The Polish Lesson: The EU’s Rule of Law Revolution
In 2018 the dispute over the rule of law in Poland produced a significant breakthrough in the process of the European integration. The Court of Justice of the European Union (CJEU) declared itself competent to deal with complaints about “systemic” violation of the rule of law in EU member states. Moreover, the European Commission decided to use the infringement procedure to halt the destruction of the independent judiciary in Poland. Although EU institutions acted in line with EU treaties, these decisions had a truly revolutionary character. In the past, the Commission and the CJEU were unwilling to make use of treaty provisions that would have allowed them to intervene when the independence of the judiciary in an EU member state was at risk.
In 2012, when the Hungarian parliament adopted a law leading to the early retirement of judges, the case was brought before the CJEU only on the grounds of age discrimination. The Commission dared not claim that Hungary had violated the fundamental principle enshrined in Article 19 (“efficient legal protection” by independent courts). And it took two and a half years for EU institutions to take this path in the case of Poland. Thus, the new role of the CJEU sets a significant precedent. It is complemented by additional instruments in the draft EU budget, including provisions to support civil society groups and funding conditioned on adherence to the rule of law. Before the Polish case, the EU considered the Rule of Law Dialogue and Article 7 to be the only viable options for tackling rule of law violations.
How the Revolution Unfolded
Until 2018, the narrative that the EU was unable to confront national governments that ignore fundamental EU values or systemically violate constitutional norms prevailed in the public discourse. Neither the Rule of Law Dialogue the Commission initiated with Poland in January 2016 nor the Article 7 procedure that it opened with the country in December 2017 (with the involvement of EU member states) produced any results. By April 2018, Poland had largely completed the overhaul of its judicial system, abolishing the separation of powers.
The breakthrough that subsequently took place did not require treaty changes, despite frequent claims to the contrary. It took only the thoughtful application of existing treaty provisions. The CJEU played the key role in this – but it would have been inconceivable without the engagement of other actors.
The first step was made on 27 July 2017, with the initiation of the infringement procedure on the law on the ordinary courts. The Commission raised two concerns. One of them, related to discrimination on the basis of gender (due to the introduction of different retirement ages for female judges and male judges), was nothing exceptional or unusual. But the other – which gained little public attention – involved a broader concern: whether providing the minister of justice with discretionary power to extend the mandate of judges who have reached retirement age, as well as to dismiss and appoint court presidents, would undermine the independence of Polish courts. Most importantly, the Commission referred to the article of the EU treaty that enforces a general norm: EU member states’ obligation to “ensure effective legal protection”. With this, the Commission indicated that it was willing to enter uncharted territory: involving the CJEU in an assessment of systemic violations of the rule of law in an EU member state – and not just in standard cases of non-compliance with (mostly) secondary EU law, which are usually covered by the infringement procedure. This move was highly significant. While the Commission still hoped that political dialogue with the Polish government and pressure applied through the newly launched Article 7 procedure – popularly referred to as the “nuclear option” (due to the theoretical possibility of withdrawing voting rights of the country in question) – would suffice, it also carefully explored the truly groundbreaking path through the CJEU.
The second step was the landmark verdict on the salaries of Portuguese judges (C-64/16 Associação Sindical dos Juízes Portugueses) the CJEU issued in February 2018. The CJEU argued that it had the right to assess whether courts in member states operated in line with common EU rule of law principles. It stated that “every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection”. Legally and politically, this was a milestone, providing the CJEU with a way to defend the rule of law against systemic violations in Poland (and other EU member states).
The third step came on 2 July 2018, when the Commission followed the recommendations of the paper “Where the law ends... The collapse of rule of law in Poland - and what to do” (co-authored by ‘Europe’s Futures’ fellows Piotr Buras and Gerald Knaus) and the calls from civil society groups by opening the infringement procedure against the Polish Law on the Supreme Court (which relates to the retirement of judges with immediate effect, and thereby erodes their independence). Again, EU member states’ general commitment to ensuring efficient legal protection from independent courts was the basis for this complaint (in reference to Article 19 of the Treaty on the Functioning of the European Union, or TEU). This formally began the legal fight against the systemic violation of the rule of law in Poland. No less importantly, the Commission asked the CJEU to implement interim measures (which suspended the early retirement of Polish Supreme Court judges) before handing down a judgment.
