In conversation with Barbara Grabowska-Moroz: The escalation of Poland’s Rule of Law crisis

RevDem Editor Oliver Garner sits down with Barbara Grabowska-Moroz, Research Fellow at the CEU Democracy Institute Rule of Law Workgroup, and member of the Horizon 2020 RECONNECT Project. They discuss the current state of the rule of law crisis in Poland, the arduous relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) and the Polish Constitutional Tribunal, and the effects this has on other EU Member States and constitutional courts.

Oliver Garner: Today we’ll be discussing the current state of the rule of law crisis in Poland following recent contentious judgments by the Polish Constitutional Tribunal.

The last months since the K 3/21 judgment feel like an escalation in the crisis between Poland and the EU, and now indeed the ECtHR. We’ve also seen proceedings in the Court of Justice of the EU in Luxembourg on the legality of the Budget Conditionality Regulation. Could you provide an overview for our listeners of where things currently stand in the situation?

Barbara Grabowska-Moroz: After the ruling of the Constitutional Tribunal was issued, a lot of things happened both domestically and internationally. A few days after the ruling, the Polish government managed to challenge the Rule of Law Conditionality Regulation before the Court of Justice. It asked the Court to review the rule of law issues regulated in this legislation. In contrast, in the Polish K 3/21 case, decided on 6 October 2021, the Polish government wanted the decision that the CJEU cannot decide on the independence of the judiciary. So, there is a legal and a logical problem with this approach. Nevertheless, the hearing took place, and we are awaiting the opinion of the Advocate-General in December.

Then we had the hearing in the European Parliament dealing exactly with the problem of the primacy and supremacy of EU law in Poland. We were able to hear from Ursula von der Leyen and the Commission about how concerned they are with the situation in Poland.

What struck me most was when von der Leyen mentioned that “the Polish Constitutional Court that today has cast doubts on the validity of our Treaty is the same court that under Article 7 we consider not to be independent and legitimate.” And this in many ways comes full circle. The problem of the Tribunal is not one initiated in 2021. It started much earlier, and apparently the European Union was not able to deal with it before the worst happened, and the K 3/21 ruling was issued.

The European Parliament also issued a resolution in which it stated that the Tribunal was illegitimate, and in which the name “Constitutional Tribunal” was put into quotation marks. This shows, from the political perspective, how the Tribunal is treated in the European Union.

Two weeks later, the CJEU imposed financial penalties on Poland because the government has not suspended the disciplinary chamber as was ordered in July 2021. The fine is set very high at 1.000.000 EUR per day. Despite this high sanction, the government still allows the chamber to decide cases. Just this week, Maciej Ferek, a judge from Krakow, was suspended by the disciplinary chamber. He had ruled that the new judges appointed to the Supreme Court could not be considered independent. He was not even aware that a hearing in his case was taking place in that chamber.

We had another interesting ruling issued by the European Court of Human Rights in Strasbourg in the case Dolińska-Ficek and Ozimek v. Poland. It dealt with another chamber of the Polish Supreme Court which was also found not to meet the standards of a tribunal established by law. With this, we have at least three rulings of the Strasbourg court saying that each element of this reform of the judiciary is unconstitutional. And while we are talking about Strasbourg, the latest development on the European Convention on Human Rights happened on 25 November. The K 6/21 ruling of the Constitutional Tribunal found Article 6 of the European Convention on Human Rights (ECHR), the right to fair trial, to be unconstitutional insofar as the ECtHR includes the Constitutional Tribunal as a court within the meaning of this provision. It sounds absurd for the Tribunal not to consider itself to be a “court” in light of international law, but I think that it will not be the last word of the Tribunal on the way it tries to challenge and undermine the international legal framework by which Poland is bound.

Do you think that there is a connection between the two judicial flashpoints on EU law of the Polish Constitutional Tribunal finding on primacy and the Court of Justice of the EU deciding on the Regulation on Budget Conditionality?

If the Court of Justice does find the Regulation to be legal, does the possible non-application of EU law on effective legal protection in Poland trigger the conditions for withholding founds due to a risk to the EU budget?

I think that, after the K 3/21 ruling 6 October, but also after yesterday’s K 6/21 ruling, the possibility that EU law will not be applicable is much higher than before. The question is how to link it to the EU Regulation’s conditions. What has to be the main point for the Commission in this procedure in considering the situation in Poland – and Hungary as well – is to think about the whole system and mechanisms adopted by the Constitutional Tribunal and other authorities in Poland.

