Not to play along

von Maximilian Steinbeis

Dear Friends of Verfassungsblog,

In Poland, there will soon perhaps still be independent judges, but no independent judiciary. Poland can no longer be regarded a trustworthy state under the rule of law. This finding is delivered and substantiated by TOMASZ KONCEWICZ, by MATEUSZ MAZZINI and by MARCIN MATCZAK in their respective posts on Verfassungsblog this week, and for those who hope for President Duda to come forward and save the constitution, MATCZAK’s post is a highly recommended, yet unedifying read: he shows that Duda’s alleged "veto" is mostly a sham. In Brussels and Berlin, in the meantime, there is a lot of hand-wringing and hair-tearing and indignant-tweets-tweeting. Vice President Timmermans exclaims that the EU Commission is now "very close" to triggering Article 7 against Poland. None of that will change much in the short run. Decisions by the Polish judiciary no longer deserve the trust necessary for the functioning of the legal community. That’s just how it’s going to be.

How do we deal with that? I see three possibilities.

The first could be called the Merkel method: We don’t do much at all. We wait and see. Maybe it will not be all that bad. This is what we did with Hungary, didn’t we? Sure, it’s not great, but by and large, we manage. There hasn’t been a properly independent judiciary in Hungary for years now, and the EU is still standing, isn’t it?

It will come as no surprise to the readers in this blog that I’d find this a terrible solution. Firstly, there are good reasons for the assumption that it was only possible to get as bad in Poland because we had previously allowed Hungary to get away with the same deed. Most of all, the whole legal system of the EU would be infected with authoritarianism. Of course, Polish courts will continue to work as well or as badly as before in the vast majority of bread-and-butter cases. They usually do in authoritarian states ...

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