After years of flailing in efforts to curb Poland’s government from eviscerating the rule of law, an arcane element of the European Union structure might actually be working to staunch the bleeding. Last week, the European Commission launched another in a series of what are called infringement proceedings against the government of Poland. If this sounds like an example of European bureaucracy at work, it is. But this time, it may have a positive effect.

Since coming to power in 2015, the Polish government led by the Law and Justice Party has presented a series of headaches for the European Union and its executive body, the European Commission. Law and Justice, and its leader, Jaroslaw Kaczynski, have attempted to impose executive control over the judiciary from top to bottom – starting with the country’s Constitutional Tribunal in 2015, and continuing with the Supreme Court and Ordinary (Regional) Courts in the years following.

The European Commission, not having had much experience with states that were once democratic but then trended toward autocratic policies, has not responded very effectively. This is in part because it just doesn’t have the tools; EU structures were set up largely to focus on acceptance into the EU, assuming that once granted membership, states would maintain the basic values of the union.

So in response to the Law and Justice government’s unconstitutional takeover of the Constitutional Tribunal via disputed judicial appointments and the passage of new procedural requirements that hamstrung the Tribunal’s work in November 2015, the European Commission froze up. It failed to react immediately or forcefully. It expressed concern finally in January 2016, stating that it wanted to “begin a dialogue” with the Polish government, but seemed to think this finger-wagging would be enough to motivate change. It wasn’t. The Polish government continued to tear down rule of law and judicial independence.

Finally, in December 2017, the EU triggered Article 7 of the Lisbon Treaty – once dubbed the “nuclear option,“ because if carried to its culmination, this process sanctions the offending state, blocking them from voting on major matters within the EU. The Poles did not respond, banking on the likelihood that the Hungarians, knowing they were soon to be subjected to the same procedure, would stymie the unanimity necessary to move the process forward. The EU seemed at a loss.

Something Surprising … and a Little Bit Brave

That is when Polish judges did something surprising, and a little bit brave. They stopped waiting for the European Commission to get its act together and took matters into their own hands. Having witnessed a similar takedown of the judiciary in Hungary in 2011 and 2012, and the challenge to government action, the Polish judges knew that waiting for a European Court of Human Rights decision on the government’s attempt to illegally force them out would take years. In Hungary, when the forced retirements were challenged, the ECtHR indeed found a violation, but could only order monetary damages in response to the violation – it was impossible to force rehiring of the judges.

The Polish judges took note and decided to use a different strategy: in August 2018, they sent a request for a preliminary opinion to the European Court of Justice. Under Article 267 of the Treaty on the Functioning of the European Union (TFEU), a member country’s courts are free to request preliminary rulings from the ECJ. The appeal was made using this process, through an existing case already pending before the ECJ. The Polish judges also asked for expedited review.

The creativity of the Supreme Court judges paid off, and the ECJ ruled in October 2018 that the law forcing their retirement violated EU law; the judges could NOT be forced out.  A period of tension followed, when many Poles believed their government would rather defy the court decision than reverse its own policy. Defiance would have put them on a collision course with the governing bodies of the EU.

Luckily, the Polish government agreed to rework just the retirement provision of the law. The government seemed to think that amending one provision would protect their remaining policies. And anyway, the government had a new strategy.

While it did not force the judges to retire, it began disciplining them, en masse, and for actions that were blatantly political, such as seeking the preliminary ruling from the ECJ. The Justice Defense Committee in Poland, a group of judges and lawyers that support the judges under attack, has documented more than 65 cases of judges being disciplined for alleged offenses like receiving a human rights award  (that was indeed the offending activity that the judge was called in to explain: receiving an award from recently-assassinated mayor Pawel Adamowicz for support of human rights), expressing concern about the state of rule of law in Poland, or lecturing high school students about the Polish Constitution. As the European Commission noted with alarm, some of the judges were disciplined for what amounted to ruling the “wrong” way in a case, i.e. not in the way the government preferred.

A Way Forward

Yet, Polish judges were not deterred. A group of them had seized on the success of the Supreme Court’s petition to the ECJ; they saw in it a way forward. They began sending requests for preliminary rulings to the ECJ regarding seven of the government’s other “judicial reforms.”

The persistence of the judges seemed to send a signal to the European Commission, and surprisingly, the Commission understood the message. By strategically and more frequently instituting infringement proceedings, which are proceedings in the ECJ brought by the Commission to challenge violations of EU law, the Commission could address the various policies of concern.

The ECJ proceedings could act as a scalpel, targeting with legal arguments the problematic Polish laws and actions much more effectively than with the vague and bludgeon-like Article 7 “nuclear option.”

This sudden flash of insight by the Commission is why I believe the Commission acted on April 3 to launch what is actually the third infringement proceeding against Poland regarding actions that undermine rule of law. We had seen two prior proceedings: one in 2017 regarding the Law on Ordinary Courts (Regional Courts) and one in 2018 regarding the Law on the Supreme Court (which handles any appeals that don’t involve constitutional matters).  But the Commission hadn’t wielded those proceedings strategically. They limited the legal questions applicable and formulated the issues very narrowly. For example, in the proceeding on the Law on the Supreme Court, the only provision challenged was the forced retirements, when numerous other aspects set off rule of law alarms, including the disciplinary system now at issue.

The Commission also had not expressed a sense of urgency — the proceeding on the Ordinary Courts, initiated in 2017, is still pending without a decision. The Commission was gingerly tiptoeing around the Polish government, rather than standing its ground in support of fundamental EU laws and values.

Full Strategic Use of the European Commission’s Power

With this new proceeding now, the Commission has made full strategic use of its power. Unlike previous cases, the EC this time avoided anemic references to a single policy, and rather addressed the political abuse of Poland’s entire judicial disciplinary system to illegitimately target certain judges.

The proceeding addresses numerous issues: 1) the fact that judges are being disciplined for the content of their decisions (i.e. the fact that they may make statements the ruling party disagrees with in a court decision); 2) the fact that  the “court” that will hear the disciplinary complaints may not be a legally-formed court; 3) the unfettered discretion of the decision-maker in these disciplinary proceedings against judges; 4) the lack of fair-trial safeguards provided to the disciplined judges; and 5) the fact that disciplinary proceedings are kept open, which has the effect of applying continuous pressure on the judges.

With this case, we are finally seeing the Commission make full and comprehensive use of the infringement proceeding tool.

As a Poland watcher and rule of law geek, I am pleased. I believe the European Commission has finally hit on a method of pushing back on Poland’s attacks on its own constitution and on the liberal democratic values that are the foundation of EU membership. This method may actually have a chance of limiting and reversing some of the Polish government’s worst policies. And the commission could do so without relying on a unanimous vote that would be impossible to achieve.

This infringement proceeding will provide a comprehensive review of the entire disciplinary system that the Polish government has created, in violation of the Polish Constitution and in violation of EU law, to punish judges that disagree with the ruling Law and Justice government.

Furthermore, the Commission has now, for the first time, put up guard rails for EU states generally that are not aimed at curtailing conservative views but rather are intended to protect the basic tenets of democracy. This is as it should be.

Since the decision of the ECJ will again be a legally-binding decision, like the one that prompted the Polish government to back down last year, we can be hopeful that it will comply this time as well.  I hold out hope that we may yet see a return to rule of law in Poland.  Now, if the Commission would only do the same for Hungary.

IMAGE: People demonstrate to support the Polish Supreme Court Justice president in front of the Supreme Court building, on July 4, 2018 in Warsaw, after the right-wing government tried to force her and other judges to resign. (Photo by WOJTEK RADWANSKI/AFP/Getty Images)