We spoke to Slovak MEP Michal Šimečka, a member of the Renew Europe liberal fraction in the European Parliament, on 12 February 2020, the second day of the Parliament’s plenary session in Strasbourg.

At the request of “Let’s Renew Europe”, on 11 February the Parliament addressed the situation in the Polish judiciary. Once again, less than a month after the previous debate, during which the Parliament adopted a resolution calling on the Council of the EU to react more effectively to violations of the rule of law.

 
 
Between January and February, however, the situation in Poland deteriorated significantly. The Sejm rejected the Senate’s veto of the “muzzle” law, and President Andrzej Duda signed the legislation. Šimečka sat down with us for an interview on the eve of the law’s entry into force.
 

“The situation in Poland is quite urgent. As we know, the so-called “muzzle” bill has been signed into law – the threat to the rule of law and the integrity of EU values is real. This is the message that we want to convey, that time is running out,” he explains.

Šimečka is among the MEPs most vigorously defending Poland’s rule of law in the European Parliament.

However, in his conversation with us, he stresses that the EU has limited possibilities for action and that ultimately the fate of Polish democracy rests in the hands of the Polish government and voters. But he recalls that the EU has ways to put pressure on Poland. There are also new solutions in the pipeline – including perhaps linking the disbursement of EU funds to the rule of law.

He also tells us about his concerns about the parliamentary elections in Slovakia on 29 February 2020.

Maria Pankowska: Why did Renew Europe decide to add a point about the situation in Poland to the last plenary discussion? After all, the EP just recently discussed Polish judiciary reforms in January.

MEP Michal Šimečka: It just shows that the situation in Poland is quite urgent. As we know, the so-called “muzzle” bill has been signed into law – the threat to the rule of law and the integrity of EU values is real. This is the message that we want to convey, that time is running out.

This was widely acknowledged by the Parliament, including the biggest political groups – the S&D, the EPP – as well as by the Commission. Both vice-president Jourova and commissioner Reynders were present at the debate.

The situation is so serious that, unfortunately, we had to have another debate four weeks after the previous one.

Are Polish government politicians alone in the EP? How about the ECR group – do its members support Law and Justice?

I’m not familiar with the internal dynamics of the ECR group. My sense is that it’s not the case that the whole group is behind the Polish MEPs. Some people in the ECR have questions about what’s happening in Poland.

Obviously, there’s the far-right ID group which supports them out of principle. Because they tend to criticise the EU for “encroaching on national sovereignty” anywhere.

But the big political groups – the EPP, S&D, Renew Europe and Greens – are basically speaking with one voice when it comes to the rule of law and Poland. In this sense the Polish government and its MEPs are isolated. You saw that in the debate.

What is that the Parliament and Commission have noticed?

That there’s a real danger the Supreme Court will soon be politically captured. That may prove a point of no return for the independent judiciary in Poland.

Of course, dialogue between the Commission and the Polish government is ongoing and there is still hope that the Polish side will change their mind.

But there are also more concrete tools, legal actions. There’s a pending request for interim measures at the EU Court of Justice, and there will be further rulings by the CJEU on the Disciplinary Chamber and the National Council of the Judiciary. The EU may use these legal measures to protect the rule of law and independence of the judiciary in Poland.

And what happens if these measures don’t work?

We have to be honest with ourselves – ultimately there’s only so much the EU can do.

If a Member State’s government subjugates its judiciary and bears the financial and legal consequences, there’s nothing the EU can do. The Union simply doesn’t have any disciplinary or enforcement power. There’s no Brussels police which could come and bend the Polish government to its will.

And this is good. In the end, it is up to the Polish government and the Polish people. The EU can only say that the rule of law is a shared value, critical to the functioning of the Union and to Poland’s EU membership. And that if it is systematically undermined, there will be consequences.

What is the threat for Poland if the government continues with their “reforms”? Is the plan of linking EU funding with the rule of law a realistic scenario?

It’s difficult to say at the moment. This will be part of broader negotiations on the MFF in the European Council. We have no way of knowing now if and what version of this conditionality will make it through.

But I think it’s a logical instrument to have. Imagine you’re a German or Slovak taxpayer who contributes to the EU budget. And then you see that the EU money – your money – is being misspent and used for the benefit of oligarchs close to the ruling party in Hungary.

In a situation where there are no independent and strong enough police, prosecution and judiciary to prosecute those cases, there’s a huge risk that the money will not be spent well. So, there’s a need to redirect the funding.

It’s not a question of punishment or sovereignty. It’s a question of protecting the financial interests of European taxpayers. Slovak taxpayers, German taxpayers – and Polish taxpayers too.

Of course, the budget needs unanimity to be approved by the Council, then by the Parliament. Still, I hope that at least some version of this conditionality passes. It is really important for the EP because we are responsible for overseeing the budget of the EU.

What is also problematic is that Hungary, in this case, is not even a member of the European Public Prosecutor’s Office. And Poland isn’t either. This makes it even more difficult to oversee how the money is spent and prosecute potential misuse of EU funds.

Why was there so little effort to contain the situation in Hungary?

We have to note that the Hungarian government is in a different situation because Fidesz is part of the EPP. Anyway, the EU was very late in catching up with events in Hungary. The Article 7 procedure was triggered late, maybe too late.

It seems that Poland has been particularly targeted by EU institutions then.

This is a part of an ongoing struggle with the rule of law and democracy in the EU.

It’s not that everybody is just obsessed with Poland. Obviously, the Polish case is critical and escalating quickly. But in the European Parliament we discussed Malta before, Slovakia was also on the agenda after the murder of the journalist Jan Kuciak and his fiancée. We’re witnessing a more general crisis of these values in EU member states.

