On Monday 12 October 2020 the rule of law in Poland was engaged or discussed, directly or indirectly, in many places across Europe.

Warsaw

First, most sadly and most consequentially, in Warsaw. Deep into the evening Judge Beata Morawiec, chairperson of Themis, a prominent organisation of Polish independent judges, was stripped of her immunity, suspended, and confronted with a 50% pay cut in front of the Supreme Court’s Disciplinary Chamber – a body that the European Court of Justice has clearly held is not, from the viewpoint of Union law, a proper court.

The crudest of political interferences and violations of judicial independence, that had long been a threat, now materialised despite international pressure. And it happened in full view of anyone who cared to take their “let’s dialogue and discuss” glasses off for a moment of clear-eyed analysis.

PiS and friends do not do subtle. Those in Poland who work to uphold Polish and European rule of law Polish rule of law pay a heavy price. This is real. This is Europe’s here and now. No lengthy comparative reports needed.

Brussels via Strasbourg to Luxembourg

But the rule of law was also discussed elsewhere, hopefully slowly increasing pressure on what can only be described as Polish autocratic radicals in power doing damage. In Brussels, where the first round of the trialogue (a legislative discussion between the Council, the European Parliament, and the Commission) took place about a pending piece of legislation about linking disbursement of EU cash to rule of law compliance.

In Strasbourg, where the Council of Europe’s Venice Commission issued a statement to express concern over the continuity of the office of the Polish Ombudsman – indeed a beacon for protecting Polish and European rule of law standards.

And, finally, in Luxembourg, where the European Court of Justice’s Grand Chamber heard two cases (here and here) about how imploding judicial independence in Poland relates to mutual recognition and fair trial.

Reporting from the Court of Justice

I was in Luxembourg. Again (see here and here for previous attendances of rule of law cases involving Poland). And I came away cautiously optimistic.

Not because the Polish government threw in its own windows with even greater determination than usual. Even the Commission, Guardian of our Treaties, did not put me off after it paradoxically seemed to go out of its way to avoid any positive outcome for (a) judicial independence in Poland, (b) workability for judges confronted with pressure on it elsewhere and (c) fair trial for suspects.

What stuck with me was the way ECJ judges questioned the Commission and other parties about how its crucial LM/Celmer case (see here) could be “clarified”. It provided some hope, at least, for a silver lining for a grim day for the Polish rule of law.

Amsterdam in Luxembourg

Under discussion in Luxembourg were references for a preliminary ruling from the Court in Amsterdam. It asked the Luxembourg Court how to deal with surrender and execution requests issued by Polish judicial authorities in the light of the well-documented pressure on judicial independence there, particularly since the Muzzle Law took effect on 14 February 2020 (see here and here for some background on the Amsterdam’s court thinking in the run-up to these questions).

The court in Amsterdam deals with all European Arrest Warrant cases in Holland. Over one third relates to Polish citizens, amounting to some 250 to 300 individuals per year. These are considerable numbers. It means that it is not unlikely it is one of the court in Europe with the most direct experience with how increasing judicial non-independence in Poland looks and feels like in terms of daily dialogue among European colleagues – the bread and butter of mutual recognition/trust.

Apart from lawyers for both suspects involved, the (independent) Dutch prosecutor made his case. The Dutch, Belgian, Irish and Polish governments as well as the Commission also intervened. It made for three hours of high-intensity discussion about the very DNA of EU cooperation. About what considerations matter most in that respect. About how the clear and cold facts on the grounds in Poland need to be confronted and accommodated. And about whether, how, and to what extent that could or should be done without abandoning structural issues of fundamental rights protection and the system of Union legal remedies. A high stakes discussion, in short, even by the standards of a courtroom used to high stakes.

What did not happen

Let me describe first what did not happen. The Polish government did not take part in the discussion in any meaningful way, even if it concerned developments on its own territory. Not because it did not try. But because it once again placed itself outside of the discussion. Yes, it made the usual points. That there is no problem in Poland regarding judicial independence, and what is happening is a firmer anchoring of that European principle by installing real judges and removing others.

