Marcin Matczak is a lecturer in law at Warsaw University. On the occasion of a photo exhibition, inaugurated by the EPP Group at the European Parliament and showing recent demonstrations in the country, Matczak told EUROPE his views on the rule of law in Poland, and encouraged the Commission to be determined in continuing its infringement procedure on the Polish Supreme Court. (Solenn Paulic)
Agence Europe : This summer the Polish Supreme Court requested a preliminary opinion from the ECJ on the law on the retirement of judges from the Supreme Court. What is the situation right now?
Marcin Matczak: I think we are facing some kind of battle in Poland on who will be quicker – the European Court of Justice (ECJ) or the Law and Justice Party (PiS) government?
The procedure of appointing new judges is underway. We think it will be finished around the end of September or beginning of October. Coincidentally, it is exactly the time when the infringement procedure started by the European Commission can reach the ECJ (Ed: Warsaw has one month to respond to a reasoned opinion sent on 14 August - see EUROPE 12077) and the ECJ can issue interim measures.
And what we see is that the authorities responsible for electing judges are speeding up the appointment procedures in order to tell the ECJ: 'sorry, we can do nothing, the procedure is finished'. For people and judges in Poland it is really important that the ECJ takes a decision quite soon. If not, there will be nothing to do for the ECJ.
If the ECJ says the law was wrong, there will be no real life effect because all the judges will have been removed. We really hope that the ECJ will be quicker because that would give a chance to stop the whole procedure.
What do you mean by decision with no real effect?
Experience in Hungary shows that the only result will be financial fines for Poland for breaking the EU law, and I think the Polish government is prepared to pay money for that but not to withdraw its decision because for them it is a very important political decision to have the Supreme Court renewed with new judges.
For people of course, it makes a big difference: if the procedure is stopped, that is one scenario, or if the procedure is finished. The fines are not going to change anything. I am not saying the ECJ is a bit late with the decision. It does not matter, it is still an important decision, but at the moment, we all hope that ECJ will stop the appointment procedure and then we will have time to decide. As you know, courts in Poland are now all taken over by the politicians, and the ECJ is the only independent court that can decide on this issue.
Over the summer, we have seen people being arrested by the police for exhibiting with large banners with the word “Constitution” or for putting up posters on monuments. What is happening?
First of all, our government, the Law and Justice government, has some authoritarian tendencies, and those tendencies result in limiting the freedom of assembly, for example.
In Poland, before the PiS, the freedom of assembly for the people to meet and protest was unlimited. The government has introduced new laws and also has tendencies to limit freedom of speech. It is no longer possible in Poland to express all opinions, especially if you want to express them in some kind of 'happenings'. Because putting posters on monuments is some kind of artistic 'happening'. Unfortunately, the government and the police think it is improper. I cannot understand why! Fortunately enough, the courts have not agreed with the police that it was a crime, and they have let people free. But I think it is a very dangerous precedent.
If you think you should not say something because you think you will be arrested by the police, you will think twice (before you say it). And I think the Polish government is sending a message to people: before you say something against us, think twice. That is a new phenomenon. I have never experienced anything like that in the past.
In less than two weeks, there will be a new hearing on rule of law during the GAC. What do you expect now from this Article 7 procedure? Are you not afraid that the procedure will slowly but surely be buried?
Of course, there is a risk. It is connected with the unanimous decision, but my feeling is that the European Commission is trying to focus now on the infringement procedure and to slow down the Article 7 procedure. The infringement procedure is in some sense easier because it goes to the Court. The ECJ is not a political body.
The Article 7 procedure is risky. My feeling is that the European Commission is trying to keep it alive to have some kind of leverage, tools of pressure on the Polish government – but I believe the infringement procedure is the priority. Nevertheless, it is important for the Commission to pursue both procedures because for right wing governments, like in Poland or the Hungarian one, these are governments of strong men and they do not respect weak people.
For the Commission, the most important thing is now to show power, to show that they are effective. Losing the Article 7 procedure would be a great success for the Polish government and of course for the Hungarian government. But the EU has other tools like the budget and the rule of law. The Commission has many instruments it can play with now.
There will be new elections in the country next year (local, national and European). What other political choice do Polish people have, other than the Law and Justice government which remains quite popular?
I am not a prophet but there are new political powers organised in Poland
See Robert Biedroń, who some people say is like the Polish Macron! He is a politician and president of one of the Polish cities. He is openly homosexual, which is interesting in a conservative country like Poland. He is quite popular and charismatic, and he has just announced he will establish a new political party at the beginning of 2019. Perhaps it can change the political situation.
All the scenarios are open at the moment. One of the factors important for the Polish election is the relationship between the Law and Justice government and the EU. At the beginning of August, the Polish deputy minister said that Poland would ignore the ECJ verdict. That raised a lot of discussion in Poland: what is the purpose of this government? Are they going to stay in EU? Or is it the beginning of a ‘Polexit’?
One important factor, which can influence the election, is also what will happen with the EU during the coming years. From this perspective, any decision of the Commission will be a test for the Law and Justice government to declare: 'are you still with us or not?'
The Polish people are very supportive of the EU and they would not like a government which is anti-European. For sure, people remain supportive of the government (Ed: 40 % in the polls, 37/38 % for the Civic platform) but it is difficult to say whether the social factor or the rule of law factor secures this support. It is very difficult to predict how it will impact the election, but the social factor is getting less and less fresh, less and less effective. The government is less popular than it was at the beginning.