The fourth step came in August 2018. The Polish Supreme Court referred preliminary questions to the CJEU on whether judges affected by early retirement rules (which the Commission questioned in the infringement procedure) should continue to adjudicate on important cases. And it ordered the suspension of the law in question until the decision by the CJEU. The Supreme Administrative Court made a similar decision on the Polish National Judiciary Council, suspending the latter’s nominations of judges for the Supreme Court and related regulations that had been referred to the CJEU due to flaws in the competition procedure. The Polish government disregarded these measures, but the Supreme Court followed them. This was another important sign that the instruments provided by the EU could be effective in halting an assault on the rule of law.
The CJEU took the fifth step in the rule of law revolution. On 19 October 2018, the court ordered interim measures and mandated the retroactive suspension of the Polish Act on the Supreme Court. This decision was “a ground-breaking precedent. Interim measures are exceptional means to ensure the effectiveness of a procedure, but they are mostly used to suspend the effects of EU acts.” The legal form and retroactive character of this decision are far-reaching and unprecedented. Polish courts immediately implemented these interim measures, as did the Polish parliament – after receiving some mixed signals from the ruling party. In November 2018, the parliament changed the controversial provisions of the Law on the Supreme Court in just three and a half hours. This was a return to the status quo ante that allowed all judges who had been forced into retirement to return to work.
On March 22, 2019 a new paper on Poland written within the framework of ‘Europe’s Futures” project was published by ESI and the Stefan Batory Foundation. It analysed the system of the disciplinary procedures for judges introduced by the PiS government and argued that it violated the principle of independence of judges: by giving the minister of justice enormous powers in investigation, prosecution and judging as well as appointing most people involved in the system. Once again we made the case for new infringement procedure against the fundamental violation of the rule of law principle in a EU member state. On April 3, 2019 the Commission opened the procedure against the disciplinary regime for judges which may again lead to a case before the CJEU.
The Polish case has shown that the most efficient and legitimate way to confront violations of the rule of law in the EU is to make full use of the CJEU – the guardian of the bloc’s legal system and the only court that has jurisdiction in all member states. This conclusion is as obvious as it is revolutionary. It is obvious because the EU comprises various nations’ legal systems and is dependent on them following common standards and norms. Where, as has happened in Poland, national institutions and procedures create significant concerns about fundamental principles of the rule of law (such as the separation of powers), there is a need for an institution or a set of procedures that can assess whether these concerns are valid. The EU cannot function if doubts about the legality of national institutions or legislation persist.
However, the CJEU’s new activism is also revolutionary. The regulation of countries’ judicial systems is largely a matter of national sovereignty and, therefore, mostly outside the CJEU’s jurisdiction. It is only the implications of such regulation for the rule of law as a fundamental EU principle, as well as for “efficient legal protection”, that gave the CJEU jurisdiction in claims against the Polish government. While the Commission has long believed that the legal basis for the infringement procedure is too limited, many observers have questioned the CJEU’s legitimacy in dealing with the matter – or feared that the institution would engage in a power grab. Now we know that CJEU is a real and powerful instrument, and the Commission is ready to use it.
Interestingly and importantly, this Polish lesson – that systemic violations of rule of can be halted - got noticed across Europe. The leaders of Hungary and Romania recently backtracked on some important legislative initiatives which threatened to further deteriorate the rule of law standards. Orban suspended his plans to introduce a new parallel administrative courts system. And the Romanian government abandoned plans to interfere with the work of courts. While various factors may have contributed to those decisions, there is no doubt that EU’s new determination to fight rule of law violations played an important role.
This revolution has several important political implications. Firstly, like-minded European governments and political parties need to reach an explicit political consensus that the CJEU is entitled to assess whether fundamental EU values and principles have been systemically violated. If there are legitimate concerns that a state has not respected these values and principles, it should fall to the Commission, EU member states, or national courts to refer cases to the CJEU.
