On 2 July 2018, the European Commission (EC) launched fresh infringement proceedings against Poland regarding a new law aimed at, the EC says, ‘undermining judicial independence’.
The law lowers the retirement age of Supreme Court judges from 70 to 65 and will see approximately one-third of justices forced to leave. The implications are profound, says Carmen Pombo, Co-Chair of the IBA’s Rule of Law Forum. ‘The independence of the judiciary is a crucial element of the rule of law, a central value of the European Union,’ she says. ‘If one Member State fails to uphold the rule of law, this could have repercussions for the EU as a whole.’
The proceedings are the latest tactical response by the EU to a series of legislative and constitutional changes that have taken place in Poland over the last few years since the current government came to power. The EU views the changes as threatening the rule of law. In a first for the EC, in December 2017, it instigated a procedure under Article 7 of the Treaty on European Union, which can be triggered when there has been a violation by a Member State of one of the core values of the EU. Article 7 is termed ‘the nuclear option’ as it could result in the suspension of Poland’s voting rights – though there is no mechanism for expelling a member.
‘‘The independence of the judiciary is a crucial element of the rule of law. If one Member State fails to uphold the rule of law this could have repercussions for the EU as a whole
Co-Chair, IBA Rule of Law Forum
The EC and Poland are currently in dialogue. In recent weeks, and in another first, the European Council held a hearing during which Member States were able to engage directly with the Polish government and ask questions regarding these new national laws.
Professor Laurent Pech, Professor of European Law at Middlesex University estimates that the ruling party has introduced 15 pieces of legislation over the past 14 months relating to the courts. ‘This is a step-by-step capture of Poland’s institutions,’ he says. ‘It started by making changes to the constitutional court and how members are appointed so as to de facto capture the court notwithstanding what the Constitution requires, and transform it as a government enabler.' This latest law on the retirement of Supreme Court justices means that, Pech argues, 'it will have control over that court too. The Supreme Court is the guardian of elections. This is incredibly serious territory for a future Polish democracy.’
In May, the EC put forward another proposal to tackle these problems. A new mechanism enables the EU to make respect for the rule of law a precondition for receiving EU funding. If passed by the European Parliament, this will mean that when the next EU budgets are set in 2021, the EC would be in a position to deny funding to Poland on the grounds that the new laws passed there do not respect the rule of law. Money has great influence in the EU and this could certainly be a very powerful tool against Poland.
‘Parties opposed to the PiS can point to the mechanism and say that supporting the PiS and its new laws will mean funding will be withdrawn,’ says Aleks Szczerbiak, Professor of Politics and Contemporary European Studies at Sussex University. However, Pech is sceptical. ‘It may be too late to have any effect,’ he says. ‘2021 is a long way off. And whenever the EU doesn’t want to tackle something head-on, like the dire situation in Poland, they come up with a new mechanism.’
Not everyone sees what’s happening in Poland in alarmist terms. ‘The Polish government argues that it has every right to introduce these laws,’ says Szczerbiak. ‘It argues that the legal establishment has become completely entrenched and needs reform, that it is a closed caste which is corrupt and self-serving.’ The message in the Polish media is that the judiciary and other institutions in Poland are still governed by legacies of the pre-communist era: if not the personnel themselves, then by, in Szczerbiak’s words, ‘an elite which has reproduced itself.’
Gianluca Esposito, Executive Secretary to the Group of States against Corruption (GRECO), part of the Council of Europe, disagrees that these laws are the solution. ‘If there is a problem within the judiciary then we do not dispute the Government’s right to reform it. However, we shouldn’t “throw out the baby with the bathwater”: the laws in Poland are fundamentally threatening the separation of powers, upsetting the delicate balance between the executive and the judiciary, and weakening the independence of the judiciary.’
A separate case recently heard in the European Court of Justice (CJEU) could have an influence. It involves the extradition of a suspected drugs trafficker, Artur Celmer, from Ireland to Poland under the European Arrest Warrant. The Irish High Court refused the extradition on the grounds that the rule of law in Poland had been ‘systematically damaged’, and referred the matter to the CJEU. The European court could rule – in its judgment expected over the summer – that Poland is contravening EU standards.
Polly Botsford is a freelance journalist and can be contacted at firstname.lastname@example.org