When you look at the text of the Regulation and the conditions set therein, there are three main elements that are crucial in the consideration of whether the rule of law is being upheld by the Member State. These are: (1) the question of judicial independence; (2) the effectiveness of law enforcement when investigating fraud or abuse of EU funds and (3) the effectiveness of EU remedies. Just as you mentioned, all the rulings issued by the Court of Justice concerned a lack of effective remedies due to a lack of judicial independence. We have a situation where Poland does not implement the rulings of the Court of Justice. This situation is convincing enough for the EU institutions to think that the red line has been crossed. I think it is possible to imagine how it can be linked to EU funds.

When the decisions of the government are arbitrary and will not be reviewed by independent institutions or investigated by an independent investigator’s office, there is a huge question mark over whether EU law can be applied properly and EU funds can be spent properly in Poland.

You mentioned in your first answer that on Wednesday 24 November the Constitutional Tribunal in Poland found that it does not fall itself within the definition of a “court” under Article 6 ECHR on the right to a fair trial. This was a response to the Xero Flor decision of the Strasbourg court of May 2021.

Do you think that the Polish government’s challenges to European legal obligations will remain limited to issues relevant to its internal judicial reforms, or do you see the possibility of a spill-over whereby the government could seek to claim that other binding obligations in the EU treaties or the European Convention on Human Rights are unconstitutional?

In both these cases, the issues dealt with judicial reforms and the independence of the courts. This is something which seems to be unnegotiable for the government. I do not think that in the foreseeable future the government will be able to negotiate with the EU institutions any change to these reforms. There was the idea to abolish the disciplinary chamber, but at the same time the judges who were appointed to the chamber would remain judges and just be assigned to different chambers of the Supreme Court. So, nothing would basically change. Some new ideas for a reform were also presented. They were very frightening from the perspective of judicial independence.

I can imagine that other topics which seem crucial for the government will be things that they fight for on an ideological level, such as women’s or LGBT+ rights. If any of these issues are regulated or strengthened by the EU institutions I can imagine that such cases will also be discussed and challenged by the Constitutional Tribunal.

The body is fully captured, and it is an easy way for the government to make its arguments visible and accepted by at least someone, even if that someone is a domestic actor in the shape of the Tribunal. One of the cases that is already pending before the Tribunal is the issue of the Istanbul Convention on preventing and combating violence against women and domestic violence. The Prime Minister asked the Tribunal whether this Convention is compatible with the Polish Constitution. The issue of women’s rights is already at stake.

This was also the case with last year’s K 1/20 ruling on abortion rights. As a result of that case, access to abortion is effectively illegal in Poland. It does not matter to the government that we may end up with many rulings from the Strasbourg court dealing with women’s rights. We will probably end up with the same procedure again, in that the government will ask the Tribunal to proclaim that the Strasbourg court cannot rule on abortion rights, because this is fully covered by the constitutional legal order, and can be neither discussed nor challenged or assessed by any international court.

I found a very interesting sentence in this recent Strasbourg court ruling in the Dolińska-Ficek and Ozimek case. It was about the Constitutional Tribunal’s ruling U 2/20 of 20 April 2020 as part of its conflict with the Supreme Court. The European Court of Human Rights found that the ruling was arbitrary and has no impact on ECHR case-law (para 285-317). I can imagine that the same assessment will be done with regard to yesterday’s ruling. The Prosecutor General has already submitted a very similar motion after another judgment by the Strasbourg court which dealt with the disciplinary chamber. But I do not think the topic will be limited to judiciary reform.

It is interesting to consider that maybe we could see a move away from challenging more formal values such as the rule of law towards the more substantive values of a liberal democracy, which are obviously enshrined in EU law and the European Convention on Human Rights.

I think this is visible in Hungary where the whole system is already under the control of the government. There the discussion is not only on the basic elements of the rule of law but on freedom of the media too. Freedom of the media in Hungary does not, in fact, exist because you do not have access to media which is not under the control of the government. Media freedom is not part of the very essence of the rule of law, but it is linked to both the rule of law and even more so to democracy.

As you mentioned, even if we want to define the rule of law in a formal way, we have to see the links to fundamental rights and democratic processes that EU Member States have to protect.

You mentioned the continuing campaign by the Prosecutor General of bringing applications to the Constitutional Tribunal which challenge specific judgments of the European courts.

Do you think there are any prospects for resolution of this crisis at the domestic level? Could the problems, for example, be resolved through new appointments to the Constitutional Tribunal and an overturning of these judgments? Or do you think a more radical constitutional reform will be necessary, perhaps after Law and Justice are no longer in power, such as is being proposed in relation to Hungary by opposition candidates ahead of elections there, which would see reforms which would perhaps change the Constitutional Tribunal or completely overhaul it?

Because the whole constitutional crisis started with the Constitutional Tribunal, I think the process of undoing the harm and the crisis also needs to start with the Tribunal. However, according to the Polish Constitution, new appointments to the Tribunal are done in a political process by the Polish parliament. The question is also whether you can overcome the consequences of those rulings issued by the Tribunal by individual decisions issued by the domestic common or administrative courts. I would say that this would have been possible maybe a year ago. Now you see the reaction of the disciplinary chamber if the government does not agree with a court’s decision. They immediately suspend you as a judge, you lose 50 % of your salary and cannot rule in cases anymore. It is a temporary decision, but it is effective.

