Poland will not impose early retirement on its Supreme Court justices after all. Bowing to an October European Court of Justice ruling, the Polish legislature has voted to repeal a law that lowered the mandatory retirement age for its Supreme Court justices from 70 to 65. That law, part of Polish judicial reforms passed in 2017, ran afoul of the European Commission, which has repeatedly described the reforms sponsored by the ruling Law and Justice party, or PiS, as incompatible with “EU laws, values, and principles.” Publicly, the European Commission is pleased. In Warsaw on Friday, its vice president called the repeal of the retirement provision a “welcome step.” Under the cover of anonymity, however, EU officials told the Financial Times that the move “would not resolve the broader standoff with Warsaw.” If that is the European Union’s true stance, it raises the question of whether Poland can do anything to completely satisfy Brussels short of bending the knee.
Much-Needed Reform or Threat to the Rule of Law?
Judicial reform in Poland is admittedly a complicated issue. Poles believe that their judiciary needs reform: An August 2017 Public Opinion Research Center poll found that 81 percent of those surveyed believed that reform was necessary. At the same time, Poles are highly skeptical of the PiS’ changes. A July 2018 survey by the Warsaw-based Institute for Market and Social Research found that 54 percent of respondents had a negative view of the reforms and just 39 percent approved. Those numbers are in line with overall support for the PiS, which won parliamentary elections in 2015 with 38 percent of the vote.
In ruling that Poland’s democratically elected government violated the rule of law by responding to a legitimate desire of the Polish people, the European Union has gone out of its way to inject itself into a member state’s highly charged, decidedly domestic political debate. That member state’s government conceded to the ECJ’s ruling and reinstated justices that were forced to retire in July – making it difficult to argue that the rule of law is in jeopardy in Poland. The argument is even harder to make considering that PiS performed dismally in local council elections in October, winning just a 32.3 percent plurality of votes and losing the Warsaw mayoral race by 4 percentage points. If Poles are still unhappy with PiS’ performance, they can show the party the exit via the ballot box in the November 2019 parliamentary elections.
Poland and the EU Need Each Other
Poland’s government is euroskeptic, but its people are not. An April 2018 European Parliament survey found that 70 percent of Poles believe their country’s membership in the European Union is a good thing. Just 5 percent say it is a bad thing – tied for the second-lowest EU disapproval rate in the soon-to-be EU27. (The remaining 25 percent are ambivalent.) This is not surprising. The European Union emerged from institutions that were designed with two key functions in mind: to tie Germany into an economic system that would prevent it from attempting continental domination again and to unite European powers against the Soviet Union. In other words, the EU is designed to weaken Poland’s two greatest historical enemies. EU membership has economic perks, too. From 2008 to 2015, EU-supported government spending accounted for over 5 percent of Poland’s annual gross domestic product. In 2017, Poland received 12 billion euros ($13.6 billion) from the EU – 2 percent of GDP – while contributing just 3 billion euros.
It is little wonder, then, that PiS has executed this hairpin turn. Whatever the merits of the claims that PiS judicial reforms violated the rule of law, Polish opposition parties have effectively made the case that PiS’ reforms could jeopardize Poland’s EU membership. The current Polish government is both nationalist and euroskeptic, but it isn’t suicidal: To continue to defy popular opinion would have been bad politics, and it knows that it will not survive as the ruling party if voters are convinced that its reforms could cause Poland to crash out of the EU or, at the very least, be subject to serious EU sanctions. Poland’s desire for greater autonomy and the continued existence of the EU are not necessarily mutually exclusive.
It is also in the interests of the EU’s major powers to keep Poland in the fold. For Germany, Poland is not simply another export market – for years, Germany has capitalized on Poland’s cheap and well-educated labor pool to maximize the efficiency of its supply chain. Germany also needs the EU to continue buying German products, and it needs still more markets to which it can sell. Poland’s cooperation in this is critical. The goal for Germany is to bring more countries into the EU fold, not fewer. Brexit can be explained away by the U.K.’s historical distance from and suspicion of the European project – but any real move by Poland to exit might cause a domino effect in Eastern Europe. As for the EU’s other heavyweight, France is both less in need of Polish cooperation and less important in Europe than it thinks. While France has a powerful military, the EU has become an economic entity, and there are limits to how hard France can push without toppling the structure – an eventuality that, like Poland, its interests dictate it must avoid.
Why Brussels Won’t Sacrifice Its Authority
Indeed, the issue here is not Poland, nor is it Germany and France: It is the European Union. Poland aims to preserve its independence by keeping Germany and Russia in check. Germany needs markets for exports. France, too, needs to keep Germany in check and has nostalgic delusions of imperial grandeur. The entity that is causing trouble here is not any EU member state, but rather the union itself. The EU has an imperative of its own – to maintain and increase its authority over its member states. Bureaucracy has created an entity that no longer pursues the interests of its members but instead pursues the interests of a bloc that is more authoritative and sovereign than its members originally thought it should be. Case in point: The same survey that found that 70 percent of Poles support Poland’s membership in the EU also found that just 42 percent of Poles think the EU is “going in the right direction.”
For 46 years, Poland was shrouded behind the Iron Curtain. Membership in the EU is not just strategic or economically beneficial for Poles. It also ties the Polish people to the European project. Polish identity is no longer wrapped up in enforced isolation: Poles are now proud citizens of an independent country that is also an emerging power in Eastern Europe and is as European as any other EU member state. This is not a country that wants a standoff with the EU and yet the EU is behaving like Poland wants to bring the whole edifice down. If the EU is acting in good faith, the standoff should soon be resolved. The ECJ ruling found two legal problems with the PiS reforms: the application of new retirement ages to previously appointed judges, and the granting of discretion to the Polish president to extend judicial service of Supreme Court judges. The PiS government has effectively addressed half of the ECJ’s concerns, and if it is willing to compromise on the former, it will likely compromise on the latter, especially in its weakened state.
But this is not (and never has been) about judicial reforms. The EU sees in the PiS government a potential challenge to its authority. It has singled out Poland, as it has singled out Hungary and Italy, because Brussels cannot tolerate defiance from the periphery. On this particular issue, there will be no significant backlash: For one thing, a large majority of Poles agree with the ECJ, and for another, membership in the EU is far more important, even for the PiS government, than securing the authority to make certain judicial appointments. Eventually, whether in Poland or elsewhere, the EU will intervene this heavy-handedly on a more contentious matter. At issue will be not whether a judge can serve until the age of 65 or 70, but the sovereignty of the member state in question. Even in as europhilic a country as Poland, that will smack of tyranny too much to abide.