The Economist November 20th 2021 Europe 39office in 2015, Poland’s ruling Law and Jus
tice (pis) party has passed laws that give the
government power over the courts. The
European Court of Justice (ecj) has ruled
that these laws violate eurules about judi
cial independence and must be rolled
back. After years of dithering, the commis
sion has begun to enforce those judg
ments. Now it must balance supporting
Poland on border security with keeping up
the pressure on judicial matters.
Poland’s takeover of its judiciary is
modelled on that of Hungary, Europe’s pio
neer of illiberal democracy. pischanged
the rules governing its National Judicial
Council, which picks judges, so that its
members are named by parliament and the
minister of justice, with no input from
judges themselves. The ecjhas ruled that
since the council is no longer indepen
dent, judges appointed under the new
rules are not judges under eulaw.
Many of them are poorly qualified pis
loyalists. pishas packed the constitutional
court and set up a disciplinary chamber of
the supreme court that can punish judges
for rulings it dislikes. The ecjordered Po
land to disband the disciplinary chamber.
The government says it will, but has yet to
present a plan to that end.
This ruleoflaw conflict threatens the
very structure of the eu. In October, trying
to wriggle out of the ecj’sjudgments, Po
land’s constitutional court ruled that the
articles of the union’s founding treaty deal
ing with judicial independence violate the
Polish constitution. That challenged the
principle that European law supersedes
national law, without which the union
would have little power. “We would be like
the un,” says an euofficial.
The commission has some new tools of
persuasion. Until it scraps the disciplinary
chamber, Poland is accruing fines of €1m
($1.1m) a day. pisis counting on €36bn from
the eu’s new covid19 recovery fund to
bankroll its ambitious infrastructure and
socialwelfare plans. But that fund has a
clause that blocks the money until the
commission certifies that recipient coun
tries comply with the rule of law. The com
mission could attach a list of specific con
ditions to Poland’s grants.
On November 15th Iustitia, an organisa
tion of independent Polish judges, put out
a proposal to restore the rule of law, includ
ing implementing all the ecjrulings and
giving judges back their voice on the Na
tional Council of the Judiciary. Some eu
countries will press for such conditions,
notably the Netherlands, which insisted
on the ruleoflaw clause. But Germany is
more reluctant. Meanwhile Zbigniew Zio
bro, Poland’s unrepentant justice minister,
is trying to use the disbanding of the disci
plinary chamber as an excuse for more
changes, including a review of the creden
tials of every judge in the country. State
runtelevisionportraystheconflictas“an
offensive of the ecjagainst Poland”.
The migrant crisis is just as thorny. The
euand America have persuaded nearly all
the airlines and transit countries that Mr
Lukashenko used to bring in migrants to
stop cooperating. The euapproved new
sanctions this week on Belarusian individ
uals and firms, and could block trade en
tirely to deter Mr Lukashenko. That could
limit the problem to the estimated 12,000
15,000 migrants already in Belarus—a frac
tion of the number who enter Italy across
the Mediterranean each year.
euand international law obliges coun
tries to let people in to request asylum, so
Poland’s pushbacks are illegal; some mi
grants have already died of exposure. The
Poles have refused help from Frontex, the
eu’s border agency, which can evaluate
asylum claims fast. Marcin Przydacz, a
deputy foreign minister, notes that few mi
grants apply for asylum in Poland; they
want to get to Germany. Western officials
hope to press Belarus to let unagencies
and ngos offer humanitarian aid to the mi
grants there. Letting them cross might en
courage more to come and reward the pro
paganda strategy of Mr Lukashenko and
his sponsor, Vladimir Putin.
The commission may now postpone ac
tion on the rule of law in Poland until the
border calms down. Failing to show sol
idarity could turn Poles against the euand
weaken their prime minister, Mateusz Mo
rawiecki, a relative moderate and rival of
Mr Ziobro. But a complete rollback of the
government’s control over the judiciary is
likely only if pisloses the next election in
2023, says Stanislaw Biernat, a former
judge on the constitutional court.
As for the migrants, they are losing
hope that anyone will help them. As one
put it, “The Poles will never havemercy on
us, nor will the Belarusians havemercy on
us. We are stuck between them.” nLukashenko’s promise meets realityNuclearweaponsinGermanyAtomic jitters
G
ermany’s coalitiontalks have done
little to dispel its reputation for politi
cal dullness. After winning a majority in
September’s election, the Social Democrats
(spd), Free Democrats and Greens aim to
wrap up negotiations next week on their
“trafficlight” coalition (named after the
parties’ colours) before taking office in ear
ly December. Bar the odd wobble the talks
seem to have been largely straightforward.
But Germany’s closest allies have been
watching one issue with mounting alarm.
The “p3”—America, Britain and France,
the three nucleararmed natoallies that
hold permanent seats on the un Security
Council—have two related concerns. First,
that Germany may go soft on its involve
ment in nato’s “nuclear sharing” arrange
ments, under which America stations up
to 20 atomic bombs at Büchel Air Base in
western Germany, while Germany main
tains a fleet of dualcapable aircraft (dcas),
from which they can be launched. Second,
that the incoming government may flirt
with the Treaty on the Prohibition of Nuc
lear Weapons (tpnw), an international dis
armament effort.
The first issue is familiar. Nuclear shar
ing, also practised by Italy, Belgium, the
Netherlands and Turkey, gives countries
without their own nuclear weapons an im
portant stake in nato’s nuclear planning.
But Germans have long been uneasy about
the presence of American nukes on their
soil; in the early 1980s over 1m marched
against the deployment of Pershing II mis
siles. Successive governments have vowed
to seek the removal of nuclear bombs, only
to yield to pressure from allies.
Yet several new elements are at play, in
cluding the fissures in the international
armscontrol regime, Russia’s growing un
predictability and the ascent to govern
ment of the Greens, who retain a strong
pacifist streak. The most urgent issue is a
pending decision on replacing Germany’s
decrepit Tornado dcas. These planes’ life
span can be spun out to 2030 at the latest.
To ensure operational continuity beyond
that date, decisions for a replacement must
be made by 2023, says Christian Mölling at
the German Council on Foreign Relations.
The tpnwis a newer concern. Driven by
nonnuclear countries and pressure
groups, and in force since January, the trea
ty obliges ratifying countries (56 so far) to
renounce the development, production
and ownership of nuclear weapons. SupB ERLIN
Allies fear that Germany’s incoming
government may go soft on nukes