TTHE MIGRANTS had nowhere to go. Behind them stood the brutal Belarusian security guards, in front of them rows of Polish soldiers. Mostly Iraqi Kurds, they had been lured to Minsk, the capital of Belarus, with promises of passage to Germany, then thrown into the forests, ordered to cross the border fence and beaten if they did not. . On November 16, Belarusians moved hundreds of them to a border post. Belarusian dictator Alexander Lukashenko hoped that by provoking violence he could embarrass Poland and divide the EU, who imposed sanctions after stealing an election. When the migrants threw stones, the Poles sprayed them with water cannons.
Lukashenko’s use of defenseless migrants as propaganda tools is a problem for the EU, but especially not in the way he hopes. On the contrary, its border crisis complicates the conflict between the European Commission and Poland over the rule of law. Since taking office in 2015, the Polish Law and Justice Act (PIS) has passed laws that give the government power over the courts. The European Court of Justice (CJEC) ruled that these laws violate EU rules on judicial independence and should be rescinded. After years of procrastination, the commission began to enforce these judgments. He must now strike a balance between supporting Poland on border security and keeping the pressure on legal issues.
The resumption of judicial power by Poland is modeled on that of Hungary, the European pioneer of illiberal democracy. PIS amended the rules governing its National Council of the Judiciary, which selects judges, so that its members are appointed by parliament and the Minister of Justice, without the intervention of the judges themselves. The CJEC decided that, since the council is no longer independent, judges appointed under the new rules are not judges under EU law.
Many of them are poorly qualified PIS loyalists. PIS filled the Constitutional Court and set up a disciplinary chamber of the Supreme Court which can punish judges for decisions he does not like. The CJEC ordered Poland to dissolve the disciplinary chamber. The government says it will, but has yet to come up with a plan to do so.
This rule of law conflict threatens the very structure of the EU. In October, trying to get out of the CJEC judgments, the Constitutional Court of Poland ruled that the articles of the founding treaty of the union dealing with judicial independence violated the Polish constitution. This called into question the principle that European law prevails over national law, without which the union would have little power. “We would be like the UN, says one EU official.
The commission has new tools of persuasion. Until it abolishes the disciplinary chamber, Poland accumulates fines of 1 million euros ($ 1.1 million) per day. PIS expects € 36bn from the EUthe new covid-19 stimulus fund to finance its ambitious infrastructure and social protection plans. But this fund has a clause that freezes the money until the commission certifies that the recipient countries comply with the rule of law. The committee could attach a list of specific conditions to grants from Poland.
On November 15, Iustitia, an organization of independent Polish judges, presented a proposal to restore the rule of law, including the implementation of all CJEC decisions and give the floor to judges at the National Council of the Judiciary. Some EU countries will push for such conditions, notably the Netherlands, which insisted on the rule of law clause. But Germany is more reluctant. Meanwhile, Zbigniew Ziobro, the unrepentant Polish Minister of Justice, is trying to use the dissolution of the disciplinary chamber as an excuse for further changes, including a review of the credentials of every judge in the country. State television presents the conflict as “an offensive of CJEC against Poland ”.
The migrant crisis is just as thorny. The EU and America have persuaded almost all airlines and transit countries that Lukashenko used to bring in migrants to stop cooperating. The EU this week approved new sanctions against Belarusian individuals and businesses, and could block trade altogether to deter Lukashenko. This could limit the problem to the approximately 12,000 to 15,000 migrants already in Belarus, a fraction of the number who enter Italy through the Mediterranean each year.
EU and international law obliges countries to let people in to seek asylum, so refoulements from Poland are illegal; some migrants have already died from exposure. The Poles refused assistance from Frontex, the EUthe border agency, which can quickly assess asylum applications. Marcin Przydacz, Deputy Minister of Foreign Affairs, notes that few migrants seek asylum in Poland; they want to go to Germany. Western officials hope to push Belarus to let UN agencies and NGOs offer humanitarian aid to migrants there. Letting them cross each other could give more incentive to come and reward the propaganda strategy of Mr. Lukashenko and his godfather, Vladimir Poutine.
The commission can now postpone the rule of law action in Poland until the border calms down. Failure to show solidarity could turn the Poles against the EU and weaken their prime minister, Mateusz Morawiecki, a relatively moderate and rival of Mr. Ziobro. But a complete retreat of government control over the judiciary is only likely if PIS loses the next elections in 2023, believes Stanislaw Biernat, former judge at the constitutional court.
As for the migrants, they lose hope that someone will help them. As one of them put it: “The Poles will never have pity on us, any more than the Belarusians will have pity on us.” We are stuck between them. ■
This article appeared in the Europe section of the print edition under the title “Limit Case”