Poland’s challenge to the European rule of law

Why the recent CC ruling is just the tip of the iceberg

Amidst the incessant flow of news and updates on the COVID-19 pandemic and the US presidential elections, that are definitely set up to be among the most defining events of the decade, in the past few weeks yet another situation of socio-political turmoil has surged to the forefront of European and international political attention: Poland.

The country is currently days into movements of civil unrest, with protests and mass demonstrations flooding the streets of the main cities and gaining the attention of news outlets all over the world.

And as for every protest that suddenly gains such a large scale this fast, the overarching cause can never be pinpointed to a single event: rather, Poland has had an array of intertwined socio-political tensions boiling under the surface for too long, that only needed a triggering event to erupt.

In this case, the latter was the Polish Constitutional Court’s ruling issued on October 22nd that officially outlawed abortion, even in case of severe foetal defects or life-threatening conditions. Such a decision came as a shock to most of the liberal Western countries; however, a closer analysis of the events of the past years can demonstrate how Poland’s ruling party has longtime been reinforcing its iron grip on the Constitutional Court and on the Polish judicial system as a whole, subduedly using it as its longa manus to advance and protect its political interests at large (and religious ones too, seen its firmly Catholic matrix). The new abortion ban is of course a prime example of that, but it’s just the tip of the iceberg.

Since 2015, Poland has been governed by the conservative right-wing Law and Justice party (Prawo i Sprawiedliwość, or PiS), led by Jarosław Kaczyński. During its first legislature (2015-19), the PiS was holding an absolute majority in both chambers of the Polish Parliament, the Sejm (lower house) and the Senate. This enabled it to pass three major reforms of the country’s judiciary: a reform of the ordinary courts, a reform of the National Judicial Council and, finally, one of the Supreme Court. They were all passed hastily one after the other, just in the 6 months between July and December 2017, in a sudden forcing of the government’s hand on the whole judiciary. The gravest case was that of the Supreme Court.

In fact, as per the new reform, the PiS declared that the previous appointments of Supreme Court justices carried out by the former incumbent Civic Platform party were unconstitutional. Consequently, all current justices would have to step down immediately, unless they retained the approval of the President and Minister of Justice. The latter also gained the power to shorten the period of service of Supreme Court justices at his will, by lowering mandatory retirement ages (from 70 to 65) and even being able to make them different for male and female judges. Finally, the reform put on the table a constitutional amendment to give the President the ultimate say on the appointment of any new judges. The result was a major, violent blow to the principles of independence of the judiciary and rule of law – two of the main legal pillars the European Union itself rests on.

As a consequence, the Polish question immediately raised red flags at the European Commission, with the government being put under accusations of grave breaches of the rule of law principle, compromise of judicial independence and insertion of an unacceptable level of political interference in the Polish judicial system. After having launched a formal rule-of-law assessment process to determine the extent and seriousness of the perpetrated breach, in December 2017 the Commission issued a recommendation referring the Polish case to the European Court of Justice for “grave breach of EU law”. This triggered yet another series of consequences within the European institutions, with both the Commission and the ECJ being set into motion.

Firstly, the above recommendation was the basis for the EC to trigger against Poland, for the first time, Article 7 of the TEU, whereby a “persistent breach of the EU’s founding values” by a Member State can be sanctioned with the suspension of the MS’s voting rights in the Council of Ministers. However, the one obstacle to the application of this threat was that, according to Article 7, the decision to suspend a MS from the Council requires a unanimous vote from the other MS; and it was Viktor Orbán’s Hungary – notably close to Poland in terms of political orientation and usual mutual support between the leaders in the context of the European institutions – who put forward its veto. Hence, as of today the question of the standing of both countries in the Council (since the Orbán government received itself the same Article 7 treatment in 2018) is a source of increasing tension and instability, with the judicial proceedings and the disputes between the governments and the EC still ongoing.

Secondly, the ECJ received the case deferral from the EC, which was also accompanied by additional formal requests of investigation lodged by the Polish Supreme Court itself in 2018. The final decision arrived only in April 2020 with the ruling Commission v. Poland, which reiterated that the state of Poland "had failed to fulfil its obligations under EU law". The result was the imposition of hefty monetary fines and, most importantly, the suspension of the Disciplinary Chamber of the Supreme Court – in theory charged with supervising and sanctioning the conduct of the judges of the SC, and now identified as the main pawn used by the Polish government to legitimise its aforementioned reforms. However, in a shocking move, the Disciplinary Chamber, always backed by the Polish government, de facto ignored the suspension ruling and continued to operate.

It should now be clear to see that the dire situation Poland now finds itself in is not caused by a single triggering event that some may identify solely with the recent abortion ban, but rather by years and years of continued escalations, at both domestic and European level. In fact, between a judicial system de facto held in the fist of a right-wing, ultra-conservative Catholic ruling party, and the grave, continued breaches of the rule of law and independence of the judiciary perpetrated by it, and the dangerous instability the country is bringing to the European Commission and Council, it is undeniable that the country of Poland has entered a seemingly incurable conflict with the European institutions and everything they stand for.