The EU is at a crossroads. It has to decide whether it can tolerate Member States which are not fully democratic, or whether it will do something to contain this. In my opinion, the Union cannot function if its members are not liberal democracies with an independent judiciary.

This isn’t just a question of values, but also for practical reasons. We have the Single Market, the Schengen zone, cooperation in security, against organized crime and terrorism. All these rely on mutual trust between the Member States. Trust is based on the fact that we’re all democracies. So it is a European problem.

Everything we do in the EU, including the Green Deal, all the ambitions that we have rest on the idea that we trust each other.

PiS politicians would say that this is the voice of old liberal European elites afraid of being pushed away by new political forces. That you’re biased, and you divide parties into better and worse.

It’s not about being liberal, conservative or anti-immigration. It is natural and healthy that we have governments from different political families. But we all have to operate under some basic, common rules which, by the way, are also part of the treaties.

Malta has problems and their government is socialist, pro-European. We’ve been critical of them anyway.

Is the EU learning how to deal with such problems?

Yes.

The project I am currently working on as EP rapporteur, a rule of law and democracy monitoring mechanism, will hopefully prevent such crises from arising in the future. It would be a yearly assessment of the state of rule of law in all 27 Member States on the basis of objective criteria, applicable to everybody.

It’s a similar review procedure to the one we have with the European semester, or inside the Eurozone with fiscal discipline criteria.

Is this a blessing in disguise for the EU? Will it come out stronger, better prepared?

I think we need these new mechanisms, and not only because of the problems that we are seeing.

We also need them because the EU is becoming even more interlinked, especially in the areas of law enforcement, police, internal security. For such close cooperation, mutual trust has to be even stronger. The independence of the judiciary and prosecution service must be guaranteed.

Lots of people say that this is the EU encroaching on Polish sovereignty and that Polish courts are a Polish matter. It’s not true.

This is also important for Slovak citizens. There are companies, businesses from our country investing in Poland – they have the right to a fair trial with an independent judge. There are other citizens who might get into a legal dispute in Poland and they also need to have equal access to justice.

Could you imagine Poland being kicked out of the EU for not adhering to its rules and values?

Poland will not be kicked out of the EU. You are a crucial, indispensable member of the Union and a very close partner for Slovakia. Everybody has huge respect for Poland’s place in the EU, Polish history, your influence on Europe. For Slovakia, your membership and strength are critical also from a strategic and economic perspective.

But it is also in the interest of all Member States, and the EU as such, that the rule of law is protected as well as the integrity of European values and our legal community.

The Polish government says that it isn’t doing anything different from other Member States, like Germany or Spain.

It’s not only about legal arguments. Some measures might be similar to some countries, but context is very important.

The Polish MEPs yesterday and the Polish government in general say that they need to reform the communist judiciary. And then they would say that, for instance, the Dutch don’t have a constitutional court.

But this rings hollow, because the rule of law is a well-defined principle – there must be equality in access to justice and independence from political interference. It has also been defined by the EU Court of Justice, the ultimate arbiter when it comes to these issues in the EU.

So it’s not about legal tradition, it’s about the principle: judges should be independent from political pressure. There should be some accountability, but not complete control by the majority in parliament.

How about Slovakia? Do you also have problems with judicial independence?

This is a difficult topic in the post-communist countries.

In Slovakia, we have also had huge problems with a slow, inefficient and corrupt judiciary. After the murder of Jan Kuciak, we are seeing new issues arise. Judges and prosecutors were bought off by mafia. So I can understand your situation.

It’s one thing to try to reform the judicial system so that it works better. But it’s another thing to try to assert political control over it, which is what the Polish government is doing.

In Slovakia, for instance, as much as we criticise our judiciary, it’s not the case that politicians are trying to completely take over our judiciary council. It’s a self-governing body, where most members are elected by the judges themselves. This is how it should be.

But Polish politicians say that in some countries, such as Germany, the system is very politicised and that it is unfair if we cannot do the same.

They’re cherry-picking bits and pieces from France and Germany.

I’m not a legal expert, so I rely on the legal opinion of the Court of Justice, which says that the way in which the National Council of the Judiciary and the Disciplinary Chamber of the Supreme Court were set up is problematic. [The CJEU] is the authority on interpreting Article 2 of the Treaty and other provisions about the rule of law in the EU.

The government also says that most Poles support their reforms. I saw you received a lot of spam e-mails with information about this before the plenary session.

Yes, hundreds of emails, I’m still getting them. All with the same text.

If these e-mails were from real citizens, I would sympathise. I also want the judiciary in Slovakia to function well, so that every trial doesn’t take years, judges are not corrupt and everything runs smoothly. This should be the goal of every government – for the judiciary to deliver justice in a timely and impartial manner.

But it’s a whole different thing to try to critically take over the system. We’re talking about two different things. One is reform, so that the justice system works better – no wonder a majority of Poles want that. I would imagine in Slovakia this would also be the case.

But if Slovaks were asked if they want the judiciary to be under political control, most Slovaks would say no.

There’s an election upcoming in Slovakia. Does it influence your work at the EP? Is this why you are so engaged in protecting the rule of law?

When it comes to the rule of law we have our own problems indeed. The murder of Jan Kuciak and the trial of Marian Kocner – a mafioso and oligarch – who is most probably behind this murder brought these to light. We have seen his connections to the governing party as well as to judges and prosecutors.

The problem in Slovakia is, of course, of a different nature than in Poland. There wasn’t any concerted effort by the Slovak government to take over the judiciary. But we have problems, just like many other states, for instance, Malta.

With the Slovak elections, the big risk, at least from my perspective, is the rise of the fascist party. And the worst-case scenario is one in which the governing party of Robert Fico – SMER – which is losing support but is still the largest, forms some sort of an alliance with fascists.

This could threaten Slovak democracy and the rule of law.