In late 2015, the right-wing populist party, Law and Justice (in Polish Prawo i Sprawiedliwość PiS), came to power in Poland. Almost immediately, the party began pushing for judicial reforms, claiming these were overdue in light of a system supposedly riddled with communist-era corruption.
The claims were baseless of course, as the Polish judicial system had already been reformed years before to allow Poland to join the European Union (which it did in 2004): Poland signed an Accession Treaty to join the Union as all new members do, showing a clean slate (no corruption!) and adherence to democratic values and principles, including the separation of the three powers: executive, judicial and parliamentary.
According to the European Commission, the PiS-led reforms placed Poland’s judiciary “under the political control of the ruling majority,” thus stripping it of its independence and undermining the rule of law. As a result, “serious questions are raised about the effective application of EU law.”
One of the more controversial reforms involved lowering the retirement age for Supreme Court justices from 70 to 65, but leaving the president with a discretionary power to prolong the mandates of judges of his choosing.
This was widely perceived as a ploy to replace acting judges with new ones whose loyalties, interests and ideologies are aligned with the PiS. In addition, the retirement age for women judges was five years lower than men’s.
The European Court of Justice has ruled various elements of the judicial reforms as illegal under EU law.
The EU has been in dispute with Poland over the reforms for the past few years, urging Poland to realign itself with EU standards of democracy and judicial independence.
The row was exacerbated in 2019 when Poland established the Disciplinary Chamber Law, an extremely controversial bill that enables the government to control the judiciary, as the Disciplinary Chamber is given the power to evaluate judges and prosecutors and dismiss them at will.
In 2021, the European Court of Justice, ruled the Disciplinary Chamber illegal because it undermined judicial independence.
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But instead of respecting the ECJ’s ruling, Poland endeavoured to challenge the primacy of EU law in another court case. Ultimately, this led to the European Commission delaying Poland’s designated pandemic-recovery payout.
The fund has remained frozen, its release contingent on a roll-back of Poland’s controversial judicial reforms. The European Commission has linked the disbursement of cash to Poland’s meeting of set ‘milestones’, a plan which Ursula von der Leyen signed off on in 2021.
This decision was widely criticised as too lenient towards Poland and many called for a far stauncher defence of democratic and rule-of-law values.
Vĕra Jourová, the commissioner for values and transparency, told POLITICO that the milestones in question would “build on the ECJ’s ruling, meaning Poland’s disciplinary chamber needs to stop all action, and Warsaw should reform the chamber.”
Needing the money to improve chances of reelection, along with the building pressure of crises such as the Ukraine war, president Andrzej Duda has become increasingly desperate to access the funds.
In May 2022, Duda proposed legislation which he claimed met the prescribed milestones, but it was generally seen as a “sham” designed to unlock the cash flow which didn’t actually do much to remedy the issues at hand.
Last Wednesday, the first stage of a new bill was approved in Poland’s parliament, and if the EU accepts it as meeting the requirements it would grant Poland access to €36 billion in loans and grants from the recovery fund.
Eurosceptics in the parliament rejected the bill, but they were in a serious minority. Sebastian Kaleta, a member of “United Poland,” PiS’ coalition partner, described the bill as “a capitulation, and a prelude to more blackmail by the EU.”
The bill would move judicial review proceedings from the controversial Disciplinary Chamber to the Supreme Administrative Court, which is seen as more independent.
It would also remove sanctions currently in place which effectively censor judges from speaking out against or even questioning the judicial reforms.
Doubts remain with regards to the adequacy of these measures. Daniel Freud, a Green party German member of European Parliament, said the bill would not “substantially solve the issue of disciplining judges for political reasons in Poland. I still don’t see the milestones to be fulfilled. Releasing payments to Poland in this situation is not justified.”
Whether government control of the judiciary will tangibly be reduced remains to be seen. Importantly, the EU cannot afford Poland any leniency with regards to undermining the rule of law, democracy and judicial independence – values on which EU membership is contingent. It is expected that the Commission will remain vigilant in its assessment of the adequacy of Poland’s proposed “solutions.”
Editor’s Note: The opinions expressed here by the authors are their own, not those of Impakter.com — In the Featured Photo: A Polish National Assembly meeting. Featured Photo Credit: Wikimedia Commons.
