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The Polish Constitutional Court recently attracted a lot of attention. In October 2020, the judges banned the abortion of sick fetuses. Nationwide protests followed. Two weeks ago the court declared that the lawful extension of the term of office of the incumbent Polish Commissioner for Civil Rights was unconstitutional. The government-critical incumbent Adam Bodnar will have to vacate his post. Another decision is pending this Wednesday. This time the whole EU should sit up and take notice as it will be affected by its consequences.
The judges will decide whether the European Court of Justice can suspend the work of Polish courts if their independence is in question. For years, the Polish judiciary has been the subject of criticism and infringement proceedings by the European Commission. The government of the populist Law and Justice party (PiS) has been continuously reducing the independence of the judiciary since 2015: The appeals and disciplinary procedures of judges are controlled by politicians, important bodies are appointed with party officials, and judges critical of the government are persecuted.
In 2020 the European Court of Justice (ECJ) ruled that the Disciplinary Chamber in the Supreme Court, which plays a key role in the system of control over judges, must temporarily cease its work.
The reason: It is very likely that the chamber is not an independent court and thus violates the EU Treaty.
In Article 19, this guarantees all citizens "effective legal protection" which, according to the ECJ, is not possible without an independent judge.
Much is at stake in Warsaw
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Despite the ECJ ruling, the chamber continues to work and is mainly looking for judges critical of the government.
And now, in response to a request from this disciplinary body, the Constitutional Court will decide whether its suspension by the ECJ violates the Polish constitution.
The fact that the constitutional courts of the EU member states are wrestling with the EU Court of Justice is nothing new. It is always a tightrope walk between national constitutional identity and supranational EU law. The Karlsruhe Court of Justice is best practiced in this across Europe. A year ago, his objection to a purchase program by the European Central Bank caused uproar and outrage, as he threatened to overturn the project, which is important for the entire euro zone. Until recently, the whole of Europe had to tremble when a lawsuit was filed against the historic EU development fund in Karlsruhe. In both cases, the disaster could be averted because the judges found a way out.
Unfortunately, there is much to suggest that the drama in Warsaw is taking a different turn. However, there is even more at stake here than with the two Karlsruhe jurisprudence, which has an impact on the media. Should the Polish constitutional judges rule that the decisions of the ECJ on judicial issues do not apply in Poland, that would be a veritable declaration of war against the European legal order. The EU is essentially just a set of rules and the role of the ECJ as the supreme guardian of the principle of independent jurisdiction in the member states is indispensable. To refer to the national constitutional identity in this context, as the Polish government is doing, which is allegedly endangered by the “interference” of the ECJ, is an impertinence. The Polish constitution protects the rule of law no less than the EU treaty.Now both must be defended against a fundamental threat.
The Constitutional Court is the epitome of the crisis
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The Polish Constitutional Court itself is the epitome of the crisis that is now spilling over to the EU. It was the first state body to be placed under political control by the PiS in 2015. Its president is a personal confidante of party chairman Jaroslaw Kaczynski. PiS politicians play a leading role among the judges: The court comes into play to relieve the government of responsibility for unpleasant decisions. The PiS did not want to pass the anti-abortion regulation in the usual legislative process, despite the absolute majority in parliament. The opposition in the Senate lacked the necessary approval for the election of a successor to the ombudsman loyal to the regime. In both cases the Constitutional Court held such hair-raising,as well as readings of the constitution useful for the government. It is not to be expected that it will be any different this time.
The drama of the Warsaw decision is reinforced by its inescapable either-or character. The Polish government either accepts that the EU institutions are allowed to control the independence of the courts, or it places itself outside the European legal framework.
In contrast to the recent rulings in Karlsruhe, there can be no middle ground here.
It is not about concrete decisions of the EU organs, which - as in the case of the ECB - could be justified more precisely in order to dispel the doubts of the Karlsruhe judges.
Even if Karlsruhe had stopped the EU development fund, it would have been economically catastrophic, but it would have been irrelevant for the constitution of the EU and for Germany's EU membership.
The question of power posed by the Polish government via the EU constitutional court, on the other hand, would have to end with Polexit - or with the EU institutions giving up themselves in the fight for the rule of law.
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Both nightmare scenarios must be prevented.
In the event of a ruling that prevents the implementation of the ECJ rulings on judicial issues, the Commission not only has to immediately initiate infringement proceedings.
It is also said to threaten the suspension of EU funds, which is possible on the basis of a new mechanism to protect EU financial interests that has been in force since January 1st.
Above all, however, the EU member states, including Germany, must fully support the ECJ and strengthen its role.
Should the masters of the treaties fail to provide political support, the damage to the EU would be irreparable.
Source: ECFR
Piotr Buras is the head of the Warsaw office of the think tank European Council on Foreign Relations.