“Et nos servi autem legum et liberi esse possimus”
(“We are slaves of the law so that we may be free”)
Cicero’s injunction saw in the rule of law the apparently paradoxical but essential foundation of civic freedom. Exercising the freedom to tear up the rule of law – specifically, emasculating judicial independence – is not then an expression of freedom, as our Polish and Hungarian EU partners would suggest, nor a vindication of their national autonomy, but a first dangerous step on the road to dictatorship.
It is most certainly not in spirit of the political union that they have joined freely and to whose values and membership a majority of their citizens still firmly aspire.
The Poles took one more step down that road this week when Poland's deputy prime minister Jaroslaw Gowin suggested that if the Court of Justice of the European Union (CJEU) ruled against his government in a battle over its bitterly contested judicial reforms, Warsaw would have no option but to "ignore the ruling of the [court] as contrary to the Lisbon Treaty and the whole spirit of European integration".
He claimed that the EU will take the first step towards "auto-destruction" if the CJEU rules against Poland. It would be "fuel for Eurosceptic groupings" throughout Europe. "I say this with pain, as a supporter of EU integration. The EU is a brave and far-reaching project, but it can only survive as a Europe of nations," he warned.
No such ‘confrontation’
Michal Dworczyk, an adviser to prime minister Mateusz Morawiecki, sought to play down the comments, "for now Mr Gowin's opinion", and he hoped there would be no such "confrontation". Morawiecki himself minimised the importance of the court, whose rulings, he said, were not being implemented by other EU states, insisting an agreement will probably be found between Poland and the EU.
But Gowin's broadside against the EU, in an interview with Polish weekly Do Rzeczy, marks a potentially serious escalation of the dispute with the EU over legislation to enforce the early retirement of supreme court judges seen to be out of sympathy with Law and Justice.
This forced about one-third of the court's members, including its head, Malgorzata Gersdorf, out of office last month. Gersdorf branded the retirements a "purge" and insists she is still in office.
The conformity of that legislation to EU treaty principles is being considered by the CJEU. This month, Poland’s supreme court, still operating under its old majority, decided to suspend applying parts of the retirement law. It has sent five questions to the CJEU and will await an independent opinion before enforcing all parts of the retirement law.
Meanwhile, the country’s Judicial Council has sent the names of 12 new nominee judges to the president for approval.
We have already seen in the bitter two-year stand-off the unprecedented opening of disciplinary action, so-called Article 7 proceedings, against an unrepentant Poland by the European Commission and fellow member states. That could ultimately lead to the suspension of voting rights in the EU (although Hungary has promised to veto such a move).
Commission vice-president Hans Timmerman has made repeated trips to Warsaw to try to persuade the government to think again and the EU in July issued a formal notice to the Polish government of an infringement process.
Serious matter
Warsaw’s defiance of what might currently be seen as a political measure is one thing – albeit not in the spirit of the union’s treaties. But a threat openly to defy the legal ruling of the court, whose jurisprudence the country has signed up to in joining the EU, is an altogether different and more serious matter. Opposition politicians in Poland warned that would represent the first step of “Polexit”.
That is unlikely, as even Law and Justice remains firmly committed to membership. But Brussels remains determined to bring Warsaw to heel, demonstrating that the union is more than an economic club and that the concept of “political union” is enormously important to the political authority of the EU. The commission may also initiate similar measures against Hungary.
It will be no easy task, however. The unanimity rule for Article 7 makes the treaty provision an extremely blunt weapon. Poland appears ready to defy the court. And the threat of financial sanctions in the next budget round appears politically impossible, with several member states unwilling to set a precedent of wielding such a weapon.
In the end, however, Poland will find that it may pay a significant price for the political isolation it increasingly finds itself in. Not least in its ability to persuade fellow member states to support projects or policies to which it is committed. There is no such thing as a free lunch in life, or the EU.