That what the Court of Justice ruled about the Disciplinary Chamber not being a court is incorrect, and, in any event, only applies to its task of disciplining judges. That the disciplinary cases resulting in the lifting of immunity of judges are not actually disciplinary cases, but rather conventional criminal cases applied to judges leading to the lifting of immunity, which just happens to be another task of the Disciplinary Chamber in the same composition. Because disciplining is not actually disciplining, the Court of Justice rulings do not apply (or so the Polish representative argued without growing a Pinocchio nose). Are you confused? I don’t blame you. It makes zero sense. It is 18 carat gaslighting for which there should be no place and no tolerance in a community of law. But as became evident yesterday, at the very same moment that the Polish government made these arguments in front of Europe’s highest court, the lob-sided reasoning had real-life effects for real judges. Like Beata Morawiec. And there are more such cases scheduled shortly, like the one of Igor Tuleya.

Enters the Polish government

The Polish representative Anna Dalkowska also extensively quoted from a recent ruling where an EAW transfer request by a Dutch court was denied by a Polish person serving in a position wherein the Union legal order one would expect a judge.

This person went on what can only reasonably be described as an extended rant about the Netherlands (see here). What hit home listening to the intervention through the interpretation, however, was the characterisation of both Dutch judges and prosecutors as lacking independence. In doing so, the Polish representative did rattle a cage. But, tellingly, and in line with her strategic “savvy” demonstrated in earlier cases, it was the cage of the only person in the whole courtroom that she could have counted as a potential natural ally, the Dutch independent prosecutor.

The Dutch Prosecutor

After all, this prosecutor has a rather large interest in making sure Dutch society is not going to get stuck with 250 to 300 Polish or other EU citizens in case they can no longer be transferred to Poland under an EAW. Ignoring the fact that it had been quoted with clear approval, the prosecutor opted to reply to this aspect of the Polish representative’s intervention, remaining polite but also firm and clear.

He used a telling word to characterise the “judgment” that had been quoted: potsierlijk. This is quite strong in Dutch and could hardly sit more uneasily with mutual trust. Its meaning is a mixture of “ludicrous”, “completely bonkers”, and “pathetic”. Even those who are independent in the Netherlands can be direct. Perhaps because it was even personal.

Talking around, not with Poland

It was no coincidence, then, that none of the ECJ Grand Chamber judges had any questions for the Polish delegation. They have seen the Polish representative often by now and know that the parallel universe she verbalises needs to be confronted in other ways and in other places.

In another way, however, talking around her was a good summary of the day – and perhaps a signaling of a new stage in dealing with rule of law backsliding in Poland. Everyone knows there is a problem, a very large problem. The hearings therefore, took the form of an exchange of views (with the main object and subject physically present but substantively absent) on how to develop a route around it without disempowering those in Poland who represent standing up for our common rule of law.

Two central questions

What did happen in terms of that exchange of views can be summarised in two main points, which will likely become the two axes central to answering the questions of the Dutch court.

First, there was a general discussion about the place of a fundamental rights/fair trial exception in a mutual recognition-based instrument in a broader construct of Union law principles.

Second, there was a dialogue about how that fair trial exception, and how the Court in 2018 explained it in its LM/Celmer judgment, could be made (more) operational within the limits of these general limitations.

General observations

With regard to general observations, parties discussed the relationship between general political discussions about rule of law problems in a specific Member State conducted through Article 7 TEU proceedings, including against Poland (which are, of course, completely stagnant), and a specific legal instrument such as the Framework Decision on the European Arrest Warrant. Concern was expressed that if a national judge, deciding an individual case, would use general reasoning this could have a general effect, interfere with the Article 7 TEU proceedings, and even overtake it without that judge being able to grasp the impact. (An observer who was present thought to himself: that sounds like an excellent idea because at least somebody would be doing their job, attempting to apply the law, and someone else’s hand might be forced to finally face reality and act).

