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If the E.U. doesn’t wake up to what’s happening with Poland, it may sleepwalk into self-destruction

The fight over whose courts are in control threatens the foundations of the European Union’s constitutional order

- July 16, 2021

Poland and the European Union are in a constitutional standoff, which may lead to the destruction of the E.U. as we know it. They are on a collision course over whether Poland has to comply with E.U. law, as interpreted by the Court of Justice of the European Union. If Poland prevails and the E.U. backs down, then the E.U.’s fundamental legal order will be undermined. So what happened?

Poland’s government has been eroding democracy

The current crisis came to head on July 15, when the Court of Justice of the European Union ruled that the Disciplinary Chamber — a body that has undermined judicial independence in Poland — was incompatible with E.U. law. A day earlier, the same court ruled that disciplinary regulations had to be immediately suspended. Soon after, the Polish Constitutional Tribunal ruled that any such orders are incompatible with the Polish constitution, and could thus be ignored.

But this controversy was just the latest act in a drama of democratic erosion that has unfolded since Poland’s controversial Law and Justice party, known by its initials in Polish as PiS, came to office in 2015. The ruling party has targeted judges. In a slew of intensely criticized changes, courts were subordinated to the governing party, new judges were named, and judicial autonomy was enfeebled.

The Disciplinary Chamber is at the heart of the current controversy. The chamber was established in late 2018 by the PiS government to ferret out malfeasance among judges. It is formally independent of the Supreme Court and staffed by loyalists of the ambitious minister of justice, Zbigniew Ziobro, who has been criticized for suborning the rule of law and politicizing the judiciary. The chamber itself has occasionally shown flashes of autonomy, for example, refusing to investigate and prosecute three prominent cases. Nonetheless, it is seen as an effective tool that allows the government to discipline the judiciary.

A year after the chamber was established, in December 2019, the “muzzle law” (“ustawa kagancowa”) made it even easier to lift immunity from judges and initiate disciplinary proceedings against them. Critics charged that the Disciplinary Chamber could now investigate and punish any activity by judges. New grounds for prosecution included participation in public protests, appealing government decisions, and even criticizing the judiciary. New penalties ranged from denying retirement benefits to removal from office for “hampering the functioning of justice” by questioning decisions.

The European Commission filed a complaint in early 2020 regarding the new disciplinary regime, asking that the European Court of Justice (ECJ) use temporary measures to suspend the chamber until a final judgment was issued. The commission charged that the chamber’s independence was questionable and its prosecutorial discretion too broad. In April 2020, the ECJ agreed, and Poland had to comply or face steep fines. The July 14-15 rulings stem from the subsequent criticisms and replies between Poland and the commission. Several other cases critical of Polish judicial reforms have been referred by the commission. So far, Poland has simply ignored the rulings.

So why does this dispute matter?

The immediate consequence of these conflicting rulings, and Poland’s unwillingness to accept ECJ rulings, is a fundamental disagreement over whose laws count. In effect, the Constitutional Tribunal ruled that Polish court rulings trump E.U. law, contrary to the precedence principle, a basic principle of European law, which guarantees the supremacy of E.U. law over national laws when the two conflict.

Justice Minister Ziobro defended the Polish Constitutional Court ruling as a stand “against interference, usurpation and legal aggression by organs of the European Union.” However, the former Polish ombudsman for civil rights (removed from office at the behest of the Constitutional Tribunal), likened the recent move to a gradual “legal Polexit.” The Polish court ruling may end the mutual recognition of judgments, under which the courts of E.U. member states respect each other’s rulings. It certainly undermines the hierarchy that is at the heart of the E.U.’s legal order, under which national court decisions are supposed to be subordinated to the ECJ and its umbrella CJEU.

The E.U.’s authority is in danger of collapsing

The deeper question is whether the E.U. is sleepwalking into self-destruction. It claims to be a union of democratic states, but it has been consistently unwilling to confront the erosion of liberal democratic practices, institutions and norms in its member states. The Commission continually refers cases to the ECJ and has expressed “deep concern” at the Polish court’s ruling, as it has at other democratic breaches. Yet it seems unwilling to take action.

This is not the Commission’s first rodeo: The E.U. earlier responded to the dismantling of Hungarian democracy with an insouciance that bordered on complicity. The E.U. tolerated the ruling Hungarian party’s authoritarianism because the dominant EPP faction in the European Parliament needed the party’s votes. Just last November, Poland and Hungary threatened to veto the E.U.’s budget for 2021-27 and its pandemic recovery fund after a proposal to make E.U. fiscal transfers conditional on meeting basic rule of law standards. Because the decision had to be agreed unanimously by all member states, the E.U. backed down. Both the Hungarian and Polish governments boasted that they had protected national sovereignty (and their subsidies from the E.U.).

On the eve of the rulings, European Commission President Ursula von der Leyen met with Polish Prime Minister Mateusz Morawiecki and tweeted that they had a “good exchange,” listing issues where “rule of law” came last. For his part, Morawiecki said he brought up the rule of law in his meeting with von der Leyen as a minor annoyance, a “a buzzing wasp in the room, which accidentally flew into the room and has to be let out.” Neither has addressed the consequences of the rulings.

A fight over legal precedence may seem abstruse and irrelevant to those who aren’t experts in E.U. law. But it threatens the foundations of the rule of law in the European Union, and the E.U.’s claims to be a democratic order.

Anna Grzymala-Busse is the Michelle and Kevin Douglas professor of international studies in the department of political science at Stanford University.