Cohesion and the Rule-of-Law: the EU and Polish Judicial Reforms

By: Claire Ren, Swayam Sinha, and Courtney Weigal

Under pressure from the European Union, the Polish Parliament proposed amendments to its judicial reforms ahead of the March 20 deadline set by the European Commission. The European Commission is still considering these changes, and while they fall short of the recommendations that the commission issued in December 2017, they could represent a first step towards reconciliation. Since 2015, the Republic of Poland had been instituting reforms to its judicial system. Among other things, the country lowered the retirement age of Supreme Court judges, claiming that many of the current judges were mere holdovers from the previous Communist regime. As a result, half of the judges on the court will now be forced into retirement, giving the Law and Justice Party (PiS), which currently controls both the executive and legislative branches, the ability to fill those spots with its own judges. Additional developments have led to a complete recomposition of the Constitutional Tribunal, a court that judges the constitutionality of legislation. Three judges who had been lawfully nominated for the Tribunal were not allowed to take office, while three other judges with no legal mandate are sitting in their place, undermining the court’s ability to conduct independent constitutional review. As a result, the Polish judiciary is not expected to recognize the reforms as unconstitutional without international pressure. The EU has condemned Poland’s judicial reforms as undemocratic because they severely weaken the Polish system of checks and balances and so increase the risk of corruption. Democracy, the rule of law, and a healthy system of checks and balances are essential values to the EU and are part of the Copenhagen criteria for joining the EU. In December 2017, the European Commission issued recommendations for the Polish government and set a deadline of March 20 for the country to address issues related to its judicial reforms. It also threatened to trigger Article 7 of the EU Treaty, which would suspend Poland’s voting rights in EU decisions. The amendments proposed by the Polish Parliament in response to the concerns brought up by the EU include equalizing the retirement age of male and female judges and reducing the role of the Justice Minister in the process of removing court presidents and vice presidents. While they address some of the Commission’s concerns, these amendments do not satisfy entirely the Rule of Law Recommendation. Despite the Commission’s advice, the Polish Parliament has not announced any intention of restoring the independence and legitimacy of the Constitutional Tribunal by ensuring that its judges are lawfully elected, maintaining the retirement age for current judges, and removing the discretionary power of the President to prolong the mandate of Supreme Court judges. Under these circumstances, however, going forward with Article 7 appears to be excessively severe and could antagonize Polish citizens. The threat of Article 7 is also undermined by the fact that it is subject to a unanimous vote, and Hungary has already announced it would oppose the motion. Further, Poland’s decision to negotiate with the EU about these issues also makes this motion rather unnecessary. On the other hand, failure to act could lead to future undemocratic reforms being instituted in both Poland and in other member states such as Hungary, Slovakia and the Czech Republic. A potentially more effective approach would be to threaten to sever future funding, which the EU could make contingent on respect for the rule of law. More specifically, the EU should condition the distribution of the cohesion fund, which is a development aid fund aimed at member states whose Gross National Income (GNI) is less than 90 percent of the EU average, on a rule-of-law criterion. This proposal would not target Poland specifically, but would rather seek to prevent any future undemocratic reforms in any member state. Furthermore, the EU should specify a time period within which the most pertinent issues, such as the independence and legitimacy of courts, must be resolved to avoid a long process that would end up in a stalemate. Not abiding by this deadline would trigger a loss of this EU development aid. If negotiations with Poland ultimately do fail, the European Commission should take Poland to the European Court of Justice (ECJ), as it did when Hungary instituted a similar mandatory retirement age for judges in 2012. The European Commission won the case and Hungary ultimately complied with the ECJ judgement by instituting a new retirement age of 65 for all judges, and reinstating and compensating those who had been forced out. However, a loophole in the amended law prohibited the reinstatement of judges in leadership positions that had already been filled by new judges, and Hungary’s ruling Fidesz party continued its attack on constitutional checks and balances. As this solution is very adversarial and showed limited results in Hungary so it should be a last resort in the Polish case. However, it would at least signal to the rest of the union that Brussels will not tolerate dissent on fundamental values such as democracy. Implementing any kind of sanctions on Poland, as has been suggested, would risk exacerbating the East-West divide that already exists within the EU, along with alienating the Polish people. However, the course I’ve proposed in this article acknowledges cultural, historical, and political differences while asserting that values such as democracy and human rights are requirements for member states. While some may see the EU’s actions as an attack on sovereignty, this proposal seeks to keep member states democratic and just, and to punish those who wish to go against EU values, while simultaneously avoiding harsh sanctions or punishment. This policy is to reward those who do follow the EU’s regulations rather than attacking and ostracizing those who do not. In other words, this is not about taking independence away from member nations, but rather about making sure that member nations stay committed to democracy and the rule of law.