There was also the general point that mutual recognition should be the default, and that therefore transferring someone under an EAW should be the general practice. Not doing so should be an exception to be read and construed narrowly, even if it concerns giving effect to one of the rights in the Fundamental Rights Charter. (An observer who was present thought to himself: is the Charter not actually primary Union law, so that the secondary Union law of the Framework Decision in question or the general principle concerning mutual recognition developed by the Court of Justice should be read in the light of that Charter, rather than the (only) another way around?).

It was remarkable to hear both Belgium and Ireland, known as friends of the rule of law, take positions to defend the status quo. Both defended LM as good enough and a good balance struck. Both acknowledged the relevance of fundamental rights but particularly stressed other interests. Both, more specifically, made their preferences clear about where the point of gravity should lie in the trinity of (the EU Area of) Freedom, Security, and Justice.

A context-specific legal interpretation of judicial non-independence

One crucial general aspect that came through in the hearing, and that is likely to carry a lot of weight in deciding the case, is that from the viewpoint of Union law it is extremely problematic, and really the last resort effectively signalling a departure, to disqualify in a blanket way all judicial authorities in a Member State as no longer independent, even if only in the specific context of EAWs.

This is for the simple reason that a context-specific legal interpretation of judicial non-independence would unavoidably have general effects.

Such a conclusion, however substantively justified, would mean that if there are no longer independent courts in Poland able to apply Union law, this would have as a consequence that there would also not be any entities that could refer questions for a preliminary ruling to the Court of Justice.

For it to function, Union law in whatever area simply requires that there be real judges in Poland. Such a point needing to be made in a court of law underlines the gravity of the current situation. (An observer who was present thought to himself: that sounds like a real alarm bell for the Guardian of the Treaties, more precisely to all of its Commissioners, transcending politics and specific issue areas in rule of law discussions).

The LM test

The second element was about whether and how the “LM-test” could and should be applied in a context of generalised systemic problems with judicial independence in a Member State. It was, I felt, the most immediately consequential part of the hearing in terms of how the Court of Justice may decide this case. It was also the part where the Commission’s position was once again (see here) really and truly disappointing.

The LM-test, let us remember, is a 2-step test by which a national court is supposed to make a determination about whether it should apply an exception to the rule of mutual trust-based transfer in the case at hand.

The first step is to determine whether there is a general/systemic issue in a Member State, in this case with regard to judicial independence in Poland.

The second step is then a risk assessment of whether the person in front of the national judge would likely face consequences from these systematic problems, both given his or her individual circumstances or given the individual circumstances of the judicial authority (judge or prosecutor) that he will face in Poland.

There was no discussion about whether there is a general and systemic issue with judicial independence in Poland at the moment (pause here for a second, re-read the previous sentence, and think about it how we got here). The question is whether the second part of the test still makes sense in that case, what it should entail, who should do what, and who should carry the burden of proof.

The questions by the Amsterdam court clearly (and perhaps a little to overtly) implied that it, based on two years’ worth of experience with applying this test, does not see the point of carrying out part 2 of the test in case there is a general problem.

Systemic problems and individual risk

It is a waste of time. You cannot expect colleagues in Poland, or those masquerading as colleagues, to judge their own independence. In the current climate, you either get a dishonest or a hoping-against-the-odds answer. Systemic problems, therefore, equate individual risk. Answering question 1 is answering question 2. This is particularly so when the judicial take-over of PiS has deliberately started at the top, so that it now almost fully controls the hierarchy from the top down, including crucially by means of the capacity to discipline any judge in Poland – as we saw happening yesterday in Warsaw (An observer who was present though to himself: that position by the Amsterdam Court makes eminent sense. He felt strengthened by the more elaborate assessment by some specialist colleagues – see here and here).

The Commission’s position

Yet, this was not so evident to everyone in the courtroom, yesterday. I already mentioned the position of Belgium and Ireland. But it was particularly the Commission that defended the position that the current case law is good enough.

