Poland launches a fresh attack on judges — and there’s little the EU can do about it

In December, the Venice Commission, an advisory body of independent legal experts to the Council of Europe, published its opinion about under the Polish government’s proposals. “The participation of judges in the administration of justice is further reduced: bodies of judicial self-governance are replaced, in important matters, with the colleges composed of the court presidents appointed by the Minister of Justice,” it said. “New disciplinary offenses are introduced and the influence of the Minister of Justice on disciplinary proceedings is increased further.”

This move comes after four years of efforts by PiS to tighten its grip on the courts and remove judges from the Supreme Court that it finds to be politically objectionable and replace them with what critics claim are political appointments.

The reforms almost certainly breach EU legal requirements that must be met by all member states.

It also came on the same day the Polish Supreme Court ruled that verdicts made by newly appointed judges — thought to be political appointees — could be questioned. It also ruled that the disciplinary chamber — a body set up by the government to punish judges — did not meet the EU’s requirements of judicial independence, and are therefore not legitimate courts. The government disagrees.

“What could be happening in Poland is a dangerous situation, where there are two legal systems, both of which claim the other to be illegitimate,” says Agata Gostyńska-Jakubowska, a senior researcher at the Centre for European Reform, based in Brussels.

On Friday, Christian Wingand, a spokesman for the Commission, said that Brussels would “not hesitate to take the appropriate measures as necessary.”

Those measures would likely request the ECJ puts in place interim measures to prevent Poland’s disciplinary chamber from acting against judges until the ECJ has reached a decision on the legitimacy of Poland’s reforms. By coincidence, a request for exactly this reached the ECJ on Friday in relation to a separate legal issue the Commission had referred to the ECJ concerning Poland.

The problem for the EU is that it can only take very limited action against delinquent member states. Any serious sanctions for breaking the rules require unanimous condemnation from other member states — which anyone who follows EU politics knows is not going to happen any time soon.

In theory, Brussels could try to remove Poland’s voting rights within the EU by having member states vote on invoking Article 7 of the treaty of the European Union. But with so many other EU states eager to avoid European judges taking a closer look at their own affairs, that is also unlikely.

“The political reaction is stymied by the requirement of near unanimity to trigger serious consequences under Article 7, says Ronan McCrea, Professor of European Law at University College London.” And while the “Court of Justice is not so constrained and can order national courts to disapply national laws that conflict with EU law,” McCrea explains that the danger is “if a state, or national judges simply refuse to carry out EU court rulings, we are back in the political arena.”

The EU is in a tight spot here. If member states start undermining or not recognizing European law, there is not a great deal that the EU institutions can actually do about it.

Gostyńska-Jakubowska says in addition to the punitive measures currently being taken, the EU needs to better explain to European citizens why the deterioration of the rule of law is so dangerous. “We need not only sticks, but carrots. We need to explain to citizens in those countries why the rule of law matters.”