Eirik Holmøyvik
For Norway it's Official: The Rule of Law is No More in Poland
The so-called "muzzle law", adopted by the Polish parliament on January 23, was the last straw. On Thursday 27 February, the board of the Norwegian Court Administration (NCA) decided to withdraw from its planned cooperation with Poland under the justice programme of the EEA and Norway Grants, due to concerns over the Polish justice reforms.
The EEA and Norway Grants are basically Norway's membership fee for access to the EU inner market under the EEA Agreement. These funds of 2.8 billion euros per five-year programme period are distributed among 15 EU member states in the form of grants in specific fields, among them the justice field. Poland is the biggest recipient, with 809 million euros allocated to different purposes such as energy, business development, research, and justice. The justice programme of around 70 million euros consists of a Norwegian-Polish cooperation on correctional services, combating domestic violence, and judicial cooperation. The main Norwegian partner is the NCA, which has now decided to pull out, leaving a gaping judicial hole in the EEA and Norway Grants.
The message: The rule of law is no more in Poland
While the 70-million-euro cooperation programme is hardly significant for the Polish authorities, the collapse of the justice programme is noteworthy due to its justification and its public approval by the Norwegian government.
In a statement published on the NCA website, the director of the NCA stated that the bilateral cooperation could not continue since "basic European standards for legal security are no longer present" in Poland. The director referred to criticism of the Polish justice reforms by the Venice Commission, the OSCE and the EU Commission, and concluded that the political control of Polish courts is now so extensive that the NCA and the Norwegian courts could no longer continue their cooperation with Poland within the EEA and Norway Grants justice programme. Crucially, the director voiced concern that Norway's cooperation with Poland in the justice field might be considered as an acceptance of the recent justice reforms in Poland.
Indeed, the NCA statement and the justification for ending judicial cooperation with Poland should be considered the official position of the Norwegian government. In a statement by the government issued the same day, the government called the NCA decision "a clear signal to the Polish authorities that the Norwegian Government is concerned about developments regarding the rule of law and the independence of the judiciary in Poland".
Strip away the diplomatic language, and the message is clear: The recent justice reforms has undermined judicial independence and destroyed the rule of law in Poland. From now on, the Norwegian government and judiciary will not be associated with the Polish judiciary through bilateral cooperation.
Why is the Norwegian response significant?
The NCA's decision to end judicial cooperation with Poland is significant because it means that a European government is now officially distancing itself from the Polish judicial system. For now, Norway will continue its cooperation with Poland in other sectors under Norway and EEA Grants. Yet the government statement left the door open for rule of law developments in Poland to affect the remainder of the 809 million euro grant scheme.
This is not the first time Norway used the EEA and Norway Grants for rule of law purposes. In 2014, Norway suspended the payments to Hungary after the Hungarian government attempted to block Norway's allocation of funds to human rights NGOs.
The position taken by the Norwegian government should serve as an example to follow for other states. The lethargic reaction of EU institutions has proved to be wholly inadequate to meet what should be considered an existential threat to the EU: The Polish government's successful attempts to politically control the judiciary and prosecution service means that Poland is now in persistent breach of the EU treaties. The newly adopted "muzzle law" is one big middle finger aimed at the CJEU and its grand chamber judgement of 19 November last year (Joined Cases C‑585/18, C‑624/18 and C‑625/18). While the CJEU has handed down some important judgements recently, their short-term impact appears to be limited. The EU legal tool box is lacking in face of a large member state that is simply ignoring CJEU judgements.
Nor is there much hope in the Council of Europe legal tool box. The European Court of Human Rights is too slow to deal with such fast paced developments, and while the Venice Commission acts rapidly and can assess the systemic effects of legal reforms, its opinions are only advisory. Besides, the Polish government has boycotted the Venice Commission since that body criticised the reform of the Polish Constitutional Tribunal in 2016.
The stage is set for unilateral action
Until the EU's political institutions wake up from their slumber, the European stage is set for the nation states to take unilateral political action against Poland. In this context, the Norwegian government's decision is a small but symbolic step.
Not being an EU-member may give Norway more political room for manoeuvre compared to the EU member states. Yet it is high time for EU member states, their governments, parliaments, and courts, to publicly acknowledge that "basic European standards for legal security are no longer present" in Poland, to quote again the Norwegian Court Administration. Today the rule of law may be losing in Poland. Tomorrow it may be democracy. Keep in mind that the new and much-criticised Extraordinary Control and Public Affairs Chamber of the Polish Supreme Court, its judges appointed by the politicised National Council of the Judiciary and its lay judges appointed by the Parliament, decides on the validity of Polish elections. There is no such thing as democracy without the rule of law.
