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In the weeks following the July 15th CJEU ruling declaring the so-called Disciplinary Chamber not an independent court in the European sense of the word, it became clear that the authorities at the helm of Poland’s Supreme Court won’t bother implementing the ruling, nor that the Polish government will regard it as a legally binding judgment. The same goes for the July 14th decision of the CJEU to issue an interim measure meant to stop the Disciplinary Chamber from acting as a political tool used to prosecute judges and prosecutors.
All of this has been enabled by the unlawfully composed Constitutional Tribunal which ruled on July 15th that the CJEU had no right to implement measures concerning the functioning of Poland’s judicial system because it is the sole competence of the member state. To put it short, the Polish government interprets this competence as the power to arbitrarily create institutions, introduce them as courts despite their lack of even the most fundamental democratic traits such as independence, and carry on as if nothing ever happened. And thus – a disciplinary regime for judges that is incompatible with EU law continues to operate in an EU member state.
To be quite frank– all of this reminds me of the anecdote of Caligula’s horse – the story of Incitatus. Since the Roman emperor could do whatever he pleased, even declare his horse a consul – all his subjects had to comply with his decisions. But calling a horse a consul does not make him one. Creating a politically controlled entity and packing it with "judges" nominated by members of the politicized National Council of the Judiciary does not magically make it a court that can effectively pass judgments in a democratic state of law.
Well over 2000 Polish judges and prosecutors signed an appeal urging the Polish government to comply with rules that govern an international organization Poland willingly became a part of. And yet the deputy minister of justice, Marcin Romanowski, recently stated that he was not worried about the possible financial sanctions which could be brought onto Poland for non-compliance with the interim measures issued by the CJEU. He additionally declared that he wishes to see Poland remain a part of an EU which is a "Union of nation-states, where all states are treated as partners, and not in the way Poland and Hungary are currently treated".
As a lawyer grappling with the ongoing breakdown of Poland’s rule of law, there is only a handful of things I fear more than this sort of narrative. The so-called "union of nation-states" leads us to believe that the idea is to create a new type of the EU. Namely, a Union which is no longer a Union of European values, but an unnameable conglomerate of countries located on the same continent. Without the non-debatable implementation of art. 2 values – respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities- Poland and Hungary are only the first two countries to go, but certainly not the last.
Human dignity and minority rights are being disrespected in both member states – with Hungary currently at the forefront with its "anti-homosexual propaganda" laws. But Poland is catching up – with local governments losing regional development funds due to adopting anti-LGBT declarations that have been used to create "anti-LGBT zones". Equality continues to be under attack – with the sham Polish Constitutional Tribunal declaring abortion in cases of severe fetal deformity or untreatable illness unconstitutional.
In both countries, the rule of law is lying flat on the ground. And now, Poland’s ruling party is pushing through new legislation aimed at taking over the biggest independent TV station in the country – TVN. This move comes just months after the state-run oil giant Orlen took over Polska Press – the publisher of 20 of the 24 existing local dailies, 120 local weeklies, and 500 web portals. Even though the transaction was temporarily held off by the Court of Competition and Consumer Protection – the interim measure was blatantly disregarded and editorial offices were packed with ruling party acolytes. That is how freedom of media and press – the fourth pillar of democracy - is being undermined in a seemingly democratic member state.
All the while, the EU remains concerned. All I can say is that I appreciate the concern, but I remain skeptical whether the bluff will ever be called. Additionally, negotiating EU funds with a country whose government clearly acts against the interests of its own people and the democratic order is nothing less than enabling an addict. On July 14th, the Polish Prime Minister claimed that he spoke to Ursula von der Leyen about the EU recovery fund. He made sure to mention that he himself brought up the topic of the rule of law, which he went on to call "a buzzing wasp that flew into a room and has to be let out in order for more important matters to be discussed". But watching a democracy being dismantled is much more painful than a wasp sting.
While Mr Morawiecki is talking to Ursula Von der Leyen, his motion meant to question the primacy of EU law over national legislation lies in the sham Constitutional Tribunal and awaits to be heard on August 31. Didier Reynders’ request to withdraw the motion was simply ignored by the Prime Minister.
Thus, EU institutions should not be concerned, alarmed nor shocked. What they need to do is act effectively within the boundaries of all the power available to them. Poland is already on the path to polexit in the sense that it refuses to play by the rules. The question remains, however – how will the EU react when it turns out that while it was playing chess, the member state on the other side of the table was sitting there with a baseball bat?
* The author is lawyer for the Civil Development Forum (FOR), attorney-trainee at the Warsaw Bar Association, and a PhD candidate at the Criminal Law Faculty at the University of Warsaw
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