The European Commission Cedes its Crucial Leverage vis-à-vis the Rule of Law in Poland
The worst thing about the European Commission’s decision of 1 June 2022 to approve Poland’s EUR 36 billion national recovery plan, despite this country’s very meek (to put it mildly) assurances about improvements to its rule-of-law situation, is not even its substance, bad though that is. Worse still is the sequencing. By approving the plan in principle, the Commission has acted before the final version of the statute, crucial to the negotiations between the Commission and Poland, had been voted by the Polish Parliament. It is rather as if a judge were to hand down a judgment before hearing the pleadings by the parties. By doing that, the Commission removed from the Polish government (and the parliamentary majority, which comes to the same thing) any incentive to take on board seriously the Commission’s misgivings as to the regulations of courts and judges. To put it bluntly, it has ceded, without any good reason, its crucial leverage. It has also produced an incentive for the parliamentary majority to ignore the Polish Senate’s amendments, which go a long way towards implementing EU conditions. Let me explain, first in a schematic way.
Suppose we call B-1 the bill adopted by the lower chamber of the Polish Parliament (the Sejm); that same bill, as amended by the higher chamber (the Senate) is B-2, and the final bill, to be voted by the Sejm after having considered, i.e. approved and/or rejected the Senate’s amendments is B-3. B-3 is the binding statute, awaiting the signature by the President to enter into force. Add to this scheme the fact that in Poland, the Senate can make any amendments within the subject-matter of the bill (i.e., it cannot overstep the substantive range of the Sejm’s bill), but the Sejm can then adopt or reject any or all of them as it wishes – and with the same (simple) majority as in the initial Bill (B-1). So, de facto, the Senate’s changes have only a delaying effect, and can be seen more as advisory than binding in nature. And add to that another crucial factor: currently the Sejm is dominated by the right-wing coalition of PiS (Law and Justice) and SP (United Poland, which is a better translation than a literal one, Solidary Poland), while in the Senate the lower chamber’s opposition has a majority (by the thinnest of margins). So the Sejm plus the President represent the current right-wing, populist governing coalition while the Senate is dominated by the liberal-democratic and left-wing forces in opposition to the government. Cohabitation between the Sejm and the Senate is made easy by the weakness of the Senate’s powers. (The Senate has some meaningful competences but in fields unrelated to legislation, so I will put them to one side here).
Back to the sequence of events. In anticipation of the impending decisions by the European Commission, the Sejm adopted B-1 on 26 May 2022. The bill (which I will describe in a moment) went to the Senate, which adopted B-2 (with huge changes to B-1, again see below) on 1 June. At the time of writing, B-3 is yet to be adopted. (It is anticipated that the Sejm will vote on the Senate’s version, and that it will reject it, in the week of 6 June). And the Commission? – you will ask. It has adopted its decision on the Recovery Plan for Poland on 1 June (on the day on which, only hours later, the Senate adopted its own bill, B-2), and the day after, 2 June, Commission President Ursula von der Leyen paid a visit to Warsaw to bring the good news. In other words, the European Commission took its decision between B2 and B3 (or, if you are pedantic, just hours before B-2), thus pre-empting any need for the Sejm seriously to consider the Commission’s stance while deciding about B-3.
Now is the time to put some meat on B-1, B-2 and, by implication and as a speculation only, B-3.
Good cop and bad cop
In the last weeks and months before the events just described, Poland had been the stage of apparently fierce political infighting within the ruling coalition. The competition took the form of the popular canon: bad cop/good cop. The leader of the junior coalition partner (very junior, one must add, with only 17 MPs out of the Sejm’s deputies but crucial to maintain the right-wing majority), Minister of Justice Zbigniew Ziobro, acted consistently as a hawk completely rejecting any EU demands, expressing openly anti-EU views, and demanding even further capture of the judiciary of which he had established himself the ruthless controller. On the other hand, President Andrzej Duda and Prime Minister Mateusz Morawiecki, both PiS, adopted a seemingly more dovish, “pragmatic approach”, suggesting that the European funds are too important, especially in the time of war in Ukraine and the massive influx of Ukrainian refugees (over 3 million), to renounce them in the name of maintaining the so-called judicial “reforms” (a code name for post-2017 changes, subjecting judges to the executive). The leader of PiS Jarosław Kaczyński, Deputy Prime Minister and de-facto ruler of Poland, adopted a passive attitude of umpire between the hawk Ziobro and the doves Duda/Morawiecki.
