Poland’s assault on the judiciary
It was recently reported that the Higher National Court in Karlsruhe has suspended the execution of a European Arrest Warrant (EAW), issued against a German citizen, due to concerns about Poland’s judicial independence. Only a decade ago, this would have made for striking news. Yet the points raised by the German court – the recent changes to the Polish judiciary, the substantial concerns surrounding the system’s independence, and the risk that the defendant’s right to a fair trial, as recognised by the Article 47 of the EU Charter of Fundamental Rights, would not be respected – have become common elements in any discussion on EU affairs.
Indeed, said ruling is but the latest suggestion that Poland’s descent towards quasi-authoritarianism has only intensified in recent years. A quick glance at Annual report produced by Dariusz Mazur, of the Polish judicial association Themis, makes for alarming reading. February 2020 saw the introduction of the so-called ‘muzzle law’, which has created increased the government’s grip over the judiciary, forced judges to disclose their membership of judicial associations, and created a wide range of disciplinary offences for judges, which face an increased risk of expulsion from the profession. The National Council of the Judiciary, a body meant to ‘safeguard the independence of the judiciary’ and of its members, has played a fundamental role in undermining it, following the Justice Justice Minister’s striking admission that he had ‘personally’ selected its members. And more than 80 Polish judges, Mazur concludes, ‘are currently being harassed on disciplinary grounds for political reasons’.
Despite all of the above, 2020 has been ’Groundhog Day’ for the European Union. The rule of law conditionality mechanism, which was meant to link the Covid Recovery funds to Member States’ compliance with the rule of law, was rendered but a paper tiger by the European Council. In a move which Alberto Alemanno has deemed ‘legally questionable’, it gave in to Hungarian and Polish political pressure, enabling (and encouraging) the mechanism’s suspension until the CJEU hands down a ruling on its legality – a ruling which could take one and a half years.
What was increasingly clear a year ago, in other words, is now little more than a truism: the rule of law has become the Union’s Achilles’ heel. The European Commission, the guardian of the Treaties and the institution charged with protecting the Union’s general interest, cannot be relied on to protect the rule of law within its own borders. The Council, which is held hostage by the Orbán-Morawiecki alliance, and which has shown itself unable (or, some have argued, unwilling) to step in. In light of this, the time has come for a coalition of Member States to step in.
‘Systemic’ infringement proceedings
How can the current institutional impasse be broken? The orthodox view is that the prospect is too dauting. Political instruments, it is claimed, are too weak, while Article 7 TEU, the Union’s main legal instrument, has failed due to its unanimity requirement. Any Treaty reform to provide an alternative mechanism, it is concluded, is unforeseeable in the present political context.
In fact, a recent paper by Kim Scheppele, Dimitry Kochenov and Barbara Grabowska-Moroz provides an alternative pathway: a systematic use of Articles 258, 259 and 260 of the Treaty on the Functioning of the European Union (TFEU) to tackle violations of Article 2 TEU.
According to the authors, a creative use of Article 258 TFEU, which allows the Commission to bring proceedings for an infringement of EU law by a Member State, can overcome the mechanism’s current limitations. Through a more expansive conception of said provision, which challenges ‘systemic, persistent, and important’ violations of the values enshrined in Article 2 TEU [2], the perception that its scope is limited - only applying to one-off violations of regulations or directives - can be put aside.
Perhaps more interestingly, given the Commission’s reluctance to enforce Article 2 TEU, is the authors’ call for a more consistent use of Article 259, which holds that ‘[a] Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union.’ This approach is, in their own words, one of ‘militant democracy’, according to which national capitals can step in to fill the enforcement gap left by the Commission’s inaction.
In either case, the party bringing the claim would be able to rely on Article 260(2) TFEU, and invite the Court to ‘deduct fines from EU funds due to be received by the troubled Member State’. The risk, the authors conclude, would ‘provide additional incentives for systemic compliance’ – the very ‘incentives’ envisaged by those who called for a functioning conditionality mechanism –, thereby further strengthening Article 2 TEU’s de facto protection.
The importance of national action
This possibility of Article 259 being used is, in fact, what recent political developments point towards. In December, the Dutch Parliament passed a motion calling for its government to bring Poland before the CJEU for its systemic assault on judicial independence. At the same time, a coalition of five Member States – the Netherlands, Finland, Denmark, Sweden, and Belgium – appeared before the Court in the case of the case of Commission v Poland (C-791/19), arguing that the Polish government’s actions constituted a direct threat to the rule of law, and thus to the European Union’s very foundations.
The importance of taking such decisive action is twofold. On the one hand, Article 259 proceedings would allow the CJEU – the institution which has most consistently called out the Hungarian and Polish governments – to have a say on recent judicial and political developments in both Member States. On the other, and perhaps most importantly, it would allow the Court to have a say on the use of infringement proceedings in cases involving Article 2 TEU, paving the way for a more consistent legal approach by either the Commission or a coalition of Member States. Recognising the legal dimension of Article 2 (understanding, as Scheppele et al. do, that ‘EU values are law, after all’) is fundamental in ensuring an adequate response to Hungary and Poland’s authoritarian threats.
An existential risk
The suspension of an EAW due of rule of law concerns is more than a mere judicial anecdote: it points towards an existential threat to the European Union’s dangerously fragile legal order. The court’s ruling signals the weakness to two of the Union’s very pillars: the principles of mutual trust (Article 4(3) TEU) and of effective legal protection (Article 19 TEU). After all, if (the lack of) judicial independence of Poland imperils the legal rights of a criminal defendant, who is to say that those of a Spanish contractor, a Belgian exporter, or a German bank operating in Poland will not be similarly threatened? If a EAW cannot be executed, will a transnational contract, an economic transaction, or a contract for services suffer the same fate? The Karlsruhe court’s implicit recognition – that the rule of law in Poland is damaged beyond repair – threatens the very legal certainty on which EU law rests.
Only when it dawns on the European institutions that democratic backsliding is no secondary problem, but one which risks impacting every single legislative project governed by EU law – including the single market itself – will a proper response be afforded. Time, however, is ticking – and every day that Orbán’s and Morawiecki’s actions go unchallenged by the institutions, their threat to the Union’s legal edifice becomes more difficult to combat.
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