Yesterday the European Commission released a statement that it has sent a so-called “Reasoned Opinion” to Poland regarding the justice reform enacted by the government of the Law and Justice Party. The Polish government has one month to comply with the directive, after which the Commission can decide to bring the case to European Court of Justice.
The conflict between the European Commission and Polish government essentially revolves around the independence of the judiciary. On December 20, 2017, the Commission stated:
Over a period of two years, the Polish authorities have adopted more than 13 laws affecting the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary. The common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.
Poland has retorted that it is in fact securing the rule of law by removing “communist” and “corrupt” judges.
As I have explained before, the Polish situation clearly exposes the double standard of the Commission, which has in fact “systematically enabled” the “executive and legislative branches” of the Albanian government to take over the judiciary and wholesale “interfere in the composition, powers, administration and functioning of the judicial branch” under the rubric of “Justice Reform.”
The Commission and the EU Delegation in Albania and its “independent experts” of EURALIUS have in fact continued to so, as was clear in the case of the unilateral appointment of Arta Marku as “Temporary” General Prosecutor, and the recent (failed) attempts to allow her – unconstitutionally – to install new prosecutors before the vetting has ended and the High Prosecutorial Council has been installed.
However, it is not enough to draw parallels and point out contradictions between the Commission-sponsored justice reform in Albania and the Polish justice reform attacked by the Commission. We have to understand that the efforts of the conservative Polish government to bring the judicial apparatus under its control are the result of the very process of EU accession.
The EU accession process gives enormous leverage to the executive to implement legislative reform in order to conform to the acquis communautaire. The rhetorical force of the statement “The EU wants this” has pushed many a legislative initiative through parliament, because it trumps any other concern or argument. This has been obvious in Albania, where the Socialist majority has pushed through justice reform legislation drafted by “experts” that now clearly turns out to be painfully deficient.
But the more damaging and enduring result of this accession process is also that it instills a mindset into the executive that it in fact can unilaterally implement reforms with little check from either parliament or judiciary. In other words, through the way it empowers the executive, the EU accession process nourishes the idea that the “rule of law” can be arrived at through executive power alone. In spite of all the fluffy words about “rule of law” and “balance of powers,” the EU accession process teaches a very different political lesson about how to wield power and rhetorics to unilaterally change the law to your advantage. It is precisely this idea that underlies the current actions of the Polish government. The European Commissions is now simply reaping what it sowed.
This is obvious from looking at the politicians now implementing the Polish justice reform. Prime Minister Mateusz Morawiecki was deputy director of the Accession Negotiations Department in the Committee for European Integration, where has oversaw and participated in the negotiations for Poland’s EU accession. Deputy Prime Minister Beata Szydło studied management of local government in the European Union, while Minister of Justice Zbigniew Ziobro is a former Member of European Parliament. These are people who are very well informed about how the European Union works and what its principles are; they do not act out of ignorance.
On the contrary, they hold up a mirror to the European Commission and say: “You taught us how to do this.”