Parts of the judicial reform in Poland could violate European constitutional standards. This was decided by the European Court of Justice (ECJ) on Tuesday. It is already the second defeat of the national conservative PiS government in no time. Only a month ago, the European Supreme Court had declared compulsory retirement of judges unlawful. Thus, the Law and Order Party had tried to remove politically unwelcome judge early from office.
Now the ECJ has criticized the composition of a central body in the appointment of judges and thus indirectly questioned: The Regional Judge's Council (Krajowa Rada Sadownictwa, KRS), which selects judges candidates and proposes to the President, namely - as PiS has established - assembled by Parliament. As a result, legislative power has a significant impact on the judiciary - a violation of the principle of separation of powers.
In the Polish parliament, the Sejm, PiS already has a whopping majority since 2015. The party leader, Jaroslaw Kaczynski, wants to rule this out and therefore tries to bring the courts into line. First it was the Constitutional Court's turn, all lower courts should follow. Kaczynski believes that most of the judges in Poland are corrupt and incompetent, or rescued from Communist times. They could slow down its national-conservative reform program. (Read a detailed background report here)
What exactly does the ECJ dictum mean?
Immediately after the publication of the ECJ decision PiS politicians hurried to assure that they would respect the judgment and not escape the jurisdiction of the EU. But it is still largely unclear what the dictum really means: Are all now all, about 500 judges, which has appointed the National Judicial Council to replace again? And what about the judgments they have made? How should the Regional Judiciary Council be put together in the future? What does this mean for the highest disciplinary chamber of the judiciary? Whether she and the county magistrate act independently enough, is now to test the Supreme Court in Warsaw. In a few months, the ECJ could get involved more clearly and directly, because there is still a lawsuit pending throughout the justice system.
In the long term, the critical rulings of the ECJ ruling are a domestic political problem for the PiS government: over and over again, EU bodies certify that the country is not one hundred percent satisfied with the standards of the international community. Poland therefore already has a Article 7 procedure on its head: The EU Commission is checking whether the rule of law in Poland is in principle still guaranteed. At the end of this process, Poland could theoretically even lose its right to vote in the Union. Nonetheless, the EU - as polls show - is extremely popular between Oder and Bug. Many voters could blame the PiS for making Poland impossible in Brussels.
Poland and Hungary block EU decision to strengthen the rule of law
Again and again, PiS politicians had argued in the past that the design of the judicial system in Poland did not fall into the competence of the Brussels courts at all. This question, as a spokesman for PiS Prime Minister Mateusz Morawiecki had recently said, must first be decided by the Polish Constitutional Tribunal. For the government that would be a comfortable solution: the court is finally already the same and occupied with PiS loyalists.
The differences with Brussels were also evident on Tuesday, when Poland, together with Hungary, blocked an EU decision to strengthen the rule of law at a meeting of European ministers. Therefore, the Finnish EU Presidency could only publish the text for assessing the annual rule of law dialogue of Member States as a separate statement rather than a unanimous conclusion. The dialogue runs independently of the infringement proceedings against Poland and Hungary.