It argued that it had already repeatedly expressed its deep concern about the situation in Poland, most recently by launching an infringement about the Muzzle Law in April.

It argued in a variety of ways that a conflation of prong 1 and 2 of the test would take away from the necessity of always making an individual assessment based on the situation of a particular person.

And that it is up to the national court to make that assessment in each and every case each and every time. The Amsterdam court may have misunderstood the test. There is no hierarchy or logical chronology in the 2-step test, according to the Commission. It is just up the national judge to apply it properly.

Applied in any other way the test would disqualify remaining judges in Poland, about whose fate the Commission repeatedly expressed “hope” that it would soon improve. (An observer who was present thought to himself: hang on, “hope”? The Commission came to the Court of Justice to express “hope”? As a Guardian of the Treaties? Hope based on what?).

The Commission, in other words, was confronted with questions asked by a national court based on two years of trying to get a test developed by the Court of Justice and simply sent the national court packing: just try harder and take your own responsibility. (Remember: the Commission took this position at the very moment that a judge was subjected to disciplinary proceedings by non-judges).

The key question

The was no clear reply from the Commission, however, to the following (repeated) key-question from five or six of the judges: so what should that alternative, non-hierarchical, case-by-case, don’t-hit-the-healthy-part-of-the-Polish-judiciary application of the same test look like?

Should a burden of proof be reversed, so that it is not for an individual to prove that an individual in a judicial function (s)he may become exposed to in Poland is in fact a judge? (Commission: no).

Would an individual assessment against the background of a systemic problem not have a very predictable outcome, making this an approach that would not quite pass the Commission’s Better Regulation thresholds? (Commission: an individual risk assessment remains necessary).

What guarantees by a Polish judicial authority about their own independence would at all be reliable? (Commission: see previous answers).

How would one guarantee the essence of the right to a fair trial in this way? (Commission: see previous answers).

But if the Commission insists on individual judges taking these individual risk-based decisions, leading to the possible situation of different national judges in different Member States assessing the situation in the same Member State differently, how could the uniform application of Union law be assured? (Commission: hmm).

But do we understand the Commission well that it would not start infringements against these other Member States for the way that their national judges interpret the LM-test? (Commission: see the previous answer).

Poorly made argument at a bad time

As a lawyer one is used to sometimes hearing weaker arguments, sometimes made for political reasons, and one develops an appreciation and even admiration for the art of making even these eloquently. But this is just a bad argument at a bad time, made poorly.

And that is a compliment to the term “argument”. And it is at the cost of all involved: suspects awaiting transfer, real judges in Poland who do not see the fakers around them disqualified (and don’t know what to answer about the prospects of their own independence), and judges in the other Member States who basically get the hot potato moved towards them since the Commission does not want to face reality, without it then simply assuring it will not start infringement either.

It is plain irresponsible all around. It is hoped that, if the Commission (for now?) does not want to be part of a solution, at least it won’t get in the way of one that national judges, perhaps in both Member States together, develop in its absence. The issue at hand is just too important for non-action.

What’s next

The Advocate General will issue his Opinion on 12 November. The ruling will come out before the end of the year. If the impression that the Court of Justice is looking for a way to clarify LM is correct and materialises into something (more) workable, 12 October may have had a slender silver lining.

Yet, realistically, even then it would only make an untenable situation slightly more workable in the short run. We cannot continue to look only at independent and impartial judges, in Luxembourg, in Amsterdam, and in Poland, to deal with, let alone solve this problem. They are contributing more than their fair share already.

We need people in the Commission, a majority of the Member States, and a complacent minority in the European Parliament to take a good look in the mirror and ask themselves: why should I take responsibility for making arguments that destroy what I have pledged to defend? What is holding me back from confronting the problem now it can still be confronted meaningfully? What keeps me from acting before it is too late?

Put yourself in the shoes of Beata Morawiec. Imagine how she is feeling. That is on you.