Muzzles are said to tame snappy dogs. That is the original sense of the word. So when Polish politics is currently arguing over a "muzzle law" for the judges in the country, it shows the seriousness of the conflict. But this no longer has an internal political dimension: the national conservative PiS government is also arguing with the EU Commission over the reform. It is about the basic reasons why some commentators are already warning of a creeping Polexit, before Poland leaves the EU.
The Vice President of the EU Commission, Věra Jourová, who is responsible for core values, is traveling to Warsaw this Monday. In advance, the Czech signaled several times that she was ready for an open conversation, unlike her predecessor, the Dutchman Frans Timmermans. The social democrat had always taken a tough line in the dispute with Poland's right-wing conservatives. Jourová, on the other hand, belongs to the populist ANO movement of the Czech Prime Minister Andrej Babiš, of which she is a moderate representative. Nevertheless, hardly anyone in Warsaw and Brussels expects more than an atmospheric brightening from the visit. The bottom line is that both sides claim the ultimate decision-making powers in matters of lawmaking.
Most recently, the EU Commission applied for an injunction against the European Court of Justice (ECJ) against Poland. A disciplinary chamber in the judicial system installed by the PiS government "does not meet the requirements of EU law on judicial independence", the reason was. The Polish judiciary is threatened with "irreparable damage". The PiS countered at the end of last week by passing the "muzzle law" in parliament. Judges in the country should therefore no longer comment on political decisions in the future, nor should they be allowed to criticize the judgments of other chambers.
The signature of President Andrzej Duda, who is a political foster son of PiS chief Jarosław Kaczyński, is a formality. Even more: Duda, who is applying for a second term in spring and is already in campaign mode, said with a view to the EU Commission: "Nobody will tell us in foreign languages how we should build up the Polish state." Minister of Justice Zbigniew Ziobro, who is considered the mastermind of the controversial changes in the Polish judiciary, spoke in a similar manner when he criticized an alleged "neocolonial approach" by European institutions.
A split between old and new judges
If you want to understand this exacerbation, you have to reconsider the basic conflict that has been going on for more than four years with all its riot and continuation. After its double triumph in the 2015 presidential and parliamentary elections, the PiS had not only brought the constitutional court and the state media to the party line. It also took action against the independence of the judiciary. The reason was that too many judges still came from the communist era. They are simply unsuitable for judging law in a democratic state.
To correct this, PiS changed the working basis of the National Judicial Council, which decides in Poland to fill judges. From now on, the members of the Council should be determined by the parliamentary majority, i.e. by the PiS. This gave the party at least indirect influence on the case law. However, this saw not only the Polish opposition but also the EU Commission attacking the independence of the judiciary and the separation of powers. It initiated a rule of law procedure under Article 7 of the Lisbon Treaty, which in the most extreme case provides for the withdrawal of all voting rights in the EU institutions.
The process is still ongoing, but has little chance of success. In a vote, the veto of a single member state would be enough to prevent Poland from being suspended. That is why Luxembourg finally became the decisive arena in the dispute. The ECJ stopped central parts of the PiS reforms there in 2018. The lawyer Kaczyński's party gave in on several points, but left the judges appointed by the new judicial council in office. In practice, this led to a split in the Polish judiciary into old and new personnel, which had been deployed according to PiS rules.