The High Court sounds the alarm

Poland

Poland’s prime minister Mateusz Morawiecki with European Commission president Jean-Claude Juncker in Brussels last week. Photograph: Yves Herman/Reuters

Poland’s prime minister Mateusz Morawiecki with European Commission president Jean-Claude Juncker in Brussels last week. Photograph: Yves Herman/Reuters

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It’s no secret that Irish judges have looked askance at the steady erosion of the independence of their Polish counterparts. In April last year, the Association of Judges of Ireland, which includes almost all members of the bench, issued a rare public statement to put on record its “grave concern” at events in Warsaw. The association’s executive stressed that in order to maintain trust between judges in the EU, “which is necessary as the basis for mutual recognition”, judicial independence was essential. “Respect for the rule of law demands no less,” it added.

That statement – in effect a gesture of solidarity from a quasi-trade union to foreign counterparts – was noteworthy but of no legal consequence. On Monday, however, the situation escalated when the High Court halted an extradition case involving a Polish citizen over fears that judicial reforms there have undermined the independence of the courts and threaten the rule of law.

Ms Justice Aileen Donnelly said “immense” legislative changes to Poland’s legal system called into question the mutual trust that underpins the European arrest warrant system. As Poland “appears no longer to accept that there are common European values which must be respected”, the judge said she would seek clarification from the European Court of Justice. A former member of the constitutional tribunal, Poland’s highest court, likened the move to “a nuclear bomb”.

The High Court’s decision was taken on legal grounds. But opponents of the overhaul overseen by the nationalist Law and Justice Party – a sweeping set of changes that includes the merger of the general prosecutor with the justice minister, the dismissal of court presidents and controversial appointments to the constitutional tribunal – will hope it has a political effect. That’s unlikely. Warsaw has proved unembarrassable and impervious to moral pressure from its neighbours.

Poland’s drift towards authoritariansim has put the EU in a bind. The European Commission has responded by initiating what is called an article 7 procedure – a means of sanctioning breaches of the union’s values. But since unanimity is required to pursue that option and increasingly autocratic Hungary has said it will support Poland, article 7 is a dead-end. Some EU leaders have argued that Poland and Hungary should be penalised in the next round of budget talks through cuts to their structural funds. The problem is that reducing the money available for regional development would punish the people in these countries and risk pushing more voters into the arms of the right-wing populists.

Increasingly that looks like the least worst option. The alternative – doing nothing, and conceding that the union is powerless when faced with such egregious breaches of its common values – would compound the long-term damage to the European project.

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