Poland and the battle for judicial independence Is the rule of law dying in an EU member state?

Executive Summary

On 15 July 2021, the European Court of Justice (ECJ) found that Polish judges have reason to fear consequences if they issue judgements that displease the government, as any judge can be the subject of arbitrary disciplinary investigations initiated by the Polish Minister of Justice. Judicial independence and the separation of powers – core pillars of any democracy – are undermined. For the first time ever, the ECJ ruled that “effective legal protection” is at risk in an EU member state. At the same time, Poland’s Minister of Justice openly mocks the ECJ. His government refuses to comply with its judgements, as does a captured Constitutional Court. This discussion with citizens was therefore centred around the questions: What can be done to save judicial independence? What might Denmark do to preserve free courts in an EU member state? 

 

Panelists

• Award-winning Polish lawyers Sylwia Gregorczyk-Abram & Michał Wawrykiewicz who founded the most effective civil society initiative – Free Courts - to oppose the subjugation of courts and defend judges. 

• Gerald Knaus, who is chairman of the European Stability Initiative (ESI), a think tank that has written many hard-hitting reports on the demise of the rule of law and ways to address it, also joined the discussion. 

 

Further guests:

• Iver Østervik, a Senior Adviser of the Norwegian Rafto Foundation for Human Rights focusing on the rule of law.

• John Dalhuisen, Senior Analyst at the European Stability Initiative working on the Polish rule of law crisis and the Council of Europe.

Policy Proposals

1) The EU needs to be more strategic in protecting the rule of law in Poland

• First, identify the causes of the rule of law crisis in Poland. It is political: a specific government, with a specific vision and too much accumulation of power in the hands of the Polish minister of justice Ziobro is the cause.

• Second, recognize that the EU has limited instruments to address the rule of law crisis and certain instruments cannot work because of the required majority in the EU Council: such as Article 7 procedure and the rule of law conditionality mechanism.

 

2) There are four tools to protect the rule of law in the EU

• Article 7 Procedure: First, to establish the “risk of a breach” six member states are enough to block this. Second, to establish a “breach” of the rule of law one member state can block it. It will therefore never happen and six member states are enough to bring the procedure to a halt. This tool is thus not effective.

• Rule of law conditionality mechanism requires a qualified majority: four member states (with 35 percent of the population) are thus enough to block any sanctions, making this tool uneffective. 

• EU Recovery Fund: By linking the respect of the rule of law to the recovery fund, the Commission has been able to hold back money from Poland and Hungary, for not implementing the ECJ judgements. This tool is more effective, since the Commission decides alone, without the Council. 

• Infringement procedure & Article 260 TFEU financial penalty: When an ECJ judgement is not implemented by a member state, the European Commission can go back to the ECJ and request a financial penalty under Article 260 TFEU. The size of the penalty can be determined by the ECJ depending on the gravity of the infringement. For violations of the rule of law (Article 19 TEU) the penalty could be as high as 1 percent of GDP. 

• Conclusion: The only effective tool the EU has to protect the rule of law is the recovery fund and financial penalties. Currently the Polish government is negotiating with the EU Commission to have access to the Recovery fund. This gives the Commission leverage it should use well to bring about the implementation of ECJ judgements (such as the judgement on 15 July 2021 on the disciplinary system). 

 

3) Don’t accept cosmetic changes like the law adopted by the Polish parliament of 26 May 

• None of the three conditions by the European Commission has been fulfilled by the new Law proposed by the Polish parliament on May 26. The conditions include:  

• 1- Liquidating the disciplinary chamber

• 2- Reforming the disciplinary system

• 3- Reinstating judges 

• The new law adopted by the Polish parliament on 26 May does not address the core problems. If the Commission accepts this document and releases the recovery funds, the Commission would lose its negotiation power without guaranteeing that the rule of law is protected. 

• Even if the Polish government “reinstates judges” they are not fully restored, but admitted to different departments and districts. The Polish government desperately needs access to the recovery fund before the elections in 2023. The risk is that once the money flows, the changes to the judiciary will be even more detrimental. The minister of Justice continues to hold power over the disciplinary chamber. 

 

4) Apply the same standards of EU competition law to rule of law protection

• If the European Commission would apply the same logic to the rule of law that it applies to EU competition law (where high fines are imposed with the goal of deterring further violations). 

• We don’t need new instruments, we just need to use the tool we have: financial sanctions. It’s a question of political will and strategy.

• Any time a violation of Article 19 TEU is established the ECJ should impose a massive fine (e.g. 1 percent of GDP fine). 

• The Danish Commissioner Vestager could play a leading role. Article 260 TFEU says that fines should be a deterrent. If the philosophy of the Danish Commissioner becomes the philosophy of the Commission and if the logic of competition law is applied to the rule of law, this could be a great tool. Member states that violate the rule of law should be fined as much as companies that violate EU competition law.  

• We cannot assume that all member states want to comply with ECJ judgement, we therefore need to strengthen our tools. 

 

5) Remaining threats of rule of law breakdown in Poland: Polish minister of justice 

• As long as the Polish justice minister does not accept ECJ judgements as legitimate, no compromise should be made regarding the EU recovery fund.

• The threat remains: Ziobro announced that he wants to change the whole common courts system and reappoint judges. The Minister would control all judges of the second instance courts. 

• The concentration of power in the hands of the Justice minister has to change. He is still prosecutor general, and has the power to appoint and dismiss the presidents of courts. 

 

7) Communicate in other EU states (in EU/EEA) that national interests are at stake

• Without no rule of law / judicial independence companies have no guarantees and protection. This affects trade and investment in the long term and can have detrimental effects on the EU as a whole. Corporate law is one example of the ramifications of the rule of law breakdown. 

• WIth no judicial independence the Polish constitutional tribunal can arbitrarily reinterpret international treaties. This destroys the legal foundation of cooperation between states. 

• The nature of the crisis needs to be framed not in purely legal terms. For instance: The EU is a unique structure of sovereign states with no central executive/enforcing power. These states come together to make laws together that are then applied through national institutions. States give up sovereignty but in reality they retain control because national institutions implement the common laws. This system is unique and it only works if countries are democratic and courts independent. If independent courts cannot implement these laws, whatever governments negotiate at the EU becomes meaningless. If courts are systematically under the control of the government of the day, then the EU legal order breaks down. Then the whole EU system collapses. 

• Destroying the rule of law = destroying the foundation of the EU. 

• Member states need to be convinced that the rule of law and judicial independence is our common struggle. 

• Destroying the rule of law = destroying the foundation of the EU. 

• Member states need to be convinced that the rule of law and judicial independence is our common struggle. 

 

Further reading: https://wolnesady.org/files/2000_days_of_Lawlessness_FreeCourts_Report.pdf