The Price of Judicial Politicization: Poland Disqualified from the European Union’s Funding Program

Over the past six months, Polish citizens have grown increasingly concerned about the European Union‘s attempts to counter democratic backsliding in Eastern Europe by withholding funding from their nation. With the post-Covid inflation rate topping 18.4 percent in February (the highest recorded number since December 1996) and the national economy wavering under the burden of the war in neighboring Ukraine, Poland’s hopes for rehabilitation have been resting in the promised 270 billion PLN from the EU’s recovery budget – a stimulus package designed to boost member states. [1] Especially in light of the estimates published in the European Commission’s fall economic forecast prognosing that economic growth in EU countries will decrease in 2023 compared to 3.3% recorded in 2022, this sum holds unparalleled investment potential. [2] Yet with the country failing to restore judiciary independence, it is considered to be in violation of a horizontal principle – a fundamental direction within the bloc’s politics of social and economic development – and has been repeatedly refused the money. In response, the right-wing ruling1 party – Prawo i Sprawiedliwość (in English, Law and Justice) – has read the situation as “liberal blackmail,” opening a debate on whether the union’s call was justified. [3] Despite looming ethical questions, when examined with application of European Union law, namely Article 6 of the Common Provisions Regulation and Article 47 of the European Union Charter of Fundamental Rights, and within the framework of turbulence in the Polish judicial system, the threat of restraining funding shall be considered a part of legally tenable protocol.

To understand the genesis of the issue at hand one must realize that, while the EU’s post-pandemic boost was theoretically to be allocated to all member states, a series of requirements had to be met prior. Though Poland was in good standing when it came to the Union’s directives in gender-equality and nondiscrimination, its long and bumpy history of judicial crises rendered it debatable whether the state fulfilled its obligation to respect the European Union’s Charter of Fundamental Rights. [4]

The dubious status of judicial independence has been a paramount point in Poland’s recent history. In 2015, coinciding with PiS’ rise to power, five judges promoted by the previous administration to the Constitutional Tribunal – an organ designed to resolve uncertainties surrounding the compatibility of political activity with the provisions of the constitution – were refused a seat and replaced by counterparts loyal to the new regime. Additionally, on December 8, 2017, once courts had been pervaded by pro-PiS judges, the lower house of Parliament passed the popularly called “muzzle law,” which empowers the Disciplinary Chamber of the Supreme Court, a now dismantled body, to impose sanctions on judges who speak out against judiciary reforms and, therefore, dissuade them from monitoring executive and legislative activity. [5] Considering its autonomy from other courts (the tie to the Supreme Court is merely nominal) and specific range of examined cases, the chamber functions like an ad-hoc special tribunal, the existence of which Article 175 of the Constitution of Poland foresees only in the event of war. [6] Since the country is currently not in a state of emergency, the existence of an exceptional organ, like the Disciplinary Chamber, is uncalled for and its rulings, therefore, deprived of constitutional validity. [7] While these judicial reforms remain a flash point in an on-going discussion about the dubious status of the separation of powers in Poland, the EU’s call to hold back funding shall be interpreted as their rejection.

The Polish constitutional crisis is simultaneously a violation of the Charter of Fundamental Rights of the European Union, the conformity with which is a requirement for funding. Article 6 of the Common Provisions Regulation of June 24, 2021– a document stipulating the conditions member states must fulfill to be eligible for financing – says that the implementation of EU funds should occur “taking into account the Charter of Fundamental Rights of the European Union.” [8] However, by adopting a law targeting independent adjudication by anti-governent judges, Poland weakens political pluralism and defies Article 47 of the Charter guaranteeing all EU citizens the right to “a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.” [9] When read together, in context of the government’s coup of the judiciary scene, the two legal acts justify the bloc’s sanctions.

This is neither the first warning nor the first attempt at restoring the separation of powers in Poland from the outside. Thus far, there have been thirty-seven cases against Poland “with regard to the destruction of the rule of law and politicization of the judiciary” in the Court of Justice of the European Union and forty-three analogous ones in the European Court of Human Rights. [10] In a ruling made on July 15, 2021, in European Commission v. Republic of Poland, the CJEU found the defendant guilty of “failing to guarantee the independence and impartiality of the Disciplinary Chamber” and, therefore, neglecting its responsibilities under the first paragraph of Article 19 of the Treaty of the European Union, which obliges member states to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” [11] Hence, the politicians’ argument that the funds withdrawal was without due process defies the history of this case.

However, despite pleas and burdensome repercussions, state officials blatantly defend their wrongdoings as a purge of “communist-era judges,” and refuse to comply with EU standards. [12] As recently as February 16, 2023, the European Court of Human Rights released a statement that Polish officials had informed the Registry of the Court that the interim measures indicated by the court on December 6, 2022, in Grejgatys, Leszczynska-Furtak, and Piekarska-Drazek v. Poland, regarding an unfounded and unwanted transference of oppositional judges within the Warsaw Court of Appeal, will not be respected due to the absence of “factual or legal grounds'' and that, therefore, the transfer will not be provisionally reversed. [13] While the details of this case are tangential and did not directly contribute to Poland’s disqualification from the EU’s funding program, the formal declaration of noncompliance is symptomatic of the state’s intentional divergence from international standards, hence, a compelling reason for the Union to mistrust any of its promises and efforts to re-instill the rule of law. In similar spirit, the country’s president – Andrzej Duda – refused to pass a draft bill proposing the transfer of judicial disciplinary matters from the Disciplinary Chamber to the Supreme Administrative Court, customarily considered to be more independent. Such stubbornness is rather unfavorable for the optics, further corroborating claims about the state’s rebellion against the EU’s democratic model.

