Independence of Justice in Poland - How EU Deals with the Copenhagen Paradox

Poland is undergoing the most serious constitutional crisis touching upon foundations of democracy. The process of reforms of justice system started in 2015 after the first victory of Law and Justice party (PIS). Its aim was to assure political control over judiciary and its subordinance to governing majority. The common denomination of reforms introduced in Poland, following the Hungarian pattern, is an overreaching political influence on the personal aspect and scope of justice, namely judges – their appointment, dismissal and rules of retirement age. The adopted laws and political practices have shaken the comprehensive justice system – Constitutional Court, Supreme court, ordinary courts and National Council of Judiciary. Enacted laws were not only doubtful form the Polish constitutional perspective, but also went against European standards assured by the Council of Europe and European Union. Independent judicial power is inherent to any democratic system being a cornerstone of principle of separation of powers. Independent justice, impartial courts and tribunals are at the core of the rule of law principle being axiological foundation of European Union (art. 2 TEU). Polish case exemplifies a Copenhagen paradox – country which met Copenhagen criteria of EU membership, once a member is disregarding some of the most fundamental values. It triggered an immediate reaction of the EU, which reached for different tools, testing at the same time their effectiveness. The present proposal will develop a legal, theoretical reflection on types of tools (political, judicial) and their strengths in terms of impact on the member state disregarding values enshrined in art. 2 TEU. Measures adopted towards Poland result from soft law mechanisms (ex. European Commission’s Rule of Law Framework) and treaty-based ones. The latter can be of political (art. 7 TEU) and judicial (art. 258, 267 TFEU) character. The presumption, based on taken measures and their outcome, is that political control is much weaker than the judicial one performed by the CJEU. The Commission once faced with democratic backsliding was left alone in what was supposed to be an constructive dialogue within Rule of Law Framework. As a consequence, Commission reached for art. 7 TEU, yet the procedure got stuck in a political limbo of procedural obstacles and Polish-Hungarian alliance. Then the CJEU came to play. The CJEU is involved in either top down procedures (actions on infringement brought by the European Commission under art. 258 TFEU) or bottom up initiatives of national courts referring preliminary references under art. 267 TFEU. During the past year the CJEU ruled on Polish reforms declaring them incompatible with art. 19 and art. 2 TEU, which caused vivid and contradictory responses of Polish government, opposition and national judges themselves. The consequences of the latest judgement of from 19.11.19 (C-624/18) provoked an immediate reaction of independent judges following CJEU’s instruction. At the same time the parliamentary majority filed a legislative proposal imposing draconic sanctions on judges applying CJEU’s ruling. The paper tackles with the question relating to the impact of escalated crises on the future of democracy in Poland and EU.