One judge in Poland, judge Paweł Juszczyszyn has now been suspended for, I believe, more than two years. It is a very real threat to judicial independence. When it comes to the legal system, I cannot imagine that such rulings will remain in the system.

It would be shameful for the decisions of the disciplinary chamber and the Tribunal to be still binding after a reform of the system. If we really think about how to undo the crisis, this needs to be one of the central points: how to review those rulings.

Now, according to the Constitution such a review is not possible. There is no such procedure to check whether the ruling or the composition of the Tribunal was legal.

At the same time, if we want to change the Tribunal, we really have to do it according to the rules and provisions of the Constitution. Because what is at stake is the belief in the rule of law among people in Poland.  

You have to bear in mind that the society in Poland is very highly polarized right now. Any day-after scenario prepared by the opposition has to be at least partially approved by those who right now support the ruling party. Otherwise, with the aim of undoing constitutional harm, we will end up with the same crisis. This process is possible legally speaking, but it has to be very well prepared by the political side and it has to be presented, justified, and accepted by the voters. And that will not be easy, precisely because of the polarization.

As you mentioned the hypothetical scenario of two wrongs not making a right, this is perhaps evocative of  how this crisis actually started in 2015. In commenting on the K 6/21 application recently, I was really struck with interest by the history of the judicial appointments controversy.

Why do you think Law and Justice chose to appoint judges unconstitutionally in response to the 7th term Sejm [Polish parliament lower-house] appointments, rather than seeking to argue before the Constitutional Tribunal as it was composed then that two of these appointments were unconstitutional because the mandates of the incumbents expired during the 8th Sejm’s term, and they were thus appointed pre-emptively?

And do you think there is any prospect for a form of political compromise to de-escalate the conflict, whereby the ruling Law and Justice party would recognize the unconstitutionality of all of these appointments and re-appoint in accordance with constitutional rules? Or do you think the fact that the legitimate 7th term appointments never took up their seats means that there is an ‘original sin’ in the current composition of the Tribunal?

I think your second question is the easiest: is there any chance for compromise? No. There is no chance for political compromise. I believed in compromise in 2016 at the beginning of the crisis, because there were plenty of opportunities to undo the harm and somehow manage to make the Tribunal act legally and be appointed lawfully. Right now, it is almost impossible. With regard to your first question as to why Law and Justice decided to appoint judges instead of waiting for a ruling by the Tribunal, the answer is quite easy as well: because it was faster and much more effective.

If Law and Justice had waited for the ruling, the outcome would have probably been that two judges can lawfully be appointed by the new parliament. Without waiting for the ruling, Law and Justice was able to appoint five judges. Five judges is much more than two.  

And then the court packing after that was done in a situation in which the judges at the Tribunal have been appointed by the Law and Justice ruling majority.

There is also the idea of legal impossibilism, which was discussed at the Review of Democracy. It was presented by Jarosław Kaczyński many years ago. The idea is that checks and balances, the concept that I have to discuss my decisions with the opposition or with other institutions, makes the political process much slower. And it means that, as a political leader, I do not have an impact on the final version of the decision. In the end it is the Tribunal which can review and find parts of my decision to be unconstitutional. And this is, I think, something that Jarosław Kaczyński cannot accept. This is just the way he acts, the way he makes decisions.

Coming back to your last question on how we can solve the situation, I think the situation is becoming much more difficult as time goes by. Right now, six years after the first appointments, two out of those three judges have passed away, so two more judges were appointed for those positions. But since the term of the office is nine years and six years have already passed, we will probably end up in three years in a situation where those illegally appointed judges will end their term of office. Then the question then will be what happens next? We will then no longer have the argument that the judges are unlawfully appointed because their terms of office have expired.

In three years there will also be a new parliament, because the parliamentary elections will take place in two years. As you can see, the legal aspect very much depends on the political situation on the ground, and this is evolving all the time. But on a very personal level this is my feeling about the composition of the Tribunal, which I think is shared by many people: you cannot treat this Tribunal as an independent body. Not just because of the rulings they make, but because of the very direct link and affiliation between a couple of the judges and the ruling party.

We cannot pretend that the Tribunal is independent. It has to be changed one way or another. But we cannot just say that the Tribunal does not exist anymore, because that would be contrary to the constitutional norms. And this makes the situation much more difficult.

