Over thirty years after the collapse of communism and the fall of the Berlin Wall, there is a renewed struggle today in Poland for one of the fundamental values of a democratic constitutional state, namely the independence of courts. The interventions of the European Union to date, serving the protection of Polish judges, pour sand into the machinery of power of the Law and Justice (PiS) government. But judges are more and more under pressure. For now, however, the authorities are not changing direction. 

How to have your cake and eat it 

The “reform” of the judiciary, which has been carried out by the PiS government for several years, is aimed solely at changing the staffing of the judiciary. The process of appointing judges has been changed so that the political authorities can nominate “their” judges without scrutiny, especially to the Polish Supreme Court (SC). To this end, the Constitutional Tribunal (CT) was first attacked and “packed”. Then the composition of the National Council of the Judiciary, which proposes judges for nomination to the President, coming also from the PiS camp, was changed. From a body that was supposed to safeguard the independence of judges, it became a body nominated by politicians. Judicial control over the process of appointing SC judges was also practically removed. Presidents of courts throughout Poland have been changed and subordinated to the minister of justice.

With the activity of the European Commission (EC) and Polish judges referring preliminary questions to Luxembourg as well as citizens complaining to Strasbourg, virtually every element of this “reform” has already had its own international court ruling. All of them point at material contradictions with European standards. Yet despite these rulings, but also precedent-setting temporary injunctions or multi-million Euro fines, the breakdown of the judicial system continues. From the perspective of investors and citizens, court cases are taking longer and longer, legal certainty is decreasing. 

The authorities, whose only goal seems to be that the EC finally releases the money from the EU Covid Recovery Fund, are only creating sham solutions, trying to pull the wool over the eyes of the EC. PiS wants to get the money, but at the same time it does not want to give back a single piece of the field it has already won. The “new” judges are to stay at the SC. It wants to have its cake and eat it too. Meanwhile, the Court of Justice of the EU (CJEU) ruled in February 2022 that tinkering with the independent judiciary is an intrusion into the very identity of the European legal order, which is determined by EU values such as the rule of law. Thus the stakes in the game are getting higher.

The disintegration of the judicial system

One may wonder how a State can function in the European Union where more than half of the SC, including the person holding the position of its president, and the entirety of two chambers: the Disciplinary Chamber (DC) and the Extraordinary Control and Public Affairs Chamber (ECPAC), do not meet the European requirements of a court established by law. This was confirmed by the ECHR in cases such as Reczkowicz, Dolińska Ficek, or Advance Pharma. This means no more, no less, that these judges cannot rule on matters that are covered by EU law or the ECHR. And they do rule, so these rulings of the highest national court are flawed from the start. Also within the ECPAC, which can overturn even 20-year-old rulings of other courts at the request of a politician, the minister of justice. A Danish investor, who won a lawsuit against a company owned by the Polish state, found this out. The joy of winning did not last long. 

The situation is not better in the CT, now composed exclusively of judges nominated by the PiS party. The CT is no longer trusted by anyone but the representatives of the government. The ultimate proof: no citizen, recently confronted with patently unconstitutional Covid restrictions, has gone to the CT. Only representatives of the authorities willingly file motions asking the CT to invoke Polish constitutional identity and to restrict the effects of the principle of primacy of EU law, or to eliminate from application in Poland particular ECHR and CJEU judgments indicating violation of European standards concerning the judiciary. And the CT gives the authorities exactly what they want. That is also one of the reasons why for the first time in history, the EC initiated an infringement procedure, claiming that the CT is partially not a court established by law, and that it does not guarantee effective and independent control of the constitutionality of the law and that it undermines the primacy and effectiveness of the EU legal order.  

Polish judges live on the edge

An additional element of this “reform” is a program of regular intimidation of Polish judges. A law was created that forbids the application of the judicial independence case law of the European courts under disciplinary and penal sanctions. This was felt, for example, by Judge Niklas-Bibik, who dared to claim that a lower court had been staffed in breach of EU law and the ECHR. This brought many changes in her life. After 20 years, the court directors, nominated by the Minister of Justice, transferred her to a lower division of the court, took away all her cases, closed her access to files and refused to allow her to set up an E-curia account to ask a preliminary reference to the CJEU. She herself has been suspended. Now she faces disciplinary and criminal sanctions. This will be decided, among others, by the DC, which is entirely packed with defective “new” judges. According to Strasbourg and Luxembourg the DC is not a court and should have been liquidated long ago. But it still works. It is costing Poland 1 million euros a day, for now more than 200 million in total. The Commission is already deducting the unpaid fines from the funds due to Polish citizens. 

The (rather grey) perspectives…. 

To sum up, today Poland does not obey the verdicts of the European courts regarding the identity of the EU legal order, intimidates its judges implementing European standards, and pays high fines every day. Recently, the CJEU even stated that a ruling by one of the “new” judges could be disregarded as non-binding, and that those “new” judges, explicitly covered by an ECtHR ruling (that they do not meet European standards of a court), would not be able to refer preliminary questions to the CJEU. One can imagine what chaos this will cause in the Polish, and European system of legal protection. This red warning light will not get any redder.

Meanwhile, the PiS government is planning another reform. It wants to “flatten” the structure of courts and centralize power over them in the hands of the minister. That move will increase chaos and contradiction with European standards. In this situation the EC is closer and closer to releasing money from the Covid Recovery Fund. We have to wait and hope that even when the EC loses that instrument of pressure on the Polish Government, the EC, as guardian of the European treaties, will still have enough determination and possibilities to stop the ongoing decay of the Polish judicial system. For now, the prospects for this are rather poor. 

A shortened version of this article appeared in German in Internationale Politik.