The revolution occurred due to several factors: the willingness of the CJEU to use available treaty provisions to protect fundamental values; a Polish civil society campaign that called upon the Commission to bring the Law on the Supreme Court before the CJEU; political pressure from European parties; and a long power struggle within the Commission in which a determination to push back against the violations of the rule of law ultimately prevailed. While EU treaties grant the CJEU the right to assess the validity of laws that could harm the functioning of the EU as a legal community, the court needed political backing to enforce this right. Many political forces, including some in government, will attack the CJEU’s new role as the last-resort defender of the EU’s fundamental values. This is why it is crucial for pro-European governments and parties to preserve the political legitimacy of CJEU in this role; they should do so by vocally endorsing a path to challenging systemic violations of the EU’s fundamental values that runs through the court.
Secondly, institutions such as the CJEU and the Commission are key to efficiently protecting fundamental values. However, they are also fragile and cannot be taken for granted. If these institutions are to retain their power and independence, they will require greater attention from political actors, media outlets, and the public. In view of the May 2019 European Parliament elections and the changing political landscape in EU member states, this task will become increasingly challenging. Attempts to undermine – from the inside – these institutions’ capacity to act in line with their treaty obligations will become increasingly common. It is of utmost importance to prevent these efforts from succeeding.
This is particularly true for the European Commission. Its commissioners are first nominated by EU member states, working alongside the president of the Commission. The European Parliament can signal its opposition to individual commissioner candidates, but it only votes on whether to approve the team as a whole. While at least four governments (those in Poland, Hungary, Italy, and Romania) are currently on a collision course with EU institutions or question fundamental EU values, the manner in which treaty provisions are applied will largely determine the composition of the next Commission. The roles of the president of the Commission and particularly the European Parliament are crucial in this. In hearings in the European Parliament, all candidates should be asked about their approach protecting fundamental EU values – and only those who explicitly respect the CJEU's role of as the defender of last resort should be appointed. The Parliament must not vote into office a College of Commissioners that includes members who question the rule of law mechanism first applied in the Polish case.
Foruthly, the use of the CJEU has, arguably, proven to be the most efficient way to tackle the violations of the rule of law. But it would be a mistake to dismiss the Article 7 procedure as useless or counterproductive. Article 7 is, like debates in the European Parliament, crucial to generating political legitimacy for judicial action. Both channels should be pursued in parallel, as they complement each other. Article 7 without the possibility of the CJEU issuing a verdict on systemic violations of fundamental EU values is unlikely to work. This is because decisions to sanction one member state require the unanimous support of the others. And there is little value in politically shaming a member state without also pursuing legal action against it. Yet without the political backing of member states – as primarily expressed in hearings in the framework of the Article 7 procedure – the Commission is in a relatively weak position to bring a complaint about systemic violations before the CJEU. This is because the issue revolves around the delicate matter of national sovereignty. The broader the political consensus, the greater the legitimacy of such a decision.
Fifthly, special attention should be paid to the application of proposed or adopted provisions of the draft EU budget, which are designed to address the rule of law (and, more broadly, European values). These instruments include the Rights and Values Programme, as well as EU funding conditioned on adherence to the rule of law.
The recent creation of the €1.8 billion Rights and Values Programme (costing three times more than the Commission initially proposed) is significant to the EU’s efforts to promote its values and principles. It is the only instrument that directly promotes these values within the EU. Most of the programme’s budget will be allocated to local and regional civil society organisations. This is an important innovation, given that EU funds are usually allocated to pan-European consortia. Moreover, an emergency mechanism will give the programme the flexibility to direct funds to problem countries. (Again, this kind of flexibility is unusual in EU bureaucracy.) The system of conditioning EU funding on adherence to the rule of law will significantly empower the Commission. And the Commission’s decisions in this could only be overruled by a majority in the European Parliament or a qualified majority in the European Council. When it adopts these measures, the EU will have powerful new instruments to support and protect the rule of law in member states.
 As the Commission stated, the regulation ran contrary to Article 157 of the TFEU and Directive 2006/54 on gender equality in employment.
 Article 19(1) of the TEU, in combination with Article 47 of the EU Charter of Fundamental Rights.
 The court did not grant “ordinary interim relief on the grounds of Article 279 TFEU, but a particularly urgent kind of relief. The Order relies on Article 160(7) of the Rules of Procedure, which allows the Court to rule prior to hearing the defendant Member State”. See Daniel Sarmiento, http://eulawanalysis.blogspot.com/2018/10/interim-revolutions-cjeu-gives-its.html
The article gives the views of the author, not the position of the "Europe’s Futures–Ideas for Action" project or the Institute for Human Sciences (IWM).