Brexit is not the only problem challenging the integrity of the EU’s single market. Last week the European Court of Justice (ECJ) ordered the Polish government to stop appointing new Judges. In December 2021, the Venice Commission, a body set up by the Council of Europe (independent of the EU), said the present Polish government is undertaking elements of reforming the judiciary. 

One of the report’s authors was the distinguished Irish barrister Richard Boyd Barrett, who once worked in the Irish attorney General’s office. The EU is a system of rules, and the EU can only survive if its rules are fairly and uniformly enforced by the courts of the 27 member states.

National Courts’ Role in the EU’s Common Market

The EU is a common market because it has a common system for making, interpreting, and enforcing common rules that apply to the citizens of its member states. The national courts interpret these common rules in each member state. 

The integrity of national courts is vital for the EU. This issue lies at the heart of the difficulties the UK is experiencing as it tries to leave the EU and enjoy the benefits of the EU’s common market for goods without taking part in the common system for making, interpreting, and enforcing the rules of the common market. 

Poland’s Judicial System and EU’s Call for Independence

The root cause of the disagreements between the EC and Poland and Hungary is whether their judicial systems are independent. If one lives or does business in Poland, going to the Polish courts is the only way to get one’s common market rights. This course should be open to you, whether you are a Polish citizen or not, and whatever political opinions or status vis-à-vis the government of Poland.

The EU insists courts be independent so everyone can enforce their rights as equal EU citizens, anywhere in the EU, at all times. This rigorous insistence on the rule of law is one of the reasons many European countries want to join the EU to get the EU seal of approval for the rule of law in their country and be attractive to overseas investors and other visitors.

I visited Serbia and heard Prime Minister Ana Brnabić stress that accession to the EU was the top priority for countries in her region. She said the rule of law and transparent administration, demanded as preconditions for Serbian membership of the EU, are crucial to winning foreign investment and access to cheaper finance for Serbia.

Politicizing Polish Courts

If the Polish courts were allowed to become politicized and were no longer seen as objective in interpreting EU law, it would damage the EU and harm Polish citizens. Such a scenario would discourage investment in Poland and remove one of the fundamental reasons for the existence of the EU: the rule of law.

The EC started proceedings against Poland under Article 7(1) of the EU Treaties over aspects of the restructuring of the Polish judiciary. On an application to it by the EC, the European Court of Justice (ECJ) ordered the Polish government to stop appointing many new judges to its Supreme Court in recent weeks. 

The ECJ feared the new appointments might politicize the Polish courts. The Polish government can propose this large number of new appointments because it is retiring up to 40% of existing judges based on introduced upper age limits.

The age limit will only be applied in some places. The government can grant discretionary extensions to some judges whose judgments it likes. The well-founded fear is it will replace these retired judges with judges sympathetic to the views of the present government.

The independence of the office of the Director of Public Prosecutions (DPP) in Ireland was an important reform made in the 1970s, which successive taoiseach have since protected with the merger of the minister’s offices for justice and the public prosecutor. The merger creates fear that politicization will affect prosecutorial decisions. 

Venice Commission’s Report on Polish Judiciary Reforms

The Polish “reforms” provided that the president of the republic, not the court, would establish the rules of procedure for the Supreme Court of Poland, determining which categories of judges would hear what sort of case, which is unacceptable political interference. The Venice Commission’s report, coauthored by Barrett from Ireland, concluded that the Polish government’s proposed mechanism for an extraordinary review (and possible reversal) of past judgments was “problematic.” Such a conclusion is an understatement. 

The report noted it was retroactive and allowed the reopening of cases decided before the proposed law was to be enacted. The Venice Commission concluded the proposed legislative and executive power to interfere in a severe and extensive way in the administration of justice.

It is important for the EU that the Polish government realizes that more is needed for free elections. A country cannot enjoy the benefits of EU membership or democracy unless it respects the rule of law in Article 2 and Article 7 of the EU Treaties. The credibility of the EU and the integrity of the EU single market are at stake in the Venice Commission’s dispute with Poland, to a greater extent than with the UK’s attempt to “have its cake and eat it” on trade!

[Conner Tighe edited this article.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.