The outcome could shape the nature and even existence of the European projectby Christian Davies / June 27, 2019 / Leave a comment
A diminutive, determined-looking judge in her mid-60s, Polish Supreme Court President Małgorzata Gersdorf is one of the faces of judicial resistance to Poland’s ruling right-wing Law and Justice party (PiS). The outcome of the resistance, which is still ongoing, will have profound consequences for the rest of Europe.
Using a series of breathtakingly brazen manoeuvres, PiS has already taken control of Poland’s Constitutional Tribunal and the National Council of the Judiciary, the body that appoints Polish judges, and in 2017 introduced a new retirement age for Supreme Court judges to clear the war for a takeover by loyalists.
The legislation just so happened to come into force on Gersdorf’s 65th birthday, but she and several other judges, citing the provisions in the Polish constitution safeguarding judicial independence, refused to submit. The government watched on helplessly as they turned up for work regardless, with Gersdorf carrying a large bouquet of white flowers and cheered by hundreds of supporters.
This week a new front of judicial resistance was opened, this time at the European level, thanks to a new ruling by the European Court of Justice. While the Polish case may itself only be of passing interest to those beyond observers of central Europe and European law, the ECJ’s ruling marks a major development in a slow-burning crisis that is already reshaping Europe’s legal order, and which in the long-term may determine the future shape—even the future existence—of the Union itself.
For several years now, member states and the European Commission have been caught between the immediate risk of confronting authoritarian-minded governments, thereby exacerbating existing political fissures across the continent, and the long-term risk of the European legal order disintegrating as more members, emboldened by the examples set by Law and Justice in Poland and Viktor Orban’s Fidesz in Hungary, see fit to violate the basic democratic and legal framework that holds the union together.
Tools developed over the last decade, such as the relatively new “Article 7” process to censure and potentially sanction backsliders, have foundered as member states baulk at the notion of sitting in judgment on their peers. Poland, Hungary, and other states may suffer in the upcoming budget process, but any decisions made now will not be felt for many years.
EU institutions have…