Ranvir Nayar
WIf asked to name three things that define the EU, most people’s answers would likely include the common market, democracy, and common rules, regulations and standards. However, most may miss one key element that underlies all these facets — the law. At the foundation of the EU and its institutions was a strong and independent judiciary and a fair degree of harmonization of laws governing most aspects of commercial and social life in the bloc.
However, this very foundation of the EU — an independent judicial system — has been under attack in recent years, bringing the European Commission in Brussels face-to-face with a situation that is perhaps as unprecedented in its 50 years as that of Brexit. While the challenge of Brexit came from the western frontier of the EU, the judicial challenge comes from the eastern edge of its current borders. Two EU members — Poland and, to a certain extent, Hungary — have been implementing changes to their judicial system that seriously undermine the independence of the judiciary and go directly against EU norms and rules.
The moves began about four years ago, when the Polish government, run by the nationalist Law and Justice Party (PiS), brought in new rules that were aimed at removing any checks on its power. It began by putting party loyalists in the constitutional courts, replacing neutral judges, and attempting to sack the chief justice of the Polish Supreme Court.
PiS has claimed that judicial reforms were long overdue, as the judiciary in the country was inefficient and corrupt and hence needed streamlining, as well as its processes overhauling. But the reality on the ground is starkly different from what the ruling party claims. The common courts are no longer independent and judges and prosecutors who don’t toe the party line now face disciplinary proceedings and public humiliation.
For almost two years, the European Commission tried to engage the Polish government in discussions, but eventually it was obliged to send the file to the Court of Justice of the EU in December 2017, marking the opening of an unprecedented legal challenge. Poland duly rejected all charges and said that the judicial reforms were not only a necessity but also an internal matter and, hence, brooked no interference from the commission.
Since then, Poland has been upping the ante on the issue. It has brought in a series of new measures aimed at further compromising the judiciary. It has also constituted a disciplinary committee for overseeing the judiciary and penalizing or even imprisoning judges who fall out of line, even on the content of their judgments.
The matter is again likely to reach the European Court of Justice, which will take months if not years to rule one way or the other. The clashes between Warsaw and Brussels have already lasted far too long and threaten to add to the uncertainties facing the EU, even as it grapples with other serious threats and challenges, such as relations with a post-Brexit UK, the rise of the extreme right within the EU, and the budget for the next seven-year period, which needs to be passed this year. The battle with Poland is already impacting the EU’s harmonized legal system. In 2018, an Irish court refused what ought to have been a routine drug-related extradition to Poland, citing concerns about fairness and the independence of the Polish judicial system. However, the threat posed by the clash between Poland and the EU is much larger. If Warsaw continues to hurtle down the path of crushing an independent judiciary, other EU countries’ courts could decide to isolate Polish courts and not recognize or enforce their rulings, as they are today. This could then go on to threaten businesses all across the EU, as any commercial dispute involving a Polish court or a Polish company could become impossible to disentangle. The clashes between Warsaw and Brussels have already lasted far too long and threaten to add to the uncertainties facing the EU. Worryingly for the European Commission, Poland’s moves are seemingly being aped by neighboring Hungary, where strongman Viktor Orban’s conservative government has also taken measures to undermine the independence of its judiciary. But resolving the conflict with Poland is also very complicated, as there is no precedent for such moves and the commission will want to avoid the catastrophic scenario where the common market. -AN