In the end, it was a bill prepared in the President’s office that was lodged in the Sejm as the PiS proposal, with grudging support by Ziobro and his party (which was placated by some last-minute changes introduced by PiS to the presidential bill, humiliating the President in the process). The bill, B-1 in our nomenclature, pretends to take on board the Commission’s (and the Court of Justice’s) criteria for removing the worst aberrations of the Polish judicial system and thus making Poland eligible for the Recovery Funds. But it only pretends.
To see why the presidential/PiS bill adopted by the Sejm on 26 May falls short of the EU standards, it is best to match it to the (in-)famous “milestones”, in the Brussels new-speak, i.e. the criteria which are meant to encapsulate in a specific and precise way the conditions earlier established by the Court of Justice of the EU (CJEU) and the Commission. (More about whether the encapsulation is faithful to the original standards established by the Commission and the Court, below). At the last stages of the Commission/Poland negotiations, the following three “milestones” were agreed upon:
- Abolition of the Disciplinary Chamber of the Supreme Court (SC);
- Reinstatement of the judges unlawfully suspended by the Disciplinary Chamber;
- Removal from the disciplinary system of judges’ liability for their judicial decisions, including addressing questions of preliminary reference to the CJEU.
How are these milestones given effect in the statute as adopted initially by the Sejm (B-1)?
When it comes to the abolition of the Disciplinary Chamber (DC), composed only of nominees of the ruling coalition (as it is a new chamber of the SC), the President proposes to replace it by a newly named Chamber of Professional Responsibility (CPF). The 11 members of the new Chamber are to be selected by the President himself, out of a pool of 33 judges of the entire SC, drawn by a lot. The outgoing members of the discredited DC are to be dispersed throughout the actually existing chambers (or will have an option of early retirement). As one can see, the worst aspects of the DC will be retained by a new chamber going under a new name: its composition will be fully controlled by the President, and it is very likely that it will be composed of the judges already appointed by him, under a new dispensation. (Currently, a little over 50 percent of the composition of the SC are new judges, appointed by Duda on the recommendation by the newly constituted Council of Judiciary, so to choose 11 “reliable” judges out of 33 drawn by lot seems like an easy task). The distinction between the old DC and a new CPF is without a difference, at least when it comes to the political character of its appointment.
Moving to the second milestone: the unlawfully suspended judges, persecuted and harassed by the Minister of Justice with the use of the DC, will merely have the option of requesting the revocation of their suspension by CPF, and reinstatement to their former positions. No guarantee that they will be successful. So in the end, they will have a right to plea for reinstatement to substantially the same body as the one that had suspended them, unlawfully.
Finally, the third milestone. While there is one positive aspect of the presidential bill in this regard (reopening the path for judges to address preliminary questions of the CJEU: note the irony of a “privilege” to do something which is a prerogative of every European judge!), the worst aspects of the so-called “muzzle law” of December 2019 remain in place. In particular, judges are still to be legally prevented from, and will be disciplinarily prosecuted for, inquiring into the legitimacy of any judge appointed by the President. In other words, they will not be able to question and challenge whether any judges appointed by an unlawful, unconstitutional Council of Judiciary have been properly appointed. A long list of disciplinary offences, and an enhanced system of disciplining officials called “plenipotentiaries” (appointed by the Minister of Justice) of the Muzzle Law has been left in place. There is also a new offence created, that of refusal to perform judicial functions, which targets those judges who refuse to sit on a panel with improperly appointed judges. Removal from judicial office is a penalty for such a refusal.
To sum up: the first milestone is “implemented” in a deceptive manner, simply by changing the name of the institution to be abolished; the second, only partly, with no guarantee that the unlawfully suspended judges will be restored to their lawful offices, and the third, also only partly, by removal of only one aspect from a broad list of pathologies of the current disciplinary system for judges.
