University of New York 18.04.2019 –
Professor: Let’s move now to some of the difficult issues. We are celebrating 15th years of a Polish membership of the European Union. All the audience is invited later on to the reception , just opposite this room, and there are some posters of some very interesting and positive sights of that relationship. But I think today - if Europe wants to speak about Polish - European Union relationship - immediately what comes to mind - all the tensions over the rule of law et cetera. Let me give you some context. The EU Treaty has an article which is called an art. 7 which is there in order to call to task a Member State which allegedly breaches the core values of the EU: democracy, human right, the rule of law….
I teach the law of the European Union and every time I would get to this article I would say: “this would never be used. This is there just for symbolic reasons.” And then, a couple of years ago, the Commission of the European Union, and it’s not just one Member, it’s a college of Commissionaires, started the process alleging that Poland is violation of the core values of the European Union especially rule of law, independence of the Judiciary. And then there have been one, two, three cases where actually infringement proceedings against Poland were taken for violation of the principle of the rule of law. In a minute I would like to talk to you a little bit about the details. But what troubles me here is that it’s not a sporadic act: this art. 7 and infringement proceedings… There’s a huge majority in the European Parliament supporting or opting the art. 7 proceedings. They sometimes say if there’s a smoke there’s a fire. So before we go into details – do you think that's …. Well, in the recent case before the European Court of Justice one Member State took the side of Poland – Hungary. Do you have a feeling that they are gaining up upon Poland?
The Prime Minister of Poland Mateusz Morawiecki:
To explain, to explain this right, I have to highlight some origins of what we are dealing with. In 1989 there was a new system with the same old communist fellows, with the same old people. This is the Judiciary from communism times became the judiciary from in the new Poland. The same judges who have sentenced my brothers in arm – a Lady Ewa Kubasiewicz who thought with me for democracy and sentenced her for 10 years of imprisonment – the same judges were building independent and objective judiciary of the Third Republic of Poland during the nineties. This was always ridiculous for me. This was always unfair for me. I always wanted to change it. I always wanted to bring more justice, objectivity and independence. There were even more than one hundred judges coming from Stalin times still alive in the nineties and until today we have people who have been sentencing – we have judges and prosecutors from the darkest communism times – who have given death penalties to our heroes. This is for me unacceptable. This is why I always - throughout those thirty five years since until I’ve joined politics, I always wanted to have a deep reform of judiciary system. That’s the one point. Another point is that judiciary is selected…. Is this a right situation if the judiciary is selecting judiciary? Judiciary is judging the quality of judiciary? What would you say if American society say if, all of the sudden, the President or the President of Congress would have zero say on the judiciary and if it was only judiciary selecting judiciary, judges and so on? I think there would be a protest in your great country. And this has happened in Poland. The system was self-replicating. And judges and judiciary felt completely beyond any control. So democracy is about checks and control, checks and balances. All three different branches of the broadly defined government: executive, legislative and judiciary they have to control each other. While in our situation the post-communist judiciary was not controlled by anybody and the quality of this judiciary – and now I come to the third part of my explanation – was appallingly law. There was a lot of corruption. I could spend fifteen minutes of quoting different specific cases at the very top of our judiciary, like the Supreme Court judge talking to another Supreme Court judge from another court – and they were tape recorded, unfortunately for them – and they were agreeing on a specific case in a completely illegal way; and nothing happened to them because they were judged by another Disciplinary Chamber of the same Supreme Court. Or a very high judge, like the Head of the District Court, was tape recorded by a phone on journalist call, he was asked by Prime Minister, not me – my predecessor from another party - to distribute a case to a particular judge with which he agreed and nothing happened to him. So this third area is the quality of the judiciary. So this is why in 2015 with the change of the government – and you need to know that it was actually almost the first time when there was such a deep change of the government for over the last thirty years or thirty five years. There were changes before but not as deep as this one: this was a solidarity second revolution, second democratic revolution in Poland in 2015. This is at least the whole I view the situation. And how come Western European Commissionaires coming from completely different angle – how could they understand what was going on in Poland? So I was trying to explain to them what I’m explaining to you in a shorter version, we’ve prepared a White Book, we’ve prepared a lot of other explanatory documents but then the whole situation entered into a face of a pre-campaign. Because now we are approaching to European Parliament elections. And even if there are not two countries, there are fourteen, fifteen countries which are on our site, out of 28, but they are predominantly from Central Europe – because post-communist countries have similar patria and they understand each other quite well, while Western European countries do not understand as. If you allow me… just thirty seconds – exactly the same procedures which we have implemented for the very important body within the judiciary system, called National Judiciary Council, exactly the same, we’ve copied the, are in Spain. But ours are bad and the Spanish are good and they are exactly the same. The system of selecting judges in Germany is very much politicized. Politicians are selecting judges. While in our case 2/3 of the National Judiciary Council are still judges. So we are much less politicized but our system has been rejected by Brussels and their system is good. Like for me, it’s unacceptable. This is why we are fighting for the reform.
