PARIS — The European Union has a last chance in the next few weeks to stop Poland from emasculating its justice system by forcing dozens of Supreme Court judges into early retirement and packing the courts with government supporters. It must not blink.
This is not just about preserving the rule of law in the largest of the ex-communist member countries that joined the EU in 2004, important though that is. Above all, it is about defending Europe’s identity as a community built on shared liberal values.
Forget worries about exacerbating an East-West rift or splitting the bloc just when it needs unity to deal with Donald Trump, Vladimir Putin and Theresa May. If Polish strongman Jarosław Kaczyński is allowed to get away with replacing an independent judiciary with judges hand-picked for political loyalty, the EU’s claims to be a democratic watchdog and not just a glorified free-trade area will look hollow.
If ever there was a systemic threat to the rule of law, this is it.
“The Polish case is a test whether it is possible to create a Soviet-style justice system, where the control of courts, prosecutors and judges lies with the executive and a single party, in an EU member state,” Piotr Buras of the Stefan Batory Foundation, a Polish civil society organization, and Gerald Knaus of the European Stability Initiative think tank wrIte in a joint paper. “It remains to be seen whether this can be corrected before it fatally undermines the idea of the EU as a community based on law and common values,” they add.
The PiS government claims to be rooting out the communist past, but this is baloney.
The crisis has been brewing since Kaczyński’s conservative nationalist Law and Justice (PiS) party won an absolute majority of parliamentary seats in 2015 and set about removing checks and balances and subjugating independent institutions. It has come to a head because the purge of judges is about to reach the point of no return.
Kaczyński’s attacks on the rule of law began with a frontal assault on the Constitutional Tribunal and has spread across the justice system. Under pressure from Brussels, the Polish authorities have made only cosmetic concessions while stringing out talks to buy time.
Barring a last-minute intervention by EU ministers or the European Court of Justice, the government will go ahead with the enforced early retirement of up to 40 percent of the Supreme Court on July 3 under a law that entered into force in April. Among those whose necks are on the block is Małgorzata Gersdorf, the first president of the Supreme Court, whose eviction in the middle of a six-year term would violate the Polish constitution. Some 70 out of 120 Supreme Court justices would then be new appointees.
The PiS government claims to be rooting out the communist past, but this is baloney. The vast majority of judges were appointed long after the fall of communism in 1989. Four-fifths of Supreme Court justices were dismissed in 1990. The average age of judges in 2017 was 44.
A damning comparison of Kaczyński’s purge with the Soviet legal system was drawn by the Venice Commission of the Council of Europe, a staid intergovernmental human rights watchdog to which Poland agreed to have its justice reforms referred in a step to appease critics.
“In one respect the proposed system is even worse than its Soviet predecessor,” the commission said in a December opinion, citing an “extraordinary control” provision allowing the general prosecutor or a group of members of parliament to order a review of any final Supreme Court judgment made over the last 20 years. This upends the principle of legal certainty.
The crucial decisions now lie in Brussels and the major EU capitals. The European Commission last year triggered the first stage of the so-called Article 7 disciplinary procedure that could ultimately lead to Poland losing its voting rights in the European Council, if the other 27 member countries agreed unanimously.
Hungary’s Viktor Orbán, a fellow Central European autocrat, has vowed to shield Warsaw from that ultimate sanction, but EU governments can step up pressure on Kaczyński — without going as far as the so-called nuclear option — by formally determining by a four-fifths majority that there is a clear risk of a breach of EU values. They must do so this month.
In parallel, the Commission has started so-called infringement proceedings against Poland before the ECJ over its law on the ordinary courts. Now it must go further to try to stop a judicial coup.
The Commission should use its power to seek an interim order from the European Court of Justice — the equivalent of an emergency injunction, which would freeze the Polish Supreme Court law and block the forced retirement of judges pending a ruling on whether the law violates EU norms.
The Commission urgently needs the explicit backing of the main member countries to do so. Warsaw is the biggest net recipient of EU budget funds, and Berlin and Paris have strongly supported a Commission proposal to tie future structural assistance to respect for the rule of law. But that would not kick in before 2021, by which time the entire Polish justice system will have been captured.
Because of its own history, it’s hard for Germany to read the riot act to the Poles over the rule of law. It would gift Kaczyński a chance to turn a principled dispute over judicial independence into a political battle and accuse Berlin of “bullying.” Chancellor Angela Merkel has wisely let the Commission take the lead so far, lending discreet support to Vice President Frans Timmermans, the Dutch social democrat who holds the toxic Polish file in Brussels. He needs her public support now.
The danger is that member countries — anxious to avoid another conflict amid fraught Brexit negotiations, a looming trade war with the United States and poisonous relations with Russia, not to mention a new battle on the future EU budget and a populist takeover in Italy — will seek to bury the hatchet with Poland in return for minimal concessions.
Commission officials say some progress has been made, though it is not yet sufficient. Secret back-channel talks between Martin Selmayr, Commission President Jean-Claude Juncker’s powerful fixer, and Adam Bielan, a senior Kaczyński aide, have fueled suspicion that a fudge may be in the works.
Going soft on Poland would betray the Union’s values and confirm the Russians, Chinese and, yes, the Trump administration, in their suspicion that Europe is spineless.
After all, the EU didn’t stand up to Orbán when he attacked media freedom, judicial independence and the neutrality of the civil service because it believed, naively, that the Hungarian strongman could be moderated within the center-right European People’s Party. Instead, he has been emboldened and positioned himself as the standard bearer of an illiberal Christian majoritarian ideology in opposition to Brussels, drawing allies from Warsaw to Ljubljana.
The Commission and Western member countries have made other mistakes in their handling of the Central Europeans. Trying to impose refugee quotas on societies that have been sheltered from mass immigration for 40 years was one such blunder, and Brussels is busy watering down initial proposals in (so far fruitless) efforts to clear the impasse.
But on the rule of law, the EU has no alternative but to hold the line. Going soft on Poland would betray the Union’s values and confirm the Russians, Chinese and, yes, the Trump administration, in their suspicion that Europe is spineless, and easily divided and defeated.