Last Thursday, the Polish legislature passed measures that would allow judges to face disciplinary action if they rule on cases in a way with which the government disagrees. This legislation will significantly reduce the autonomy of judges, giving that authority to the Minister of Justice, Zbigniew Ziobro. Poland’s ruling party, the Law and Justice party (PiS), has made repeated attempts at constraining the courts and their power. According to CNN, the passage of this legislation “comes after four years of efforts by PiS to tighten its grip on the courts and remove judges from the Supreme Court that it finds to be politically objectionable and replace them with what critics claim are political appointments.” The same day this legislation passed, the Polish Supreme Court ruled any verdicts made by the newly appointed judges were subject to questioning and that the chamber set up to punish judges “did not meet the EU’s requirements of judicial independence, and are therefore not legitimate courts”. Unfortunately, the European Union (EU) has very little power to punish Poland for these aggressive acts toward their independent judiciary. If they were to pass sanctions on Poland, it would require unanimous approval of all EU member states, a Herculean task, as Hungary will likely not vote against Poland. Similarly, many countries facing their own turmoil and issues are not quick to throw the proverbial stones at glass houses and face the deeper examination of their own questionable acts. As such, the EU sits near powerless to place any significant sanctions on Poland as protests continue throughout the country in support of maintaining the independence of the judiciary.
It likely does not require a tremendous amount of explanation to say that the actions of Poland’s PiS party are entirely antithetical to the principles of any free society. An independent judiciary is one of the most crucial aspects of a democratic society as it acts as a check on the actions of an out-of-control legislature or executive. In this way, the legislation passed by PiS violates these principles, and they deserve harsh condemnation for it. Perhaps even more problematic, though, is the response or lack thereof. The European Union, which has the most direct capability to condemn Poland formally, is unable to invoke Article 7 due to its unanimity clause. The article that allows the EU to strip a member of its voting rights, if it feels the terms of membership have been breached, but the vote must be unanimous. Problems such as this will persist and continue to crop up throughout EU countries if they do not actively work to condemn countries that perpetrate these violations. The idea of unanimous action is certainly admirable and acts against the interests of a plurality ruling the whole, but to the extent that it impedes any action, it is impractical. It makes the European Union little more than a showpiece if it cannot even move to enforce the values for which it supposedly stands.
The lack of response from other EU member countries is just as problematic. Fear of scrutiny turning to one’s own country is not an acceptable excuse for refusing to condemn clear violations of a society’s free and fair justice system. In fact, it makes other EU member countries complicit in the PiS’s demolition of judicial independence. CNN’s Luke McGee explains the situation perfectly: “The EU is in a tight spot here. If member states start undermining or not recognizing European law, there is not a great deal that the EU institutions can actually do about it”. In that way, perhaps the greatest possible critique of the lack of response from the EU and its member states is the precedent they are setting. By making no movement to condemn an action as egregious as Poland’s passage of this legislation, the EU provides no incentive for countries to follow the laws they set forth or even commonly accepted principles of preserving free and fair government systems. If there will be no repercussions for breaking these laws, what reason do member states have to follow them? As such, the EU’s inability to truly condemn Poland in any substantive way will not only be detrimental to the Polish people and the independence of their judiciary, but it will also set a dangerous precedent of inaction for the rest of the member states.
There is no question that the situation in Poland needs to change. The PiS must not be allowed to continue to infringe on the autonomy of the judiciary, but as long as they do, the European Union needs to adapt to equip themselves to adequately address this issue and similar ones that may crop up as time progresses. This will require a restructuring of the EU’s enforcement and sanctioning mechanisms. The requirement of a unanimous vote to condemn or impose sanctions on a state must be altered as it is near-impossible to reach that level of agreement among such vastly different states, which leaves the EU powerless in situations such as this. Even lowering that required threshold to two-thirds of the twenty-eight member countries would provide enough widespread support to give a decision legitimacy while not being impossible to reach. Perhaps the more systemic issue is the unwillingness of member states to move to sanction others for fear of scrutiny turning to their own transgressions. This is a far more difficult issue to solve.
The EU must begin to effectively punish countries that do not follow the law but moving toward a policy of harsher condemnation is not likely to win many supporters if they fear that punishment coming their way. As such, there should be an institution of some incentives to follow these laws and some time for these other member states to begin to right some of these wrongs. This grace period could perhaps be a year or so, providing enough time for these states to begin concrete steps to realign some of their policies and institutions with EU law. In that way, it cultivates an environment where punishment for transgressors is possible without fear of immediate repercussions. This evolution of laws and enforcement mechanisms should involve all the member states, again, so they do not feel as if they are playing a hand in their own eventual punishment, which would further stymie the process. One of the core components of any supranational organization such as the European Union is a cooperation between the member states. Developing a plan for cultivating the ideals of free and fair government within the EU should involve all its members. A collaborative plan and agreement would make all members feel valued, and should, therefore, have a more practical purpose and application.
In a discussion with CNN, Agata Gostyńska-Jakubowska, a senior researcher at the Centre for European Reform, explained that “in addition to the punitive measures currently being taken, the EU needs to better explain to European citizens why the deterioration of the rule of law is so dangerous” to their respective states and the EU as a whole. “We need not only sticks, but carrots. We need to explain to citizens in those countries why the rule of law matters,” Gostyńska-Jakubowska added. Incentives are essential and should likely include more than the absence of punishment. Again, this is an issue that should involve discourse and debate among the member states. Whether that be special trade privileges or perhaps rebates of a percentage of their years due to the organization, it is imperative that there is a greater incentive for member countries to follow the laws of the European Union. Without effective and legitimate policies in place to enforce the EU’s policies and membership requirements, they will remain powerless in the face of clear violations of democratic principles and their own requirements, such as the developments in Poland. As such, the implementation of a functioning and efficient system of punishment and reward must be realized in the EU so that they may actively do their job in stemming the tide of anti-judiciary legislation in Poland.