Professor: I am not entirely persuaded.
Mateusz Morawiecki: At least to some extent, I hope.
Professor: But let me challenge to push back a little bit. I totally accept that there should be some political control of the approval of judges. Take the United States, appointment of judges to the Supreme Court is a very political process. But the big principle - and that is the point of criticism for example in ongoing case now which is taking place before the European Court of Justice - is that once they are appointed the removal of judges which is a problem and political control.
Mateusz Morawiecki: Who removes the judges and in what country?
Professor: Let me describe and I’ll ask your reaction to the case before the Court, one of the cases before the Court… So your government, the government of Poland, announced a reduction of a retirement age from 70 to 65 which meant that 27 judges according to the documents before the court would suddenly be retired. That’s problematic.
Mateusz Morawiecki: …. which is exactly what we’ve done in 1998 and nobody has opposed to this.
Professor: That’s very bad. But it doesn’t mean that if it happened in 1998 that it’s ok to happen in 2015 or 2017. And the case goes on to say that these judges who will now instead of having to retire at 70 were cut off at the age of 65 the President of the Republic, who is a political figure, can decide whether or not they can extend the mandate or not extend the mandate which – I think – most people interested in the rule of law and the principles of the independence of the judiciary would say that both of these aspects are problematic from the point of view of the independence of the judiciary. And Poland went before the Court , the Court issued the interim order and I think we should be glad that Poland followed the interim order. But apparently not the Advocat General and I suspect that the Court will… We will see what will happen. We will find that both of these elements: the termination through the reduction of the retirement age and the political control of the President in terms of separation of powers, in terms of independence of judiciary that he can decide who will continue and who will not, constitute a serious challenge to understanding of the rule of law and independence of the judiciary.
Mateusz Morawiecki: the last point which you mentioned is no longer the case because we introduced some amendments to the law of the Supreme Court. But I can give you two examples of actually where we have enormously strengthened the independence of the judiciary. First we have introduced the rule that all the cases have to be randomly allocated across the court, court judges, any court judges: Supreme Court, District Court, Regional Court… And the second was a ban of moving judges between different chambers which was indirect tool through which a President of a court was exerting pressure on the judges. So those two changes were widely acknowledged as very, very positive.
Professor: And they are positive. But if we go back to the case that is now before the court, I really think that if we gave this text to a classroom here teaching the rule of law the students would say that it is an egregious violation of the independence of judiciary.
Mateusz Morawiecki: Like what specifically? Because what you said about the President who can or cannot do something this very provision was changed in accordance with the interim proposal by the European Court of Justice.
Professor: And that’s very positive. But do you accept – because Poland is still defending the case – do you accept that that provision about the President was unwelcomed?
Mateusz Morawiecki: We defend specifically the right which is explicitly written in our Constitution that we can change, we can reform the judiciary system and hanging the age from 70 to 65 which happened in other countries of the EU is absolutely in line with the law of the land. This is what we defend.
Professor: Well… It might be that the law of the land is not in conformity with the principles of the independence of the judiciary. In most countries if there is a change of the retirement age it would be prospective. It would say: let the judges finish their term, you don’t cut them off and the new judiciary, anybody who is appointed about certain age…
Mateusz Morawiecki: And this is what we have restored. We have restored this prospective change. Well like this is now the state of the law.
Professor: Well… As a result of this action: the infringement procedure of the European Commission.
Mateusz Morawiecki: Yes.
