“The rule of law means that law and justice are upheld by an independent judiciary. The judgments of the European Court of Justice have to be respected by all. To undermine them, or to undermine the independence of national courts, is to strip citizens of their fundamental rights. The rule of law is not optional in the European Union. It is a must.” The words of Jean-Claude Juncker, president of the European Commission, with which, in so much as they restate the importance of the rule of law, few would disagree. Where there is a dispute, however, is whether the rule of law is under threat in Poland.
On Sunday, the eve of an expected visit to Warsaw, Frans Timmermans, First Vice-President of the European Commission, was accused by a senior aide to the Polish president of being “interested in escalating” the rule of law dispute between Poland and the EU Commission. According to the spokesman, Andrzej Dera, as quoted by public broadcaster Polish Radio, Timmermans is trying to use the dispute with Poland “to build his position in Europe”. Timmermans had said on Twitter last week that he would visit Warsaw on Monday to discuss the rule of law in Poland with the prime minister, Mateusz Morawiecki.
This long running dispute, triggered by changes made to the composition and operation of Poland’s constitutional tribunal and to the appointment of and tenure of judges in the supreme and lower courts, lead to the EU Commission in December last year taking the unprecedented step of triggering article 7 of the EU Treaty. This move, in effect notice by the EU Commission that it wishes EU member states to declare that the rule of law is under threat in Poland, could potentially lead to sanctions being taken against Poland by the EU, although Hungary, for one, has said it will veto any such move.
Last week, Poland’s foreign minister, Jacek Czaputowicz, said that Poland would defend its right to reform its justice system. Responding to news that the European Union’s executive has requested that the EU Council holds a formal hearing focusing on concerns that the Polish government has eroded the rule of law in Poland, Czaputowicz said ”we will emphasise Poland’s right to carry out reforms and that these are compliant with EU standards.” He had previously said that there was little room for further compromise, that the EU Commission’s intervention in Poland’s judiciary had gone too far, and that the row over Poland’s justice system “is about how much the European Commission is allowed to interfere in the internal affairs of other countries”.
Ryszard Czarnecki, a MEP for the ruling Law and Justice (PiS) party, told public broadcaster Polish Radio on Thursday that there was a disagreement within the EU Commission over the Article 7 procedure against Warsaw. According to him, a former vice President of the European parliament, Jean-Claude Juncker and Secretary-General Martin Selmayr, wish to end the dispute with Poland as soon as possible, while Timmermans wants the procedure to go on. After meeting Timmermans in Warsaw on Monday, Morawiecki said he had given him a “list of various changes that have taken place.” “I am pleased that … we are trying to arrive at some agreement, at the same time bearing in mind the necessity for reform of the judiciary”.
Thus, the spat continues. On the one hand the EU which seeks to defend the rule of law against what it sees as a serious threat to EU values, with the threat of unprecedented sanctions under the Article 7 procedure, no doubt pour encourager les autres; on the other the Polish government which fails, disingenuously at times one might think, to understand why the much-needed judicial reform has met with such condemnation. Of course, one man’s lurch towards tyranny is another man’s attack on his amour propre, and no amour is more propre than this one, especially given the proposal that future EU budget support could financially penalise countries that are judged to have breached EU principles on the rule of law.
Be that as it may, Poland’s judicial system does need reform, largely in the area of better timetabling to enable cases to be heard, and decisions reached, more quickly. If there are corrupt judges, by all means remove them, but one of the government’s justifications that the judiciary is dominated by Communist era judges who must be removed wholesale, seems less likely, given that over a quarter of a century has passed since the Communist system was overthrown, and most of those judges must by now have retired. Besides, some of the other reforms appear more politically motivated than simply genuine attempts at improving the system.
But perhaps there is a simpler explanation. In an environment where for many years the rule of law and judicial independence were little more than a sham, it takes time to adjust, and to resist the temptation to see electoral success as justification for accruing as much power as possible, stoking up supposed grievances along the way. Perhaps it’s all part of the period of adjustment to a fully-ledged, constitutionally robust, parliamentary democracy. There again, perhaps not. In