This past Thursday, February 3, 2022, President Andrzej Duda of Poland’s Law and Justice (PiS) party submitted legislation to dismantle the Supreme Court’s Judicial Disciplinary Chamber. This legislation represents the culmination of longstanding pressure on Poland from the European Commission (EC), which cited the Chamber as a dire threat to the country’s already faltering democracy.
The EC’s involvement offers a success story of an external, international agent intervening to uphold democratic standards. By no means does the EC present a comprehensive remedy for Poland’s descent into authoritarianism, however. Yet it does possess the tools to stall it – at the very least. The EC remains wary of any attempts from the PiS to exploit the legislation’s loopholes, and has yet to issue an official comment on its release.
Granted the authority to deny judicial immunity from Polish courts, the Chamber has opened a floodgate of judge dismissals on political grounds. Those who voiced anti-government viewpoints were promptly terminated. Remaining judges quickly fell in line with PiS rhetoric. The result was a controlled judiciary whose members faced the ever-looming threat of prosecution for their decisions.
Poland’s checkered history of successful judicial reform necessitated that an outside entity step in. Over the course of Duda’s seven years in power, the PiS party repeatedly sought to purge Polish courts of political opposition. In 2017, it motioned to lower the retirement age for judges from 70 to 65 under the guise of fighting corruption, but allowed President Duda to grant a five-year extension to whomever he so pleased. In 2018, it allowed the Lower House of Parliament, under PiS control, to select members of the National Council of the Judiciary. Judges who questioned the legitimacy of its appointees were subjected to fines, salary reductions, or even dismissal at the discretion of the Chamber.
Then, shortly after the Chamber’s formation in 2019, the EU Court of Justice found it in violation of the EU provision for impartial tribunals established by law. Yet the PiS government refused to dissolve it. After the EC sent a letter of formal notice to the Polish government demanding compliance, Poland affirmed it would eliminate the Chamber but provided little further detail as to when. The President of the Chamber then proceeded to hear disciplinary cases of court judges, despite the mandate that its activities be entirely suspended. The Chamber’s defiance prompted the EC to issue Poland a daily fine of $1.13 million, as well as to withhold the country’s designated COVID recovery funds. These penalties have hindered Poland from fully executing its proposed National Reconstruction Plan, the fourth largest COVID recovery plan in the EU.
At face level, the EC’s crackdown on Poland appears unduly severe. Poland’s Justice Minister Zbigniew Ziobro denounced it as “blackmail” and “extreme economic violence,” motivated by “arbitrary political unchecked reasons.” The intensity of the EC’s response may seem more well-suited to an executive coup d’état, rather than to judiciary reforms. Yet such reforms have the potential to be every bit as oppressive as a coup. As Nancy Bermeo argues in her paper “On Democratic Backsliding,” today’s would-be autocrats opt against military-aided seizures of power in favor of a far more stealthy, pernicious approach: executive aggrandizement. Among the most lethal weapons in the arsenal of authoritarianism, executive aggrandizement occurs when an elected executive gradually consolidates power horizontally.  The Chamber is a textbook example.
In How Democracies Die, authors Steven Levitsky and Daniel Ziblatt more vividly describe this process as “capturing the referees.” Executive aggrandizement enables politicians to play the “game” of democracy by their own rules, as they have sufficiently curbed opposition from the very institutions designed to keep them in check.  In Duda’s case, the Chamber empowered his government to legally dismiss any judge who ruled against PiS interests or spoke out against its policies. Judge Igor Tuleya, for example, was discharged by the Chamber after publicly questioning the legality of a vote by the PiS-controlled Lower House of Parliament.
Even in the context of executive aggrandizement, the EC’s zero-tolerance stance may still seem excessive. Can the EC’s draconian response be justified, even if executed in the name of preventing more authoritarian tendencies? Findings from Robert Dahl’s Polyarchy: Participation and Opposition reconcile this dilemma. A government is more likely to be democratic if the costs of suppressing opposition exceed its costs of toleration.  It would be naive to assume Duda’s motivation for dissolution was unrelated to mounting fines; his announcement of the new legislation was entirely devoid of democratic impulse. The EC’s punishment increased the Polish government’s costs of suppression, quite literally, to create an overwhelming incentive for democracy. Bermeo, Nancy. “On Democratic Backsliding.” Journal of Democracy 27, no. 1 (January 2016): 5-19. https://muse.jhu.edu/article/607612, 6-8.  Levitsky, Steven, and Daniel Ziblatt. How Democracies Die. New York: Broadway Books, 2019, 79-81.  Dahl, Robert A. Polyarchy: Participation and Opposition. New Haven: Yale University Press, 1971, 14-15.