7 June 2023

The ECJ’s Poland judgment should worry anyone who believes in the power of nation states


Remainers harbouring nostalgia for the heady days of the UK’s EU membership might spare a thought for Poland. This week the European Court of Justice in Luxembourg, the EU’s top court, showed how intrusive the EU has become on matters that most people would think related to a country’s internal affairs.

The background was a series of technical changes to the terms of appointment of the Polish higher judiciary introduced in 2020 by the ruling PiS party. The details are fairly mind-numbing, but in summary, the old judicial supervisory body, an organisation known as the KRS, consisting largely of peer-elected judges with a small admixture of politicians, was partly supplanted by a special disciplinary chamber appointed by the Polish parliament with power to discipline all judges, including those in the Supreme Court.

Other judges were forbidden to meddle in questions of the legitimacy of judicial office; and the judiciary was subjected to a duty to disclose and make present and past public membership of associations, pressure groups and political parties. The politics behind this was messy and controversial, as so often. PiS said it was necessary to depoliticise a largely self-perpetuating judiciary with roots going back to the Communist era, while opposition group Civic Platform and much of the European intelligentsia descried a grubby exercise in neutralising a force seen to be anti-PiS. The latter went to Luxembourg.

The Luxembourg court effectively told Poland to abrogate the changes. (You can read its rather lengthy judgment here, albeit only in French) Luxembourg airily sidelined the obvious argument that national judicial appointments were for national law and national political processes and none of the EU’s business. States, it said, had to provide remedies to protect rights under EU law; and this applied to any court that might at any time have to apply EU law (in other words any court, since EU law trumps national law). Because of this, and also because of the reference in the EU Treaty to the rule of law as an EU value, the court had the power to intervene in national judicial appointment and disciplinary process in any case where it saw a practice as inimical to judicial independence.

For good measure it added that taking away from the ordinary courts powers to question the legitimacy of an appointment to judicial office was equally non-compliant with Euro-law, since it might possible compromise the supremacy of European law. And, to drive the point home, it then said that making judges reveal political affiliations was unacceptable under European data protection and fundamental rights law.

Depending on your politics, and your take on the Polish ruling party PiS, you may like or loathe the actual result of this judgment. (Civic Platform, fanatically pro-Brussels and led by EU enthusiast Donald Tusk, is of course delighted.) But that isn’t the point. It’s a question of who ought to decide on such matters. For anyone who believes in the continued power of the nation state as the necessary bedrock of a decent democratic order, this development is distinctly worrying.

For one thing, Luxembourg’s decision – which follows a series of similarly intrusive earlier ones on the Polish judiciary and on social and environmental measures — represents an enormous incursion by Brussels into national affairs.

True, the EU treaty officially respects the independence of member state governments: it expressly reserves to them any powers not given to the EU, and obliges Brussels to ‘respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security’.

But the devil is in the detail, and in the exceptions. If a matter like the system of judicial appointments can be swept within EU control, it is hard to see many areas of life or social policy not potentially at federal risk from an interventionist Brussels.

For another, the decision was far from forced. The EU treaties are vague and prolix, and could plausibly be construed in any number of ways. But the European Court of Justice is not only a court essentially uncontrolled and protected from even the limited democratic scrutiny offered by the European Parliament. It is also a court with, to put it delicately, acute political antennae and a history, dating back almost to its founding, of promoting an expansive and centralising conception of Brussels’s powers. The present case will not have been difficult for it: its judges will have been well aware that the nomenklatura in Brussels and the western European intellectual elite detested PiS’s social policies and its scepticism over the power of Brussels with a vengeance, and would welcome an extension of the power at the centre to deal with them.

What now?

This affair, one suspects, will eventually play out not so much legally as politically. The countries of western Europe, many of which were until 1945 at each others’ throats, may be happy with accepting the overweening supranational power of Brussels. Eastern Europe, having toiled for decades under an overweening supranational power dictating them what to do, is less sure: a fact which Brussels, used for too long to expecting instant and unquestioning obedience to the word of its judges, has not yet fully learnt.

There is another view of Europe, one which with the gradual shift of power eastwards, is likely to gain traction: one where Brussels has to get its way more by negotiation than by judicial fiat, and is forced to recognise that most national governments have a good deal more democratic legitimacy than it has.

One Polish MEP, ex-PM Beata Szydło, described the ruling as ‘a mockery of European law and an expression of treating Poland as a state on which Brussels elites are trying to test their anti-democratic visions’. Statements like this won’t go down well in Brussels, but they are increasingly likely to inform the views of European voters and the governments they elect. And about time too.

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Andrew Tettenborn is a professor of law at Swansea Law School.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.