SUGGESTED CITATION Holmøyvik, Eirik: For Norway it's Official: The Rule of Law is No More in Poland, VerfBlog, 2020/2/29, https://verfassungsblog.de/for-norway-its-official-the-rule-of-law-is-no-more-in-poland/, DOI: 10.17176/20200229-214621-0.
Piotr Mo 2 Mrz 2020 at 10:45 - Reply
So basically a foreign country thinks they have the superior right to judge and rate our judiciary system and you guys are stating it as a matter of fact, as if a foreign country couldn't possibly get it wrong. Talk about being blinded by the leftist agenda. Last time I checked the democracy meant that if people elected a group of politicians, then said group of politicians has the right to carry out the changes they seem necessary and they will be judged not by foreign countries, but BY THE PEOPLE OF OUR NATION. You get what I am saying, I hope. But if not, I will reiterate:
This is an attack on Poland's sovereignty. We have the right to adjust our government in the next general election. You can respond to our government's actions but the attitude is "blah blah blah, Poland's system is no longer lawful" which is a blatant lie and an exaggeration for dramatic purposes. I won't stand for that.
Adam Mo 2 Mrz 2020 at 11:57 - Reply
Have the Poles "the superior right to judge" the Norwegians for their decision? According to what you said, they have not: well, the decision has been taken by a democratically elected government…
As Hard as you try to make propaganda for the ruling party, you want be able to convince anyone here. Too much evidence that your government ruined the rule of law in Poland. The members of the ruling party are already above the law.
Law as Integrity Mo 2 Mrz 2020 at 17:59 - Reply
"Last time I checked the democracy meant that if people elected a group of politicians, then said group of politicians has the right to carry out the changes they seem necessary and they will be judged not by foreign countries, but BY THE PEOPLE OF OUR NATION."
So, please check again. The last time I looked at it, democracy was defined as the will of the people (and majority rule of elected representatives) WITHIN THE LIMITS OF THE CONSTITUTION…
"janusz" Mo 2 Mrz 2020 at 14:10 - Reply
What is really sad about daily life in Poland is just amount of propaganda and politics one is forced to digest daily.
Sure it is same in other nation-state infected areas of the planet, and probably illness wchich took empires as big as Roman empire down (mind the Diogenes of Sinope ) .
But it would be arguing if hunger feels worse in Africa or Alaska. Problem remain the same.
One could say that if majority of the nation feels like suicidal, they have the right to destroy entire country. or planet. Poland has already highest suicide rate.
Question is – what should the minority wchich does not share sentiments of majority do?
It is really difficult to live under constant ostracism, lies, propaganda, political war…
Marina F-K Di 3 Mrz 2020 at 04:30 - Reply
It is the same story in Austria, Germany. Eight billion Euro confiscated from the citizens per year to finance their Agitprop.
Zibi Di 3 Mrz 2020 at 12:41 - Reply
@Piotr
Yes foreign powers have right to decide where their tax funds should be invested for international programs. Norway's decision is not a left or right agenda but rather recognition that Poland has been diverging from democratic principles. Last time I have checked democratically elected government should still respect the constitution. In addition, UE and EEA is a community of democratic countries and have expectations how their partners follow common rules. BTW, European history knows examples of democratically elected governments that turn their countries into dictatorships with tragic results for all. What an irony that a ruling party name in Poland is "Law and Justice" and they violate the constitution and foster political corruption creating new "Nomenklatura" – the privileged ones. Sad story – after 30 years after Poland lead the breakout from the communist regime the current government drives it back to an autocratic state.
Christian Schmidt Do 5 Mrz 2020 at 14:31 - Reply
@Piotr – It's up to Norway to decide how they spend their money, you have no right to it, nor have to any right to Norway not saying what they think about Poland. Sure, Poland could equally withdraw from any cooperation with Norway if they wish for, but whinging at the democratically elected government for doing what they think they have been elected for is just pathetic
EEA, Rule of Law, judicial independence
Europa, Norwegen, Polen
Eirik Holmøyvik is a Professor of International, Constitutional and Human Rights Law at the Faculty of Law of the University of Bergen.