Insight
How to solve a problem like Poland
by Camino Mortera-Martinez, 3 November 2021 The Polish government’s defiance over the rule of law puts the EU in a bind. To protect the Union’s integrity without alienating Polish citizens, the EU needs a mix of political pressure, legal action and better communication. If Mateusz Morawiecki, Poland’s bespectacled prime minister, looks less like a Trumpian populist leader and more like an EU law professor, it is because he is. A well-educated lawyer and economist, Morawiecki co-authored the country’s first handbook on European Union law, ‘Prawo europejskie’, in 1999. His recent letter to EU leaders and his speech to the European Parliament in Strasbourg, on the dry subject of the primacy of EU law, were articulate, mostly factual – and dangerous. Morawiecki made his Law and Justice (PiS) party’s latest attack on the rule of law sound like an academic debate on the hierarchy of legal orders. The strategy worked – instead of confronting the Polish government, EU leaders chose to ‘de-dramatise’ the issue during their October 21st summit in Brussels. Some, like France’s Emmanuel Macron, are afraid of a domestic debate on sovereignty and the EU. Others, like outgoing German Chancellor Angela Merkel, believe that a public showdown with Poland is in no one’s interest. European Council President Charles Michel, who does not have to face voters at home, decided to side-step the question. He only put the rule of law on the agenda at the last minute, and the Council conclusions made no mention of it. EU leaders should be more alarmed. Whether EU law has primacy over the Polish legal order is not a matter of scholarly debate, but the latest flashpoint in the Polish government’s escalating row with Brussels over Poland’s compliance with the rule of law. This academic back-and-forth deflects both attention and political capital from the EU’s real problem: how to keep Poland as part of the Union´s common legal space by restoring judicial independence, without fuelling the government’s nativist narrative at home. After coming to power in 2015, Law and Justice and its coalition partners launched a major overhaul of Poland’s judiciary. First, the government changed the rules governing the Constitutional Court, and packed it with friendly judges; second, with the help of the loyal Constitutional Court, it revamped the judiciary’s governing body, the National Judiciary Council, and changed how both ordinary courts and the Supreme Court functioned. The reform also lowered the retirement age of judges, which allowed the government to force out magistrates seen as hostile to it and replace them with younger, pro-PiS judges. CER INSIGHT: How to solve a problem like Poland 3 November 2021
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