Poland has blinked, informing the European Union that it plans to shut down a controversial disciplinary chamber that had the power to remove judges considered hostile to the country’s warning party. But is the move merely a tactical retreat?
Poland last month received an ultimatum from the European Union: shut down its controversial disciplinary chamber or face large fines.
On Tuesday, the Polish government met the EU deadline to respond, and stated in a letter to the Court of Justice of the European Union (CJEU) that the chamber would cease operations.
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The disciplinary chamber, part of the Polish Supreme Court, has since December 2019 had the jurisdiction to fine or remove judges accused of being politically biased or of criticising the government.
The CJEW said the chamber was “incompatible” with EU law.
The disciplinary chamber has been inactive for the past two weeks, as the Polish government decided how to proceed.
A European Commission spokesperson, Christian Wigand, confirmed on August 17 that the letter from Warsaw had been received, and would now “analysed”.
According to Patryk Wawrzyński, a political science researcher at Poland’s Nicolaus Copernicus University in Toruń, Poland’s decision to meet the EU deadline is an attempt to make peace amid a separate dispute with the United States.
Last week Poland’s parliament passed new media ownership legislation that threatens non-EU TV stations in the country, including the TVN network, owned by US giant Discovery, which represents the largest single US investment in the country.
Discovery has called the legislation discriminatory, and the US has threatened to retaliate with travel bans on leading Polish politicians.
“Just after experiencing a major parliamentary crisis and during a dispute with the United States, the Polish government has decided to step back from its confrontational position against the European Commission,” Wawrzyński tells Emerging Europe.
“Last week Jarosław Kaczyński, the leader of Law and Justice (PiS; Poland’s ruling party), scored a major victory in parliament – the passing of media ownership law, most likely an attempt to silence TVN 24, a television station highly critical of Kaczyński and his politics,” UCL School of Slavonic and East European Studies lecturer Katarzyna Zechenter tells Emerging Europe.
Wawrzyński believes that the disciplinary chamber climbdown is proof that international pressure works.
“The decision on the Supreme Court’s disciplinary chamber proves that international pressure may effectively protect democratic standards and the rule of law in Poland,” he says.
Wawrzyński nonetheless acknowledges that the decision could have also been primarily motivated by monetary considerations.
“It shows that the ruling party understands power play – as diplomatic measures have failed, the Commission has threatened to limit the flow of European funds to Poland. This defeat reaches far beyond prestige and branding, it is another failure of the ‘populist revolution’,” argues the scholar.
No genuine reform
Whatever the motivations, the Polish government’s reaction appears on the surface to be a positive development.
However, as Emerging Europe has previously reported, a decision in line with the Commission’s requests does not necessarily represent genuine reform to the country’s justice system.
Katarzyna Zechenter correctly predicted the possibility of Law and Justice bending to the demands of the Commission in a previous comment for Emerging Europe. And just as she did last month, she now reaffirms her opinion that this does not represent a genuine step in the right direction.
“Jarosław Kaczyński has decided to dissolve the judges’ disciplinary chamber to meet EU demands, in an attempt to diffuse or, at least, postpone a row with the EU. This thus mitigates the issue that Poland may eventually have to pay a financial penalty. However, Kaczyński has made it clear with his actions that his nationalistic vision of Poland is more important than the country’s membership of the EU, supported by 89 per cent of Poles in a 2014 survey,” argues Zechenter.
“I believe that in a few months Law and Justice will reintroduce a slightly changed disciplinary chamber. Kaczyński’s populist revolution cannot exist without political control over the judiciary. Courts and their rulings must support the party’s political line and help new political elites play a punishment/reward card,” Wawrzyński adds.
Agnieszka Bień-Kacała, an associate professor in the field of constitutional law at the Nicolaus Copernicus University also says that the Polish response is “not a surprise”.
“Research on illiberal constitutionalism shows that the ‘pushing the limits’ play, in which Poland and Hungary engage with EU institutions, is a political and legal game, comprising of a cynical approach to criticism and the combination of different variations of backing off,” Bień-Kacała tells Emerging Europe.
“This power play includes: (1) taking two steps forward and one step back in advancing the illiberal system; (2) adopting cosmetic changes; (3) reaching the same result from a different angle; (4) planning on wearing down critical voices from various institutions, rendering them unable to keep pace with some major or minor but important and no less questionable changes,” she explains.
Bień-Kacała says that the chief reason for scholars to doubt that yesterday’s decision will bring about positive change to the country’s justice system is past experience.
“Many of the components of the heavily-criticised reforms (introduced by Law and Justice) were put forward under the guise of advancements, such as the fight against corruption or addressing social issues and reforming the structure of the judiciary. But in reality, they more often than not compromised judicial independence.”
She offers the case of the Białowieża Forest as a telling example of what the future of the disciplinary chamber may look like. The deforestation of the region was in 2009 found to be in violation of EU law.
“The violation of EU law may be seen as ‘business as usual’ within member states as an honest mistake seems to be hard to avoid. However, in this Polish case, the violation was deliberate, with Poland evoking sovereignty of the state against its European commitments. This was the first step towards authoritarianism,” argues Bień-Kacała.
In 2017, the CJEU adopted measures to address the issue and the Polish courts implemented reforms that banned deforestation Białowieża Forest. However, according to Bień-Kacała, deforestation continued uninterrupted, with the Polish government nevertheless insisting that CJEU demands had been met.
Patryk Wawrzyński echoes this sentiment, arguing that, “today is a victory for democracy and the rule of law in Poland, but it is not certain that this result will be long-lasting.”
“Taking Political control over the judiciary and its role in rebuilding a state are core objectives within Jarosław Kaczyński’s ideology. The disciplinary chamber was planned as a ‘punishing arm’ of the new political elites which can eliminate troublemakers and protect supporters inside the judiciary. Now, they need a new narrative to explain why the government has failed to reform the Supreme Court, measures which were meant to end the supposed lawlessness of judges,” concludes Wawrzyński.
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