Just a Feint?

In the shadow of the Russian assault on Ukraine, another battle rages on: the struggle for the rule of law in Poland. This battle, too, saw attacks that quickly turned into retreats and resounding defeats sold as victories. A running joke in the pro-democratic military analyst community is about ridiculing the messages of pro-Russian experts who are pretending that the Russian defeat in the battle of Kyiv was “just a feint”. I am afraid that the European Commission just walked into a similar strategic blunder with its deal with the Polish government on the recovery fund and the Supreme Court.

Following last week’s vote in the lower house of the parliament (Sejm) where the ruling coalition supported President Duda’s proposed new law on the Supreme Court, it appears that the European Commission will strike a deal with Warsaw. This deal would entail approving the Recovery and Resilience Facility (EU’s COVID-19 recovery fund) plan prepared by Poland and an agreement on a set of milestones for pay out of the RRF based on specific actions to be taken by the Polish authorities.

Two remarks are necessary here to help understand the broader context. First of all, there’s an expectation among the commentariat that withholding the approval of the Polish recovery fund was supposed to address a wide range of the Polish rule of law problems, including items such as the compromised Constitutional Tribunal or the politicised National Council of Judiciary. Unfortunately, this expectation does not match the assumptions of the European Commission, which has decided to address the various elements of the rule of law crisis in Poland using distinct parts of the EU rule of law toolbox. Under this assumption, the withholding of the recovery fund coupled with the 1m EUR/day penalty for not implementing the CJEU interim order in the case C-204/21 are supposed to tackle precisely the issues of the Disciplinary Chamber of the Supreme Court and the so-called “muzzle law”. Of course, one can argue that the Commission’s approach has been faulty, but that is a topic for another discussion – for the incoming deal, we are stuck with what Berlaymont assumed.

The second expectation that seems widespread is that the new law on Supreme Court will be the entirety of the solution proposed by Warsaw. However, that is not the case as the Polish government is to commit itself to a series of actions linked to milestones that will result in the payout of subsequent elements of the recovery fund. One such expected element is the un-suspension of judges, with judge Paweł Juszczyszyn, who spent a total of 839 days removed from work with reduced pay, already having returned to the court. The entire content of these milestones is yet to be unveiled, but the law on the Supreme Court needs to be analysed under the assumption that it is not the only measure that the Polish government will promise to undertake towards addressing the criticism from the Commission.

The proposed law that is now making its way through the Polish parliaments warrants attention. Despite it still having to go through the complicated Polish legislative process, there’s a general expectation that it will be adopted as it is currently. The other house of the Polish parliament, the opposition-controlled Senat, cannot stop its passage, and Sejm can reject any amendments Senat proposes. The signature of President Duda under the law he drafted himself is assured. The only possible wrinkle could be some quake in the increasingly shaky ruling alliance between PiS and its junior partners, in particular the Prosecutor General/Minister of Justice Zbigniew Ziobro, who was long against any step-backs in the rule of law standoff with Brussels. But even that is rather unlikely, leaving us free to discuss the law as if it was already in force.

So, is the proposal from Duda enough, aside from the above caveats and assuming that we’re looking at an almost-in-force bill that won’t change much? I argue that it is not, for at least one fundamental reason, which I will elaborate on here. The primary requirement put forth by European Commission President Ursula von der Leyen as expected to be fulfilled by Poland towards unlocking the recovery fund is abolishing the Disciplinary Chamber of the Supreme Court. The Disciplinary Chamber has been one of the centrepieces of the Polish rule of law crisis, having served as a mechanism ostensibly established to improve the handling of disciplinary matters of judges and ensure the integrity of the disciplinary proceeding. In practice, it has become known for serving as an instrument of politically motivated pressure and targeted harassment against judges. The Disciplinary Chamber has been the subject of several court rulings, most notably the CJEU judgment C-791/19 from July 2021 and the ECtHR judgment in Reczkowicz v Poland, from the same month. It has become a symbolic element of the Polish rule of law crisis – a body established ex nihilo to serve the political will of the ruling party in its quest to quash judicial independence.

Ostensibly, the new law does what the Commission expects – it abolishes the Disciplinary Chamber, replacing it with a new chamber of the Supreme Court – the Professional Liability Chamber, tasked with handling various disciplinary proceedings concerning professions regulated by the state, ranging from judges to physiotherapists. The members of this new chamber are to be randomly drawn from existing judges of the Supreme Court’s other chambers – the Civil Chamber, the Criminal Chamber, the Labour and Social Security Chamber and the Extraordinary Control and Public Affairs Chamber, the other new chamber established by the current ruling majority. The members of the disbanded Disciplinary Chamber would have a choice: retire immediately from the court or stay on, joining one of the other chambers. Unfortunately, this means that those judges appointed on a political notion regarding their loyalty to the ruling party may remain at the Supreme Court. Making matters worse is the possibility of such judges being drawn randomly to sit on the Professional Liability Chamber, leading to them being “recycled” into the role of judging in disciplinary proceedings of judges and lawyers.

The issues with the new Chamber are more profound, however. All the other Chambers of the Supreme Court feature, to a varying degree, judges appointed with the participation of the National Council of Judiciary, itself a body that’s heavily politicised owing to the parliamentary majority appointing the majority of its members. The issue of independence of the Supreme Court judges of other Chambers appointed so was already subject to ECtHR rulings finding a breach of the right to a fair trial provided by Art 6 (1) ECHR in cases where such judges presided. Besides the issue of such judges continuously sitting at the Supreme Court, their potential inclusion in the new chamber is highly problematic.

The proposed law provides for the President’s approval for the appointment of the randomly drawn judges into the Professional Liability Chamber. The recurring argument from the Polish government is that the validation by President Andrzej Duda is the ultimate safeguard, as his election by a popular vote and independence from the government and the parliament means his decisions are guided solely by the Constitution. But President Duda has displayed, on multiple occasions, that he is all too willing to misinterpret the law and make decisions in line with the political will of the ruling party. His final signature is thus no concrete safeguard. Despite his episodes of bucking the trend and acting against the government’s interests, he can be hardly seen as a guarantor of the new chamber’s independence.

Other issues persist with the incoming law, and some of them have been highlighted recently by Polish NGOs working on the rule of law. But the above-mentioned problem with the composition of the new chamber alone is sufficient to call the Polish move a feint, an attempt to convince the European Commission that a genuine change in the Polish rule of law is imminent. The Polish government is trying to capitalise on the goodwill generated by the entirely praiseworthy support for Ukraine provided by Poland since the Russian attack. Betting on the Commission willing not to escalate its pressure on a Member State that risks so much in the collective European struggle against Russian irredentism, Poland is counting on getting away with most of its problematic laws. It is a feint – one the Commission should not have fallen for.