EU Scores Rare Win Against Illiberalism in Clash With Poland

(Bloomberg) -- The European Union scored a tactical win in its fight to contain the populist forces that are challenging its democratic values, forcing Poland’s nationalist ruling party to back down in its push to wield control over the country’s Supreme Court.

The Law & Justice Party is at the vanguard of a push to roll back the EU’s multicultural and rule-of-law norms in favor of "illiberal democracies" -- a phrase coined by the movement’s standard bearer, Hungarian Prime Minister Viktor Orban. On Wednesday the party submitted a draft law to reverse rules that forced dozens of judges on the Supreme Court to retire before their terms expired in what critics called a political “purge.”

The legislation is a response to an emergency injunction from the European Court of Justice, which demanded Poland reverse the changes that lowered the retirement age for jurists. The injunction was a result of an unprecedented lawsuit against an EU member, which the bloc’s commission said was undermining the rule of law.

“The commission scored a point showing that principled resistance makes sense,” Marcin Zaborowski, senior associate at Visegrad Insight, a think-tank focused on central Europe. “It also creates a precedent that will be closely watched across the region.”

The U-turn comes as Law & Justice scrambles to recover from a smaller-than-expected victory in October regional elections, where the party’s clash with the EU boosted support for opposition parties. It’s also reeling from the shock resignation of its appointed head of the financial markets watchdog following a newspaper report that he had asked the owner of a troubled bank for a bribe in exchange for favorable treatment.

The first opinion survey carried out since the scandal broke showed support for Law & Justice dropping five percentage points to 33 percent. That’s still seven points ahead of the biggest opposition group, but if it were to remain at that level, it would give the opposition a chance to block the party from seizing a new majority in general elections next year.

Simmering Defiance

The government heatedly argued last week that its changes to the Supreme Court don’t undermine its independence, and it accused the EU of lacking evidence to attack the judicial overhaul. Prime Minister Mateusz Morawiecki, who has vowed to "re-Christianize Europe" and help the rest of the EU "with proper values," has repeatedly said that Poland respects the rules of the bloc.

Andrzej Dera, a minister in the chancellery of Law & Justice ally President Andrzej Duda, suggested that the party wasn’t really backing down.

“The essence of the matter can be explained by a saying applied to judo: back off to win,” he said. “The point is to avoid fines that could be imposed by the EU court and implement the judiciary reform.”

While the draft legislation -- which cleared the lower house in a fast-track legislative process -- appears to eliminate the most important breaches to the political independence of the Supreme Court.

The top tribunal said the new bill doesn’t reverse other sweeping changes which continue to undermine the justice system. They include giving the justice minister power to appoint the heads of ordinary courts, the political takeover of the body that promotes judges and the packing of the Constitutional Court with ruling-party loyalists, the court said.

“I have been following the Hungarian case for too long to not be extremely suspicious,” said Laurent Pech, a professor of European law at Middlesex University in London. “Every single rule-of-law probe recommendation has yet to be complied with.”

©2018 Bloomberg L.P.