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On Tuesday, the European Commission asked the CJEU to impose financial penalties on Poland for failing to comply with rulings ordering it to suspend the Disciplinary Chamber. It is a clear sign that the Law and Justice party’s campaign against judicial independence has finally hit a wall in its. But so did the European Commission. The situation in Poland is so bad that Eurocrats in Brussels can no longer pretend not to see it.
Kaczyński knows exactly how to hit the EU’s weak spots
The back and forth between the European Commission and the Polish government began in January 2016. At that time, the Commission was mainly concerned about PiS’ efforts to take over the Constitutional Tribunal by packing it with the so-called "stand-in judges". No one expected that Julia Przyłębska, whom Jarosław Kaczyński called his "social revelation", would become the head of the Constitutional Tribunal, and that the institution itself would turn into a slow, inefficient instrument of the ruling party. No one expected that the ruling camp would move against other courts, try to seize power in the Supreme Court, and establish a Disciplinary Chamber meant to intimidate judges who dared to oppose the party line. Hoping that Kaczyński would finally cave in, in January 2016 the Commission tried to shame and scare the PiS government. That the leader of Poland’s ruling party would adopt an extremely anti-European stance was simply inconceivable.
Instead of pulling back, Kaczyński chose to go on a head-on collision course with the EU. Meanwhile, instead of confronting him, the Commission started to think about how to appease the Law and Justice party, or rather how to strike a rotten deal with Kaczyński. The logic was: with Brexit looming, one should not create new divisions within the EU, but try to understand Poland’s new authorities.
The Law and Justice party chairman perceived EU’s appeasement attempts as a sign of weakness and moved on, even though with each further step he took, Poland was losing its reputation as a mature, serious country that can be relied on. In 2019, the new European Commission decided to repeat the mistakes of the previous one. It tried to get along with PiS until it finally hit a wall. The disciplinary procedure under Article 7 of the EU Treaty turned out to be dead, complaints to the CJEU were filed late, the mechanism making the disbursement of funds from the EU budget conditional on respecting the rule of law was watered down and its launch was postponed. Initially, the Commission even tried to look away when the Polish government was blatantly ignoring the CJEU rulings.
The EU enthusiasm of many Poles has waned
This cannot go on. Letting the Polish government dismantle the independence of the judiciary threatens the EU understood as a community bound by law. Although it would certainly still like to try to reach a compromise with PiS, the European Commission has no choice but to act decisively. Kaczyński can now either pull back or lead Poland out of the EU.
The problem is that the Commission should have acted more decisively already in the summer of 2017 when PiS launched its attack on the Supreme Court, or in December 2019, when it pushed through the so-called "muzzle law" meant to intimidate judges for criticizing the government’s judicial overhaul.
By avoiding a head-on confrontation with Jarosław Kaczyński, the European Commission has not only lost time. It eroded the trust in EU institutions, undermined the faith in the agency of our European community, and diminished the EU enthusiasm of many Poles. I’m not sure if it will be possible to regain it.
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