“The Constitutional Tribunal is an integral part of the system which is the rule of law (…) I do not think that anything will stand in the way”, the tragically deceased president of Poland, Lech Kaczyński, symbolic patron of the Law and Justice party (PiS), said in 2006. If only he knew that only a decade later, his own brother Jarosław – the present dictator of Poland – would stand in the way of his words.
On 7 October, the politicised puppet constitutional tribunal in Poland issued a politically motivated pseudo-sentence, which cast a shadow of fear on Polish citizens and the whole of Europe. The Polish government has repeatedly challenged the European Union with more and more disputes and quarrels, but it has never gone so far in its actions aimed at a ‘Polexit’, an exit of Poland from the European Union.
This ‘sentence’ could be the first step to Polexit, and at the same time a gift for the Kremlin and President Vladimir Putin made by our delightful Tribunal lead by Julia Przyłębska, a Master in Law. However, the saddest thing in all this is that it is happening despite the fact that Poles are – according to polls – one of the most pro-European nations in the EU. The British had a referendum at least. In our case, Poland’s governing party risks getting us out of the EU without asking anyone’s opinion – like they tend to do with all the acts of law in the Polish Parliament.
The PiS-controlled Constitutional Tribunal questioned the principle of primacy of the EU law, which is the foundation of the EU legal order. The aim of this ‘sentence’ from 7 October is to defend the PiS system against the intervention of the EU. And the decision to issue it is unprecedented. Regardless of what the representatives of the Polish authorities claim, no other court in the EU has ever gone that far in undermining EU’s legal order. In fact, this verdict created a problem not only for Polish citizens or the whole of the EU itself, but also, I believe, for PiS.
To start with the perpetrators, I believe that PiS has now only three options. Either they can try to amend the Treaty on European Union (TEU), so that its provisions comply with the ‘sentence’ – but this will never happen. Or they can change the constitution or simply cancel the ‘sentence’ – these, however, do not seem realistic options, considering the political will that is hidden behind this ‘sentence’. Or, finally, Poland can leave the EU, which, I believe, PiS does not really want – but it is certainly capable of causing this, by accident or by design.
That they are capable of steering Poland out of the EU is evidenced not only by this unlawful sentence, issued by an unlawful tribunal filled with private judges of Kaczyński, but also by the recent statements of PiS members, not least PiS MEPs. MEP Witold Waszczykowski threatened “Poland may lower contributions to the EU”, MEP Zdzisław Krasnodębski called the EU “a collapsing utopia”, and MP Marek Suski spoke of a, as he put it, “Brussels occupation”. The current judge of the Polish Constitutional Tribunal, Krystyna Pawłowicz, appointed by PiS, was particularly vulgar: “the EU flag is a rag”.
The truth is that PiS aims to prevent further EU interventions in the completely politicised Polish legal system. No other member state has gone so far in introducing political control over the judiciary, so this is an absolutely critical moment for the EU.
For the EU, this raises the question if we can allow such states to function in our community. Kaczyński, through the hands of the Constitutional Tribunal, has declared an open war against the Union, declaring that Poland would, by nature, not respect one of the fundamental legal standards – judicial independence. This situation is a test case whether a judiciary system, where the principle of judicial independence does not apply, can be tolerated in an EU member state. What is more Poland already is not implementing Court of Justice of the European Union (CJEU) judgments, so we are on a collision course with the whole structure of the EU.
But the actual victims of this ‘sentence’ are the citizens of Poland. Poles are one of the most pro-European societies of the Union. According to the already mentioned research, almost 90 per cent of Poles are satisfied with Poland’s membership in the European Union and are aware of its benefits. The brave people of Poland expressed it in mass demonstrations that took place immediately after the ‘sentence’. Unfortunately, it doesn’t seem that the government is listening to them at all.
The worst thing is that Poles did not suddenly wake up in an authoritarian country. Beginning in 2015, PiS – led by Jarosław Kaczyński – has undertaken a slow process of dismantling democracy. At the same time, PiS has tested the EU on how far it could go with its tricks. In my opinion, the reaction of the institutions was not fast enough, and that’s why we are at this point.
The Council does not move on with the article 7 procedure – the only words that come to mind are ‘sluggishness’ and ‘inaction’. The Commission is no better – even now, as there is a mechanism to protect EU funds in the event of a threat to the rule of law in a given member state, the Commission hesitates to use it. The conditionality is a statutory law that should have entered into force on 1 January 2021. Meanwhile, the Commission is waiting for the CJEU judgment, which is the result of the non-binding political agreement of the December 2020 EU Council Summit.
Since the mechanism is still not used, once again Polish people are not being treated fairly. The conditionality mechanism at least foresees the option to protect the final benefiters of the funds, and right now the Commission started to fight by – for example – simply freezing the recovery funds. But in the end, it will hit the citizens nevertheless. In all this madness, we can only hope that this time, the Commission reacts efficiently, without any delay, and requests a financial fine from the CJEU for the non-implementation of the judgement regarding the disciplinary system of judges from 15 July 2021. Moreover, the release of the recovery funds for Poland should be linked to the full implementation of all CJEU judgements.