Professor: And there is another case which was started just ten or twenty days ago about this new body of the Supreme Court: The Disciplinary Chamber and the concern that the Commission expressed - it was a double concern - but the main concern was that disciplinary investigation and procedures could be taken against judges even in relation to preliminary references to the European Court of Justice. That is very troubling. Now it’s just that the infringement procedure has begun but if that is true it’s also very problematic issue for the European Union.
Mateusz Morawiecki: In particular the lack of disciplinary proceedings and a complete free, and the fact that the judges were never appropriately treated in the case of breaching the law before has created the situation that 80 to 85 % of population stands behind us. They want to have a deep change in the judiciary system. Lots of this system was corrupt so we cannot discuss one element after another and do not allow for a radical change. For me it is a situation comparable to the French one in the post-Vichy France. The Prime Minister Michel Debre in 1958 and Charles De Gaulle have completely revoked the system.
Professor: And that was the right time to do it. But now we are thirty years after the change and these judges were sailing under the successive democratic judiciary…
Mateusz Morawiecki: Sorry! Sorry! He has done this 15 years after the II war, after the Vichy regime collapsed. We have started to do this 25. I’d wished we have started to do this 5 years or 5 minutes after the transformation begun but post-communism judges, plus-post communism capitalists, plus post-communism politicians they have captured the land. There was a captive land from some extend….
Processor: That’s very troubling prime minister…
(applause of the audience)
Professor: Thank you. You were applauding me, weren’t you?
It/s very troubling. Disciplinary Chambers are existing in many countries. But here the fear is that they would be applied not to a corrupt judge but actually to decisions taken by judges. And what is of particular concern to the European Union is that there would be this threat of the disciplinary proceedings for judges making a preliminary references to the European Court of Justice which is the foundation of the protection of rights of individuals of the European Union. Would you agree that that would be a problem if this disciplinary chamber apply to decisions to make preliminary references to the European Court of Justice?
Mateusz Morawiecki: It’s more complicated. Of course, all the courts have this right for preliminary rulings of the European Court of Justice and many courts in Poland take advantage from this and they do this. Sometimes there is an increasing abuse by some of the judges in the questions which they are posing in front of the European court of Justice and this is a subject of discussion if this may or may not be a subject to disciplinary proceedings. But with the strength of the judiciary in Poland I’d wish there were more disciplinary proceedings for more important matters than this one which you are asking, you are drilling. Because there are lots of evidence that such disciplinary proceedings should be triggered and they are not.
Professor: The normal way is that if a judge takes a decision which is legally wrong, there can be an appeal to a higher court to question it. I remember a case in France…
Mateusz Morawiecki: What about bribes?
Professor: Bribes – disciplinary proceedings. But preliminary reference to the European Court of Justice is not bribes. It’s a fundamental right and a fundamental principle of all the European citizens. I remember a case in France, years ago. A lower administrative court made a preliminary reference to the European Court of Justice and the Conseil d’Etat said this is inappropriate way to make a preliminary reference. It’s not a disciplinary procedure, it’s simply a legal mistake. It’s the fact that it’s a disciplinary procedure which people find so offensive to the principle of the independence of the judiciary. Because, really, if I had to say what is the most important legal provision in the entire system of the European law it’s the preliminary reference procedure. And if the Polish judge is afraid to make a preliminary reference because there is a threat of the disciplinary procedure, you are really striking at the foundation of the constitutional order of the Union.
Mateusz Morawiecki: This is not the core of the reform. You are drilling into one detail of this and I can guarantee you that Polish judges are not at all afraid of asking anybody any questions they want. There was a completely different state in our judiciary system. They were beyond any rich of other controls and checks and so on.
Professor: I’m glad to hear that. But I would be more comfortable if in this reform it was made clear that preliminary reference itself cannot be subject to the disciplinary procedure. And I fear, just as I fear or I predict that Poland will lose the first case now before the Court, I fear that this infringement procedure might also result in Poland being condemned by the European Court of Justice. Who needs that?
Mateusz Morawiecki: There are two cases in front of the European Court of Justice. The one where we have actually eliminated all of the infringements in their eyes. Because we don’t think that they were infringements but in the spirit of good relationships with the European Union we have done this. This one should have been closed because there is no matter for decision. But the European Court of Justice for whatever reason decided to deal with this even if the actual initial provisions which were the reason for them to start this case were changed.
Professor: It often does that. Ok it sometimes does that.
