Of autocratic incrementalism and inadvertent inspirations: the interaction between the European Court of Justice and national lawmakers in the rule of law crisis in Poland

Abstract

AbstractThe European Court of Justice (ECJ) is often viewed as a revered champion of opposition to autocratic reforms in the Member States. In the context of the rule of law crisis in Poland, however, its resolute support for judicial independence contrasts notably with the limited improvements for judges on the ground. As the present investigation suggests, this discrepancy can be explained by a mode of incremental adjustments at national level that has allowed Polish lawmakers to repeatedly neutralise the effects of the Court’s interventions. Resulting from this strategy are several instances of mutually responsive interaction between the Court of Justice and autocratic national lawmakers that have shaped developments in the rule of law crisis, both at national and supranational level. At national level, lawmakers have incrementally adjusted reforms to comply – at least superficially – with supranational judicial interventions, whereas the Court refined its interpretation of supranational safeguards of judicial independence in response to incremental adjustments in Polish law. Yet, more recently, this interaction of inadvertent mutual inspiration may have come to a halt. Rather than changing national law to superficially respond to supranational judicial interventions, Polish authorities may increasingly deny the Court’s authority to adjudicate in matters of judicial independence in the Member States altogether.