The European Union’s cutthroat politics of disqualifying populations under authoritarian threat from subsidies are an apt example of drastic times calling for drastic measures. When considered alongside parallel events that took place in neighboring countries, it may be read as an increasingly common practice of stigmatizing incompliance. For instance, in November of last year, the Council of the European Union announced that, under Victor Orban’s regime, Hungary will not receive 6.3 billion euros. Though its government initially designed seventeen measures to eliminate state-wide corruption, manifested in the mispurposing of previous EU grants, an investigation conducted by the European Commission proved them as futile. [14]

It is imperative that, in light of the pro-EU opposition’s triumph in the October parliamentary elections and increased prospects for Poland receiving funds after all, the public doesn’t overlook lessons disguised in this story. Lawful according to the above-conducted analysis, the fact of sacrificing a strained economy in the name of protecting the rule of law situates the EU as a watchdog for democratic norms. On top of being, beyond uncertainty, a cautionary tale highlighting the fragility and vulnerability of the judiciary

branch, Poland faced the possibility of an investment stalemate, which is likely to render it the poorest member state and, hence, have a very tangible impact on civilian standard of living. Whether such a strategy for pressuring into reform is effective is a question that transcends the scope of this article yet one that, perhaps, deserves consideration in context of the partnership’s original aspirations to inspire prosperity and stability.

Edited by Rebecca Reyes and Shreya Shivakumar

[1] Główny Urząd Statystyczny, CPI (pot. inflacja) zmiana (%) do analogicznego miesiąca poprzedniego roku, (2023), https://stat.gov.pl/wykres/1.html;

[2] European Commission, “Autumn 2022 Economic Forecast: The EU Economy at a Turning Point,” (Institutional Paper 187, November 2022), https://economy-finance.ec.europa.eu/economic-forecast-and-surveys/economic-forecasts/autumn-2022- economic-forecast-eu-economy-turning-point_en;

[3] Majmurek, Jakub, “Diesla będzie bronić jak Westerplatte. Oto dlaczego Ziobro stawia na przedpotopowe pomysły,” Newsweek Polska, June 17, 2022, https://www.rp.pl/polityka/art36170571-ziobro-unia-europejska-siega-po-szantaz-zdaniem-pis-u-tak-mialo- nie-byc;

[4] Sapała, Magdalena and Marcin Szczepański, “European Parliament, Krajowy Plan Odbudowy i Zwiększania Odporności Polski,” European Parliamentary Research Service, September 2022, https://www.europarl.europa.eu/RegData/etudes/BRIE/2022/733665/EPRS-Briefing-733665-NRRP-Polan d-PL.pdf;

[5] Ustawa z dnia 20 grudnia 2019 r. o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw, https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20200000190/T/D20200190L.pdf;

[6] Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r., Ust.2, Art. 175, https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19970780483/U/D19970483Lj.pdf;

[7] Wróbel, Włodzimierz, “Izba Dyscyplinarna Jako Sąd Wyjątkowy w Rozumieniu Art. 175 Ust. 2 Konstytucji RP,” Palestra 1-2, 2019, https://palestra.pl/pl/czasopismo/wydanie/1-2-2019/artykul/izba-dyscyplinarna-jako-sad-wyjatkowy-w-rozu mieniu-art.-175-ust.-2-konstytucji-rp;

[8] Regulation (EU) 2021/1060 Of The European Parliament And Of The Council of 24 June 2021, Art.9, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32021R1060;

[9] Charter Of Fundamental Rights Of The European Union, Art.47, https://www.europarl.europa.eu/charter/pdf/text_en.pdf;

[10] Free Courts Foundation, List of closed and pending cases against Poland with regard to the destruction of the rule of law and politicization of the judiciary,

[11] Consolidated Version Of The Treaty on European Union, Art. 19,

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A596; https://eur-lex.europa.eu/resource.html?uri=cellar:2bf140bf-a3f8-4ab2-b506-fd71826e6da6.0023.02/DOC _1&format=PDF;

[12] Szczygieł, Konrad, “Ekspert prezydenta, prof. Królikowski zdradza, jak, według niego, powinny wyglądać ustawy o sądach,”OKO.press, September 6, 2017, https://oko.press/oko-press-ekspert-prezydenta-prof-krolikowski-zdradza-wedlug-niego-wygladac-ustawy- o-sadach;

[13] Non-compliance with Interim Measure in Polish Judiciary Cases, Press Release Issued by the Registrar of the Court, February 16, 2023, https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwj4ovvarLyCAxVCC nkGHW7OBxcQFnoECBQQAQ&url=https%3A%2F%2Fhudoc.echr.coe.int%2Fapp%2Fconversion%2Fpd f%2F%3Flibrary%3DECHR%26id%3D003-7573075-10409301%26filename%3DNon-compliance%2520w ith%2520interim%2520measure%2520in%2520Polish%2520judiciary%2520cases.pdf&usg=AOvVaw1Zjs 9ZnKFWdYlQjvY3Foji&opi=89978449;

[14] “Parliament Insists That the EU Must Freeze Funding to Hungary,” European Parliament Press Release, November 24, 2022, https://www.europarl.europa.eu/news/en/press-room/20221118IPR55719/parliament-insists-that-the-eu-m ust-freeze-funding-to-hungary.