Polish standoff should end in compromise

On the 7th of October the Polish supreme court issued a ruling stating that elements of the European Union treaty were incompatible with the Polish constitution. Although the relevance of this has been downplayed from a legal point of view, Poland’s critics have become enraged. On the 13th of October Dutch prime minister, Mark Rutte, called for financial punishment. The 36 billion pandemic recovery funds earmarked for Poland should be frozen until the country comes to its senses. Regardless of the opinion of the Polish supreme court, the European court of Justice is fining Poland 1 million euros per day as long as they do not comply with the aforementioned ruling. Ursula von der Leyen, president of the European Commission, is afraid Polish democracy is under siege. Polish prime minister Mateusz Morawiecki hit back in an interview in the FT, stating that Poland will defend itself by any means. However, Morawiecki also said that his voters are strong supporters of the EU and that he is not considering a Polish exit.

Although the conflict has recently escalated, the disagreement has been there for multiple years. The issue began in 2015 when the Law and Justice Party (PiS) won a plurality in the Polish parliament and formed their first government. Before the new parliament could be sworn in however, the outgoing parliament stacked the constitutional court with allies of the liberal party Civic Platform (PO). Ever since then the new government has been trying to influence the court composition in its favor. To achieve this the Polish government has taken multiple measures that have caused the conflict within the EU:

Controversial reforms

• lower the age of retirement for Supreme Court justices from 70 to 65, but allow the Polish president to grant a five-year extension to whomever they deemed worthy
• in the general court system lowering the age of retirement for women to 60 and for men to 65, down from the current 67
• allow judges to be investigated and sanctioned for their court rulings by other judges selected by parliament
• allow judges to be appointed by parliament instead of by fellow judges as before

Now, I see why some of these measures would upset European institutions as well as other EU members. Especially the sanctioning of judges for their court rulings is a danger to the division of powers. If there is disagreement about a court ruling the case should proceed to a more senior court and if that court also judges in a way that parliament does not agree with they should change the law. On the other hand I am not afraid of Poland slipping into a dictatorship. PiS has never received over 40% of the popular vote and Polish elections are highly competitive.

The right way forward

What needs to happen here is that Poland needs to agree on a way in which the judiciary branch can be made to reflect the outcomes of elections. In other words, no government should be allowed to stack the supreme court with its own allies to prevent a next government from carrying out its program regardless of democratic support. This means that we have to accept that if a party critical of the status quo comes to power it should not be stopped by legal safeguard. In a wider sense the EU should accept that Poland has a voice in deciding what European values are.

The current stand off should be solved by a compromise. Although the European institutions should safeguard democracy in EU member states they should also allow the Polish government to shape the judiciary in accordance to their democratic mandate. Sanctioning a conservative government while not sanctioning the liberal government that stacked the court in the first place at the very least has the appearance of being disingenuous.