During a visit last week to Warsaw, the European Commission’s vice president, Frans Timmermans, hinted about possible solutions to the Polish government’s attacks on the country’s judicial system. Let’s hope they don’t include a wobbly compromise that does little to address the damage done by a government seemingly determined to bend the courts to its will.
In December, when it triggered Article 7—the European Union treaty mechanism to deal with conduct by EU governments that puts the union’s values at risk— the European Commission pointed to the Polish government’s adoption of more than 13 laws that aim to make the judiciary more compliant.
In just two years, the government has deliberately ignored key rulings of the country’s Constitutional Tribunal; added judges to make the Constitutional Tribunal more favorable to the government; forced almost half the Supreme Court judges to retire; and allowed the justice minister discretion to dismiss heads of ordinary courts.
Pressure from the European Commission has prompted Polish Prime Minister Mateusz Morawiecki to hint at a possible compromise, but these fall woefully short: publishing two-year-old Constitutional Tribunal rulings – while at the same time recognizing they won’t be implemented; slightly adjusting the retirement age of Supreme Courts judges – but effectively confirming the purge of a large number of them; and, finally, requiring the justice minister to consult with other judges before dismissing ordinary court presidents – while at least 130 judges (out of 300) have already been fired since August 2017. At the same time, the government confirmed it intends to keep the “essence” of the damaging reforms it has already implemented.
The reforms do nothing to address the commission’s concerns so shouldn’t stop the EU from moving forward with its action under Article 7. But the commission has a track record of accepting cosmetic changes as progress – Hungary being a good example.
Doing so here would be a profound mistake. The commission should insist that the rulings of Poland’s Constitutional Tribunal and its own recommendations are fully implemented, request interim measures from the European Court of Justice on the discretionary powers of the justice minister to appoint and dismiss presidents of ordinary courts, and continue to closely monitor judicial independence in Poland.
There is more to worry about in Poland, including threats to media independence, restrictions on nongovernmental organizations access to funding, and a memorial law that could have a chilling effect on freedom of expression. Polish civil society and the rest of the EU cannot afford for the European Commission to drop the ball now.