July was a very hot month in the escalating conflict between the European Union and Poland over the rule of law.
In just one week, the Court of Justice of the European Union (CJEU) and the Polish Constitutional Tribunal traded blows, as the CJEU sought to halt the activities of the Disciplinary Chamber of another top Polish judicial body - the Supreme Court - on the grounds that the chamber is not independent and being used by PiS, the ruling party, to attack and intimidate judges.
Firing back, the Polish Constitutional Tribunal - a court fully subservient to PiS - ruled that interim orders from the CJEU with regards to the judiciary were incompatible with Poland’s constitution. These events have pushed the long-running skirmish between EU institutions and the Polish government into a new phase.
The struggle for the independence of the judiciary and the rule of law in Poland is also increasingly going beyond Brussels and Warsaw.
The European Court of Human Rights (ECtHR), another vital European tribunal that is part of the Council of Europe’s human rights system, has added its voice to the conversation. In a ruling last month, the ECtHR found that the Disciplinary Chamber lacks the property of a lawful tribunal established by law - and this violates the right to a fair trial.
Meanwhile, the Irish Supreme Court has joined its peers in the Netherlands and Germany, asking the CJEU to examine whether the European Arrest Warrants issued by Poland can be executed given the state of the judiciary there.
More clouds are gathering on the horizon. The CJEU and ECtHR are both set to resolve multiple cases related to various aspects of backsliding of the rule of law in Poland in the coming months.
"The struggle for the independence of the judiciary and the rule of law in Poland is also increasingly going beyond Brussels and Warsaw"
At the same time, the Polish government has vowed to defy the CJEU and the country’s Prime Minister Morawiecki has requested the Constitutional Tribunal to proclaim that the principle of primacy of EU law, a core element of the EU’s legal order, does not apply in Poland.
If that was to happen, Poland would take one foot outside of the EU legal area and into uncharted, dangerous territory. While a “Polexit” isn’t likely, severe damage to EU law is possible and would take years to repair.
What should the EU, or specifically the European Commission as the guardian of treaties, do?
The Commission has been pursuing various actions towards Poland. Taking the country before the CJEU over infringement of EU law has been arguably the most successful avenue. The Article 7 TEU procedure initiated against Hungary and Poland is running in circles, stuck at the whims of the rotating EU presidencies.
The rule of law report published by the Commission last month and covering all 27 EU Member States calls out some of the direst issues in the country but lacks recommendations of any sort and it is unclear how the EU is going to use the report in practice.
The Commission needs to do more if the looming threats to the rule of Law in Poland - including the apparent move against the private TV station TVN, which is owned by American enterprise Discovery Networks - are to be averted.
It has some potent tools at its disposal. Beyond taking the country before the CJEU, the Commission could move to use the financial rule of law conditionality. The legal framework for this is in place, but the Commission is waiting for the CJEU to resolve legal challenges against the regulation from Poland and Hungary.
"Beyond the instruments in its rule of law toolbox, the EU also has means of action that in other policy areas. Most importantly, the European Commission is now assessing the Polish proposal for spending a massive package of €58bn under the covid-19 recovery plan"
This wait is unnecessary, and the Commission would do well to operationalise the conditionality. Unlike Hungary, where abuse of EU funds is widespread, Poland manages the money it gets from Brussels well. But the assault on the judiciary threatens the safety of these funds, as captured courts and intimidated judges will not protect EU money from abuse.
Beyond the instruments in its rule of law toolbox, the EU also has means of action that in other policy areas. Most importantly, the European Commission is now assessing the Polish proposal for spending a massive package of €58bn under the covid-19 recovery plan.
Poland wants that money very badly, and the Commission could hold out signing off Poland’s ambitious recovery ideas until the rule of law is restored. Of course, that could lead to Poland accusing the Commission of inaction and taking it before CJEU - the very same court Poland contests, ironically.
So far, the Commission is holding off the approval of this package and there’s some well-founded hope that concerns about the rule of law are what is keeping the Berlaymont from handing the money over to Poland.
All of these tools and means require one key component - determination and the political will to cast aside the notion of appeasement that helped Viktor Orbán and Jarosław Kaczyński get away with pretty much everything for so long.
The previous inaction from EU institutions and the other Member States have let small problems snowball into large issues, and now we’re seeing massive damage to the rule of law with little in the way of any domestic remedy available.
Only a decisive move, employing the multiple instruments the EU has at its disposal, can hopefully reverse the most egregious actions of the Polish authorities.