Aktualne kierunki rozwoju władzy sądowniczej. Marsz Tysiąca Tóg rok później
2.
In the EU, as in the rest of the world, the polarisation of the political debate is also leading to deadlocks that end up in the use of the Judiciary. A clear example of this reality are the Conclusions adopted at the European Council meeting of 10 and 11 December 202031. Presented as the way of solving a deadlock, we may see them as nothing more than the “judicialization of politics”: unable to reach a political decision, not only did the Council invade the sphere of competences of another EU institution (the Commission), imposing an obligation of non-action until the completion of the guidelines on the way it will apply the Regulation on Rule of Law, but it also decided that those same guidelines would be finalised only after the judgment of the Court of Justice in an action for annulment with regard to the Regulation (that, at that time, was already announced would be introduced), “so as to incorporate any relevant elements stemming from such judgment”32. This is a clear case of all political actors trying to divert attention from a political deadlock they were unable to solve. The outcome is easily predictable: any decision taken by the CJEU will be presented either as a victory or a defeat by all the sides in conflict and the Court will be accused of having taken a political decision.
On the other hand, we have been also seeing attempts to distort EU Law and its concepts. Prof. John Morijn already alerted us to the fact that we may be seeing more than just a battle between EU institutions and a Member State (Poland) that is knowingly infringing EU Law: we could be witnessing a true challenge to the notion of Rule of Law and an attempt to change its understanding. In his words, the argumentation of the Polish government before the ECJ “felt like a craving for acknowledgment in Luxembourg and elsewhere that what is openly pursued in Poland is not only legal but also legitimate as a matter of Union law”33. This is in line with recent news that Poland and Hungary plan to establish a “Rule of Law institute” to assess how the rule of law is being upheld across the EU. In the words of the Hungarian Foreign Minister, “the aim of this institute of comparative law would be that we should not be taken for fools”34.
This narrative must also be seen in the global context of rise of populism. Seeing international institutions and courts as obstacles to their illiberal speech, authoritarians and wannabe authoritarians are trying to shape international law to meet their goals and objectives, blurring concepts associated with democracy35.
3.
In my view, much of the future development of the Judiciary will depend on our ability to avoid this “populist trap”.
And for that to happen, judges and prosecutors will have to step up and play their decisive role.
We must keep the debate juridical and the defence of the Rule of Law on a law and principle-based discussion. Infringement procedures initiated by the Commission are obviously important, but they will always be easily labelled as politically motivated. Only with the impulse of national judges, through preliminary requests, such as the brave Polish colleagues have been doing in recent years, will the European Court of Justice be able to further move forward, and the quicker it does, the more it will be shielded against attempts to blur and distort concepts. This explains why the Polish government was so worried about preliminary requests and tried to introduce the “muzzle law”.
The “March of the 1000 Robes” that took place one year ago was the moment when Judges from all over Europe brought to light the words of Julie Allard and Antoine Garapon, when they said that the Judiciary is ”the most universalizable, but also the most universalizing, of the three powers described by Montesquieu”36. Regardless of our nationality and historical backgrounds, we all speak the same language – that of Rule of Law, respect for the independence of the Judiciary and fundamental rights.
Thank you very much for your attention and I wish you all a good conference.