The Senate steps in
A fast-tracked action of the Senate removed some of the worst aspects of the bill adopted by the Sejm. The Senate’s bill (B-2 on our list) maintains the newly proposed Chamber of Disciplinary Responsibility but very ingeniously modifies the selection of its members. For one thing, it provides that the current “judges” of the DC lose their judicial status altogether and so cannot be members of any chamber of the SC (or any other court, for that matter), and that the pool of 33 judges, from which President will select the final 11, must consist only of judges who had served at least 7 years on the SC. In this way, the “neo-judges”, appointed on a recommendation of the newly and unlawfully reconstituted KRS, are not eligible. The combination of these two rules assures a composition of the new Chamber which would make it difficult for the executive to control.
The Senate also has written into B-2 the rule that all the judges suspended unlawfully by the DC will be restored to their earlier positions ex lege. It has removed the rule which punishes judges for refusing to sit on a panel with a judge deemed improperly appointed. In a very short period the Senate managed to repair the B-1, at least of its worst aberrations. It could do nothing about many other pathologies of the system (see below) because it was limited to the subject matter of the B-1.
In a curious piece of well-rehearsed political theatre, a large majority of PiS senators voted in favour of B-2, despite the fact that both before and after the adoption of it their party strongly condemned the Senate’s amendments. (All in all, 97 out of 100 senators voted in favour of the Senate’s amendments). No, it was not the case of a rebellion of senators against their party. Rather, it was a show to be performed on the eve of President van der Leyen’s visit to Warsaw. For a short moment, PiS has put on its best behaviour, for external consumption. But no one doubts that B-2, the Senate’s bill repairing the completely unsatisfactory Sejm’s bill (B-1) will be rejected by the Sejm, and that B-3 will be substantially identical to B-1 (give or take three or four insignificant technicalities). This is what PiS politicians, including deputies, keep saying publicly since the moment President von der Leyen left Polish soil. The amendments summarized above will go. And so will the illusion of goodwill by Polish ruling coalition vis-à-vis the EU milestones.
Beyond the milestones
Moreover, the milestones, although not even nearly implemented by the Sejm bill, are far from encapsulating the main defects in Polish system of justice, as systematically degraded by PiS government since it came to power in 2015. To consider them an accurate picture of the steps that the UE has been urging Polish government to take in this regard is a glaring pars pro toto, and the Commission’s modesty in translating its own (and CJEU’s) “acquis” re Poland is a case for grave concern. As I have argued, the dismantlement of the rule of law in Poland has been systemic and comprehensive, with each individual piece interacting and reinforcing many others in a toxic way. More particularly, four institutions, invisible to the milestones, had been thoroughly reconstructed by PiS in a manner contrary to European traditions and principles of the rule of law, and all three had been depicted by the CJEU and/or European Commission as in need of urgent repair, if the rule of law is to be restored:
1. The National Council of Judiciary (Polish acronym: KRS) which had its constitutional term of office brutally interrupted in 2017, and replaced by an institution of the same name, but appointed (in its “judicial” segment) by politicians belonging to the parliamentary majority rather than by peer-judges, with the effect that currently 23 out of 25 members of the KRS are directly appointed by the ruling coalition or the President. With its crucial role in the process of appointments, promotions, demotions and discharges of all the judges in Poland, this is a central toxic factor of the system. The CJEU in its C 791/19 judgment of 15 July 2021 observed, having reviewed several disconcerting factors about the KRS (paras 104-107), that they “give rise to legitimate doubts as to the independence of the KRS and its role in an appointment process such as that resulting in the appointment of the members of the Disciplinary Chamber” (para 108).
2. The overall, comprehensive system of disciplinary proceedings against judges. The “milestones” (and consequently B-1 and B-2) apply only to the apex of the system. But the pattern of harassment and persecution of judges for their judicial actions has been constructed at all stages of the judicial system. Again, in the just-cited judgment of CJEU of 15 July 2021, it was noted that, even outside the proceedings before the Disciplinary Chamber, there is “a risk that the disciplinary regime will in fact be used to influence judicial decisions…” (para 149), that the disciplinary regime in general may create “pressure and a deterrent effect, which is likely to influence the content of [judges’] decisions” (para 157), and also that “the courts” [note the plural!] involved in disciplinary proceedings “do not meet the requirement of independence and impartiality” while “the forms of conduct constituting a disciplinary offence are not defined by Polish legislation in a way that is sufficiently clear and precise” (para 188).
