By Michael Meyer-Resende and Jakub Jaraczewski, The Euobserver
Berlin - Observers of the Polish government's approach to law have become used to a lot of things. And still one could be surprised by the escalation that transpired last week.
Just when the EU had decided last year that a threat to the rule of law in a member state should result in the suspension of EU funding to that member state, the government and its highest court declared war on the EU's legal order.
It is as if the Polish government is begging the EU to stop transferring funds.
What happened? Right after the ruling party won the first election in 2015, it staffed the Constitutional Tribunal with judges that support its line. The European Court of Human Rights in Strasbourg already ruled that these new judges were not lawfully appointed, but the government ignores the judgment.
Ever since that attack on the country's highest court, Poland's lawyers have been fighting a battle to preserve the independence of the other courts.
It is not going well. The government has been attacking judges and other courts through a newly created Disciplinary Chamber at the Supreme Court that can sanction judges not only for their behaviour but also for the judgments they pass.
Last year, the European Court of Justice in Luxembourg, the EU's top court, ruled that the Polish Disciplinary Chamber should suspend its activities until it could decide whether the Chamber is a lawful judicial body.
Last week the Disciplinary Court asked the unlawfully appointed judges at the Polish Constitutional Tribunal whether it has to respect the decision of the EU Court and the Tribunal said: 'no'.
Ruling pending
The Constitutional Tribunal also discussed another case last week, brought by the government, in which the government argues that EU law should not take precedence over national laws as is established legal doctrine in the EU for many decades. The tribunal's decision is expected in August.
The court's and the government's message from last week is that the Polish authorities can have whatever EU judgments they do not like annulled by their own court.
Furthermore, through disciplinary action they can also actively deter Polish judges from turning to the EU's court. In short, the Polish government and its top court are on course to decouple legal reasoning and legal practice from EU law.
Unsurprisingly, the government and the Polish courts have referred to the unfortunate and badly-argued decision of the German Constitutional Court last year, which considered a decision by the European Court of Justice to be beyond its legal remit.
Yet, the concern of Germany's highest court was that the EU Court did not sufficiently check the action of other EU branches of power.
The Polish situation is the exact reverse: the government is taking control of the courts.
Furthermore, no judge in Germany can be intimidated away from referring to the European Court of Justice by a threat of disciplinary action. Neither can they be prosecuted over the content of their rulings where they find the government breaking the law while distributing money from EU funds.
Red flag for business
For businesses last week's decision raises a red flag: if they can no longer rely on Polish courts and administrators to impartially enforce European law, their investments are much less safe.
The European Commission and the other European member states have consistently been too late, and done too little, in addressing the authoritarian measures taken in Hungary and Poland.
The independent judges in these countries were largely left alone to protect the law and they keep losing.
The situation calls for an application of the rule of law mechanism, which is meant to protect EU finances from risks of breaches of the rule of law in the member states.
Recently, renowned legal scholars made a convincing case that the mechanism should be used against Hungary. There is a clear case for applying it to Poland too.
The two cases are not identical.
The Hungarian government has a documented dismal record of financial irregularities of EU funds. That is not the case in Poland. The emphasis of the case against Poland should lie on the outright destruction of judicial independence combined with a refusal to accept the supremacy of EU law.
The relevant EU regulation indicates that the "endangering of judicial independence" is a breach of the rule of law. In Poland, the situation is well beyond endangering. Judicial independence has been systematically compromised as found in decisions of European courts that keep being ignored.
For lawyers last week's decision as well as the government's arguments in the additional case were astounding, given that they seemed designed to fulfil the criteria of the rule of law regulation.
The regulation centres on the idea that member sate institutions implement EU law in good faith and have sufficient checks and balances, namely independent courts, to check any critical cases.
The Polish judgment says: we do not respect that European law has precedence and we do not care what European courts say about our checks and balances. Authorities with that approach are not functioning properly as partners in spending EU funds.
Imagine a bank's business partner who clearly announced that he does not respect the contractual arrangements. Any bank clerk transferring more funds to that partner would be accused of gross negligence. The case in Poland is no different.
Stop pretending
The European Commission has given the Polish authorities a deadline to comply with the European court order, but the problem is well beyond one case.
As the European Court of Justice noted in a recent decision, the measures amount to "a structural breakdown which no longer makes it possible either to preserve the appearance of independence and impartiality of justice".
The commission should act now and apply the rule of law regulation by notifying the Polish government of its systematic concerns – the first step in the process. It needs to stop pretending that the problem is contained.
Authors
- Michael Meyer-Resende is the executive director of Democracy Reporting International (DRI), a non-partisan NGO in Berlin that supports political participation.
- Jakub Jaraczewski is the research co-ordinator for rule of law questions at DRI.