And the other one which is now the bow of contention and is most important is the one of our National Judiciary Council. If you look into our Constitution what we have done in terms of changes with regards to the National Judiciary Council we believe that they are completely in line with our Constitution. Whereas there is a case before the European Court of Justice which is again attacking our right to reform the judiciary system. They have found many different places in our reform in order to not to allow us to make the changes which we disagree with.
Professor: Dear Prime Minister, I think that we should move on a little bit. The fact that it is in accordance with the Constitution of the State, in all Member States, it’s not a justification for the violation of the principles of the European Constitutional Law. Many states have pleaded: “but this is in accordance with our Constitution” but it have been a violation in fact.
Mateusz Morawiecki: But let’s explain the audience, because you don’t know or most of you know this… The matters of judiciary system are not the competence of the European Union. There are exclusive competences, there are mixed competences of the European Union and there are matters which are exclusively in the competence of Member States of the European Union. And reforming judiciary system is an exclusive competency of a Member State. So all what the European Commission is doing they are building very artificial and abstractive construct to attack us in the area of reforming the judiciary system.
Professor: But the court has held and I think that it’s widely accepted that the guarantee of a fair judicial trial for an individual in matters which potent to European Law is within the competences of the European Union. It’s been decided in cases not only in relation to Poland. So my feeling is that it’s a pity, it’s simply a pity, that these measures which run contrary to the common understanding of the rule of law and of the independence of the judiciary will be taken by Poland and “mourning” its relationship with the EU.
Mateusz Morawiecki: It’s a pity definitely that we were not able to explain the root causes and the reasons why we need such relatively deep, not the deepest in history, renewal of the whole judiciary system. But I’ve spent lot of time explaining this, to different commissionaires, to the President of the Commission and actually most of my interlocutors have been in agreement with what I was explaining to them. There was one particular individual who was actually treating this as a spin board for his political campaign. And what is happening today confirms what I am saying. And this is also what we cannot abstain from individuals and their aspirations, ambitions and this is what has happened.
Professor: It’s possible but it’s also… I mean, these decisions to take these infringement procedures were taken by the College of Commission, not by the individual commissionaire. I would hope that there would be some second thinking in Poland: root out corruption but respect the fundamental principles of the independence of the judiciary which are the common extracts of the rule of law…
Mateusz Morawiecki: So you would want that we change our reform which is widely needed and supported by 80-85% of the population because of some Eurocrats….
(applause of the audience)
Professor: not because of some eurocrats, because of common principles of rule of law and independence of the judiciary. I wouldn’t call the European Court of Justice some eurocrats…
(applause of the audience)
Mateusz Morawiecki: I’ll go back to the beginning of our conversation. The institutions in Brusells… Who completely controls them, Joseph? Who completely controls them?
Professor: You tell me!
Mateusz Morawiecki: People from Western European capitals. People who have started the European Union, from those countries, they do not understand the intricacies of the situation East of the River Oder. They do not understand the need for changes. And this is why they today are against the reforms in Romania, in Hungary as well. And this is .. well, they have a different perspective. So we were trying to explain lots of this what we now discuss. But they have completely – I’ll be brutal, even more – we are in new government since 2015. And the reason why we are new, and even if 80-90% of media are against us, 80-90% of business are against us, 80-90% of all the big international political powers are against us, we have maintained the level of popularity which is very decent and we still have huge, good prospects to win the next elections. Why is that? Because we were actually dealing in favor of the widest possible groups of society. Solidarity was not an empty word but we were trying to reshape of our taxation system, our institutions, our judiciary system and many other sections of the state in favor of an ordinary man. And we won lots of those battles. And one of those groups which were put in an outscore position were also multinationals from Western Europe who have done a decent job in some areas but in many others – not so good, I mean for instance they were escaping to tax heavens and not paying taxes, having benefits, revenues and income in Poland, Czech Republik, Lituania and so on… Latvia, but paying taxes nowhere. And we have changed this. So they did not like it. And they have lots of friends in…
Professor: I wish you truly a success. Truly so. You know it, I am a friend of the Polish people. The reforms should take place. But at the same time respecting of fundamental principles which are the common asset of Europe.
Mateusz Morawiecki: We are respecting those. We are respecting those.
Professor: I hope so. I hope so…