratic project of Jaroslaw Kaczynski, leader of the ruling Law and Justice Party (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.
Article 19 of the EU treaty guarantees “effective legal protection” for all EU citizens and companies. The Polish government says this basic provision violates the Polish constitution because it gives the CJEU the power to assess whether national courts – including those in Poland – meet the standards of judicial independence, internationally recognized and consolidated standards.
If the EU – the Commission, the CJEU and the member states – tolerate this challenge, it would pave the way for the destruction of the union.
This would give member states a free hand 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 overthrow it would be suicide.
In Poland, judges have been harassed for standing up for the separation of powers, for questioning the CJEU and for enforcing its decisions.
The disciplinary system for judges is fully overseen by the Minister of Justice who appoints both prosecutors and judges and can personally prosecute each judge in the country.
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 overthrow it would be suicide.
All this is reflected in a report published this week by the European Commission in the framework of its annual rule of law monitoring.
Despite the unemotional language, the report reads like a desperate cry – or even a lawsuit.
“There are risks to the effectiveness of the fight against high-level corruption, including the risk of undue influence in prosecuting corruption for political purposes,” the paper notes for Poland, proving that it was not lack of knowledge but political determination. that failed to prevent the current confrontation. Now stocks for both the EU and Poland could not be higher.
The commission has already given Warsaw until August 16 to comply with the ECHR ruling.
Otherwise, Brussels will ask the court to impose daily financial fines.
But the Commission must go beyond issuing an ultimatum: it must clearly state that, as long as there are constitutional obstacles to the implementation of EU law in Poland, payments from the Recovery Fund will be withheld.
Furthermore, the executive should promote the newly established conditionality mechanism which is supposed to protect the EU financial interests against the risks associated with the shortcomings of the rule of law.
Undoubtedly, all this will not work without the support of the public from the member states.
In short, the EU must allow money – its most powerful argument – to speak out, as all more diplomatic means have failed.
The latest escalation in Warsaw’s conflict with the EU could be Kaczynski’s swan song of power.
His parliamentary majority is crumbling, and the return of Donald Tusk – his old political enemy – to Poland evokes unpleasant memories.
For Kaczynski, this is a race against time. By tightening the autocratic screws, he wants to secure the power before it leaves.
But another, after Hungary, the autocracy strengthened by large EU funds would pave the way for the self-destruction of the European project.
This is the moment of truth when both the EU and Poland need a very strong political signal that crossing the 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 “EU protection against major corruption. “The rule of law mechanism and Poland.”