Because we do not have a domestic procedure on how to review those rulings by the Tribunal, we need to look for such procedures externally on the international level. Unfortunately, we now have the statements that the European Convention of Human Rights and the right to effective legal remedies are unconstitutional. Can you imagine what type of protection such a legal system can provide? It is minimal. It offers protection for politicians and for public authorities, but not necessarily for individuals, be they citizens or non-citizens. Imagine a refugee on the Polish-Belarusian border right now. Such a system does not provide them with any kind of protection of their basic freedoms.

Perhaps that is a lesson from history that if we take shortcuts we can end up on the completely wrong road and find ourselves unable to get back onto the path. With regard to what you mentioned on the expiry of term limits, perhaps an argument could be made on how term limits may indeed help to resolve a crisis when you have appointments that are not permanent. I was even wondering if the judgment on 25 November about the Constitutional Tribunal not falling under the definition of a court could actually be used by political opponents to say that this Tribunal has been turned into a political body, something more like the Conseil d’État, which is part of the executive and legislative process rather than being a judicial body.

But it is also a challenge for the European Commission. If they really think about initiating infringement procedures against Poland because of the K 3/21 ruling, then the question will be whether we can challenge a “ruling” given by a non-judicial body before the Court of Justice. This would mean we treat it as a judicial body, and we treat it as a judgment. On the other hand, doing nothing, just leaving it as if it never happened, would allow the Tribunal to give more rulings such as these, and allow for the erosion of not just the rule of law but the whole EU law system. I think that is real threat to the EU law system.

This appears to be a constitutional version of the ‘no-platforming’ debate about whether or not you should recognize an interlocutor who is acting in bad faith. You mentioned prospects for resolution. What could perhaps be seen as the nuclear option is the controversial idea of ‘Polexit’. Following K 3/21 certain legal scholars have made the ambitious argument that the judgment itself should be interpreted as notification of an intention to withdraw under Article 50 TEU.

On the other hand, our colleague at the Democracy Institute Dimitry Kochenov has argued that a political decision to withdraw by the Polish government would not be valid because the current disruption and disfunction means that “constitutional requirements” could not be fulfilled. What is your opinion on these arguments? And do you believe that the crisis is heading towards formal Polexit, or can it be resolved through other means?

I think that currently the Polish government is not really interested in leaving the EU. Even if a scholar would read the ruling as a notification under Article 50 TEU, the Polish government will definitely not treat it that way and will not support such a notification before the EU institutions. This is a just a pragmatic argument. On a legal level, I think the point made by Dimitry Kochenov is absolutely correct. It would, however, be the Court of Justice who has to review whether such a decision cannot currently be made by the Polish authorities or the Tribunal. But then we would likely end up with a ruling of the Polish Constitutional Tribunal saying that the Court of Justice cannot review such political decisions by the Polish government. So, we would probably end up with another legal mess. I guess the K 3/21 ruling of the 6 October allows the Polish government to cherry pick the obligations they like, enjoy, and support, and ignore those that they will not accept on any level. Of course, the ruling of the Tribunal has no legal effect in the proceedings before the Court of Justice. But the government probably just needs someone to support their vision and to present at least some kind of argument. This is a kind of ‘appeal to authority’ argument, because it is a decision made by another constitutional authority in Poland.

I think that all of those legal deficiencies will have to be translated into political consequences. And this is a job for the European Commission and one of the steps it has already taken. The explanatory letters have already been sent to Poland and Hungary asking about basic issues dealing with the protection of EU funds, but also with all the rule of law deficiencies that have been diagnosed both in Poland and Hungary. This makes the whole process even longer. Both states have two months to provide responses to those letters.

Meanwhile we will probably have the opinion of the Advocate-General on the 2 December 2021 on the budget conditionality Regulation. Maybe we may even end up with the ruling of the Court of Justice in January. Look at the sentence by Ursula von der Leyen which I quoted before: she is saying that we know that the Tribunal is not independent, but we have not done anything with that knowledge.

We see a full circle of us leaving the state as it was, and just waiting to see what will happen. Partially this is the responsibility of the Commission but to a large extent it is the responsibility of Member States. I think they just wait and see what will happen to Poland and the longer they wait, the more illegal things happen in Poland.

This will not only affect the Polish judges but the whole EU system. There is a Constitutional Tribunal saying that EU law does not apply in Poland if the Polish government does not like the provisions. We can already see that the Hungarian Constitutional Court has been asked to do exactly the same thing. The Romanian Constitutional Court is trying to do exactly the same and follow the same path. Right now, we are not only talking about judicial independence in Poland. We are talking about how EU law will work in practice in the future. And for the Polish government, of course, the question of EU funds is a very real one. They are still waiting for the recovery fund to be accepted by the Commission and for the money to be sent to Poland. This is another question of how the rule of law effects access to EU funds, and how it affects the everyday life of EU citizens.

The transcript has been edited for length and clarity.

In collaboration with Alexander Lazović.

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