The Polish Dilemma

The unfolding of events in Poland is becoming ever more worrying. For any lawyer in the west (and many parts of the rest of the world too), the idea of a national judiciary subject to the executive’s wishes, where Supreme Court judges can be dismissed at the pleasure of the Minister of Justice, is contrary to basic standards of the rule of law. This is particularly true when the government’s intrusions are targeted at the Supreme Court, the very heart and soul of a country’s judiciary, where decisions on principle in every area of the law, from administrative to civil law, from labour to criminal law, are rendered for the benefit of the law’s integrity and coherence. To attack the Supreme Court is to attack the judiciary at its very essence.

Furthermore, when these actions are the follow-up to a prior attack on the Constitutional Court (successful so far), then the events in Poland are probably the most worrying, from the point of view of the values of democracy and the rule of law, which the EU has faced in its recent history.

We will know in a few weeks’ time if the Polish government’s attempts will succeed, but it looks as if they will. The chosen dates for this coup, in the midst of the summer and with thousands of citizens away on holiday, seems to confirm the government’s willingness to pull it off.

So far, all we hear from the EU is more and more about Article 7 TEU and the use of structural funds and other forms of EU aid to counter Poland’s attempts to curtail the rule of law. However, Article 7 TEU has way too many problems to be ever used, and tinkering with EU funds sounds too much like blackmail, enough to boomerang back on the Commission or the Council. Furthermore, the fact that the government’s attack is clearly targeted on one of the powers of the State, the judiciary, makes it particularly tricky for the EU to deal with. After all, in the same vein that the government should not meddle with the judiciary’s independence, why should the EU step in and defend a national judiciary, when it hardly has competences on the organisation of national judiciaries? When the Polish government argues that the EU has no competence to stick its nose into the Polish judiciary’s business, it has a point, at least from a jurisdictional perspective.

It is therefore time for the European judiciary to assume as well that it has a duty to react and to protect the rule of law. If a national judiciary comes under attack, the European judiciary must respond consequently. If the Commission and the Council do so as well, it’s all very well. But in the meantime, the European judiciary has a particularly strong mandate to uphold the rule of law and protect itself from the intrusions of the government of a Member State in the very heart and soul of a national judiciary.

First, it must be assumed that from the moment that the Polish Supreme Court becomes remodelled under the new laws, after the Minister of Justice’s instructions, the Polish judiciary, top-down, has lost its independence and its decisions cannot qualify as decisions issued by a court of law. Depriving the very apex of the judiciary, the Supreme Court, from its independence causes a downstream effect that deprives all inferior jurisdictions, subject as they are to the Supreme Court’s case-law, of their independence as well. This must be assumed by the EU and all Member States, but particularly by the Union’s courts and the Member State’s courts.

Second, the loss of the judiciary’s independence, as an essential requirement attached to the value of the rule of law, enshrined in Article 2 TEU, deprives national courts of their standing as courts of EU law under Article 19 TEU. Poland will have courts, but it will not have courts of law under the standards of EU law. Therefore, the judgments rendered by its courts will be effective when solving claims raised by parties within the territory of Poland, but they will not be effective as judgments issued by national courts of law acting as courts of EU law.

As a result, Polish courts should not be deemed to comply with the requirements of Article 267 TFEU, inasmuch they will lack one of the essential requirements of any jurisdiction to make a preliminary reference: independence. The Court of Justice has been eager in the past to discard certain bodies as “jurisdictions” pursuant to Article 267 TFEU, on the grounds that they lacked independence. If a Member State’s judiciary loses its independence as a whole, it is reasonable to assume that the courts of that Member State have lost the ability to communicate with the Court of Justice.

This might sound extremely harsh and could eventually deprive rightful and very independent Polish judges with their last hope to retain their dignity as judges: the cooperation of EU courts by way of the preliminary reference. However, it is precisely for the sake of the dignity of the EU’s judiciary that it must defend itself from serious and intolerable power grabs from extremist movements in power. Otherwise, when the time comes to make difficult decisions… what authority will the Court of Justice have left to prove?

In Spain in the 1960’s there was an efficient administrative judiciary in charge of the judicial review of the regime’s administrative action. To the surprise of many, Spain was a pseudo-rule of law, despite being a dictatorship. Individuals and companies could expect to have a fair and independent judge if they ever dared to sue the government of Franco. Of course, it was all a farce, because it only worked with small cases. The judiciary was at the government’s will when dealing with the big stuff. For some, Spain was a “State under a formal rule of law”, with procedural guarantees and legal certainty for individuals and companies. When Spaniards look back and see how many learned constitutional lawyers praised Franco’s wits for managing to provide a “formal rule of law”, they feel a sense of shame and outrage towards those who contributed to justyify and thus preserve a system that was nothing else than a brutal military dictatorship.

On the day the Polish judiciary’s reform Act enters into force, if we simply look the other way and assume that the Polish judiciary is still the same thing it was the day before, we will all become collaborators. And a few decades into the future, when our children look back and read about the Polish power-grab that annihilated the independence of its judiciary, they will be ashamed and outraged to read about how the EU tried to play along, how the rest of national courts carried on recognizing Polish judgments under EU rules, and how the Court of Justice kept replying to the references coming from an organization that had been deprived of the dignity of a judiciary. The complacent lawyers of today will say: “oh well, the Polish judiciary is under a formal rule of law and its judges apply rules of law, so what can we do?” But our children will know, just as Spanish lawyers know today about their elders, that shameless collaboration has many dark faces, and that the moral price attached is way higher than the profits of complacency.