Why the Commission should ignore Poland’s ‘false compromise’

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

If the European Commission bends to Polish government pressure it will not fix the rule of law crisis but deepen it, argue Tineke Strik and Thijs Reuten. [EPA-EFE/RONALD WITTEK]

If the European Commission bends to Polish government pressure, it will not fix the rule of law crisis but deepen it, argue Tineke Strik and Thijs Reuten.

Tineke Strik is a Dutch Green MEP. Thijs Reuten is a Dutch MEP in the Socialist and Democrat group

In a provocative interview last week, Polish prime minister Mateusz Morawiecki came forward with a proposal to “ease” the rule of law crisis. The Polish government is willing to dismantle its unlawfully constituted disciplinary chamber if the Commission withdraws its threats of financial sanctions in return. Key to Morawiecki, it seems, is the disbursement of the Covid-19 recovery fund.

The Commission should not even consider going along with this false compromise. If it does choose to disburse the COVID-19 recovery fund or lift other sanctions before the PiS-government actually implements the European Court of Justice rulings, it is not fixing the rule of law crisis but deepening it.

Over the past five years, the Polish government has instrumentalised the Polish judiciary to serve its political agenda. One of the key issues here is the possibility for the disciplinary chamber – which only consists of judges appointed by the PiS-government – to punish judges, which can ultimately lead to their removal. If the disciplinary chamber is dissolved but the illegitimate appointment of its judges and the dismissal of other judges are not reversed, the rule of law in Poland won’t be restored. This is why the Court of Justice ordered Poland to dissolve the disciplinary chamber and suspend several key aspects of its disciplinary regime.

The Commission does not help Polish citizens in any way if it considers the dispute over the recovery fund to be settled, while the Polish government does not fully comply with the CJEU rulings. The PiS-leaders would not have to truly restore the independence of the judiciary but would simply be able to move the unlawfully appointed judges to other chambers and move along with their plans to further “reform” the judicial system. This is firstly unacceptable in terms of Polish citizens’ right to a fair trial but also undermines the interconnected nature of the orders of the Court of Justice.

During our visit to Poland last week, we spoke to several politicians and judges who know this reality. They know that the government’s project to destroy the rule of law in Poland started years ago and is far from completed. If the EU lifts sanctions before the CJEU rulings are actually implemented, which for example, means to reinstall the dismissed judges, the Polish government will only feel strengthened to pursue this path. Approving the Polish recovery plan would be the cherry on top of the cake, which the PiS government can propagate as a major success.

If the Commission lets go of its key leverage on the basis of Morawiecki’s false claim to restore the independence of the judiciary, it facilitates further deterioration of the rule of law in Poland. In fact, it also weakens the EU legal order as a whole. Other national governments in the EU who are tempted by a path to authoritarianism will feel empowered by such a compromise. It strengthens their hope that the EU legal order can be undermined to fit their political aims.

The rule of law is not up for negotiation like budget ceilings or tariff quota, and with good reason. It is the principle on which the EU founded its Treaties. A compromise on the independence of the judiciary would break this basic contract between all member states. As Guardian of the Treaties, the Commission has a duty to settle for nothing less than full respect of this core premise of the EU legal order.

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