3. The Constitutional Tribunal has – for all practical purposes – ceased to exercise judicial review of a law adopted by the current legislative majority, and, after being captured by the political majority, has acted as an enthusiastic helper of the executive. That is why blatantly unconstitutional laws, such as B-1 (in our terminology) are unlikely to be invalidated by the high court meant to exercise constitutional scrutiny. The European Commission, in its decision launching the Art. 7 procedure back in December 2017 (the formal name: Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law), having cited several aspects causing concern (paras 109-112), concluded “that the adverse impact on the rule of law of the lack of an independent and legitimate constitutional review in Poland is now seriously aggravated by the fact that the constitutionality of the new laws relating to the Polish judicial system … can no longer be verified and guaranteed by an independent constitutional tribunal” (para 113).
4. The prosecutor’s office merged with the Ministry of Justice, with the Minister acting ex officio as Prosecutor General, and empowered to issue specific directives to any prosecutor on any investigation or prosecution pending. Since the Minister of Justice is at the same time the head of a political party belonging to the ruling coalition, the system of public prosecution is thoroughly politicized and corrupt. As the Commission said with concern in the launch of Art. 7, already cited immediately above, “t]he laws on the Public Prosecution Office merged the office of the Minister of Justice and that of the Public Prosecutor General, and increased significantly the powers of the Public Prosecutor General in the management of the prosecutorial system, including new competences enabling the Minister of Justice to directly intervene in individual cases” (para 169).
None of these aberrations is visible in the “milestones”. None will be changed when the recovery funds begin being dispensed to Poland. Each makes a mockery of the rule of law in Poland.
Leverage ceded
There are various explanations (though no justifications) which can be, and have been, provided for the strange myopia of the European Commission. One is about the urgency of giving funds to Poland necessitated by the influx of over 3 million of Ukrainian refugees, by the positive role Poland plays in responding to Putin’s war, and by the need to differentiate between anti-Putin Poland and pro-Putin Hungary. The second is about the blackmail which Polish government has successfully applied in the negotiations about an EU corporate tax for multinationals: a shrewd strategy dubbed “Poland’s hostage diplomacy” produced a dividend to the blackmailer. Also, there may be an understandable fatigue on the part of the EU decision-makers in dealing with the protracted Polish problem. Further, it should be emphasized that the decision of the Commission must still be endorsed by the Council (probably a formality in this case), and it does not mean an automatic release of funds: each tranche of payments will have to be preceded by a specific scrutiny under the “milestones”. As Ursula von der Leyen told a news conference in Warsaw, somewhat ominously: “We are not at the end of the road on the rule of law in Poland”.
But even a preliminary and “in principle only” decision is unwise, due to the sequencing factor. The Commission, willingly and with no obvious reason surrendered the important leverage it holds over a member state guilty of systematic breaches of the rule of law. The haste of the decision – taken without waiting for the B-3, in our terminology – is inexcusable. The facts on the ground are for everyone to see: judges and independent prosecutors are being harassed and suspended, the Constitutional Tribunal takes one anti-EU judgment after another, and the unlawful KRS keeps recommending new judges to the President who happily appoints them.
This is not the way a member state can assure its partners in the EU that it will use recovery funds responsibly. The landmark judgment of the CJEU of 16 February 2022 in which it dismissed an action for annulment of the conditionality regulation of December 2020 by Polish government (and, in a parallel judgment, by Hungarian government) should be recalled: “[T]here is a clear relationship between, on the one hand, respect for the value of the rule of law and, on the other hand, the efficient implementation of the REU budget, in accordance with the principles of sound financial management, and the protection of the financial interests of the Union” (para 148). It is hard to square this judicial pronouncement with the recent action by the Commission.
As I am writing these words, the statute in its final version (C3) has not yet been enacted by the Sejm. For all we know, it may still take on board the Senate’s positive amendments, and implement, in good faith, at least the “milestones”. But I would not hold my breath, and (to change the metaphor) would not bet on it.
