The battle for the rule of law in Poland will have consequences across Europe

A diminutive, determined-looking judge in her mid-60s, Polish Supreme Court President Magorzata Gersdorf is one of the faces of judicial resistance to Poland’s ruling right-wing Law and Justice party (PiS). The outcome of the resistance, which is still ongoing, will have profound consequences for the rest of Europe.

Using a series of breathtakingly brazen manoeuvres, PiS has already taken control of Poland’s Constitutional Tribunal and the National Council of the Judiciary, the body that appoints Polish judges, and in 2017 introduced a new retirement age for Supreme Court judges to clear the war for a takeover by loyalists.

The legislation just so happened to come into force on Gersdorf’s 65^th birthday, but she and several other judges, citing the provisions in the Polish constitution safeguarding judicial independence, refused to submit. The government watched on helplessly as they turned up for work regardless, with Gersdorf carrying a large bouquet of white flowers and cheered by hundreds of supporters.

This week a new front of judicial resistance was opened, this time at the European level, thanks to a new ruling by the European Court of Justice. While the Polish case may itself only be of passing interest to those beyond observers of central Europe and European law, the ECJ’s ruling marks a major development in a slow-burning crisis that is already reshaping Europe’s legal order, and which in the long-term may determine the future shape—even the future existence—of the Union itself.

For several years now, member states and the European Commission have been caught between the immediate risk of confronting authoritarian-minded governments, thereby exacerbating existing political fissures across the continent, and the long-term risk of the European legal order disintegrating as more members, emboldened by the examples set by Law and Justice in Poland and Viktor Orban’s Fidesz in Hungary, see fit to violate the basic democratic and legal framework that holds the union together.

Tools developed over the last decade, such as the relatively new “Article 7” process to censure and potentially sanction backsliders, have foundered as member states baulk at the notion of sitting in judgment on their peers. Poland, Hungary, and other states may suffer in the upcoming budget process, but any decisions made now will not be felt for many years.

EU institutions have been criticised by eurosceptics across the continent for “meddling” in the internal affairs of member states accused of wrongdoing. But this betrays a basic misunderstanding of what is at stake. All national courts are also European courts, and the European legal system is based on the principle of “mutual recognition”—the notion that a court in one member state can have faith in the decisions made by a court in another. If one part of the system ceases to function, the legal order itself—the foundation of the Union—will break down.

In the absence of political resolution to the ongoing rule of law crisis, the ECJ has felt compelled to intervene. Last year, it took the opportunity of a case brought by Portugese judges challenging austerity measures to reframe its mandate, assuming the right to safeguard the independence of all national judiciaries throughout the Union. This week’s ruling marked the beginning of a new phase of a more interventionist court.

On Monday, the ECJ ruled that the Polish government’s attempt to introduce the new mandatory retirement age contravened European law. The ECJ’s actions echo those of another powerful European institution forced to take action to fill the void left by political leaders—the dramatic intervention in the euro crisis by the European Central Bank (ECB) in 2012, when it too reinterpreted its mandate in developing radical new monetary policy.

In each case, the ECJ and the ECB filled a void left by ineffective political decision-making. In each case, these were just, necessary, and creative interventions, taken as a means of preventing a chronic crisis from spiralling out of control. In each case, however, the full implications of these institutional developments remain under appreciated, and the root causes of the crises themselves remain unresolved.

The problem is not just the willingness of certain governments to violate and even to scorn and deride the democratic values upon which the Union is founded, but also the unwillingness or inability of other governments to deal with a chronic problem no less threatening to the Union’s future existence than the euro crisis.

In turn, this reflects a wider lack of seriousness and failure of imagination across Europe, including the UK, when it comes to understanding the gravity of contemporary threats to the rule of law. If you visit Poland today, you will find a peaceful, relatively stable, and increasingly prosperous country. But that doesn’t change the fact that Polish citizens no longer enjoy formal protection of the rights and freedoms outlined in their constitution. Chaos is closer than you think.