Ewa Łętowska

Leveling Down – Threats for the Rule of Law: Is Poland Herostratus or a Catalyst?

Member States (while transposing and implementing the EU law), as well as participants of the market (while concluding and performing contracts), take part in the race to the bottom. They choose the most comfortable solutions that offer them the highest profits, the greatest freedom, and the fewest limitations. EU law should prevent this unavoidable pathologization, the race to the bottom, imposed by the stronger or smarter participants of the market. 

Considering how common the race to the bottom is, the principle of effectiveness of EU law inspired an increased involvement of the Court of Justice of the European Union (CJEU) in the discussion on the independence of the national judiciary. It deals with the protection of judges’ independence against influence, pressure, as well as political decisionism, in order to prevent the existing standard of the rule of law from deteriorating. Recently, Polish courts formulated more than twenty preliminary referrals for the CJEU, and the EU Commission subsequently initiated two cases against Poland. All of these cases deal with situations in the Polish judiciary. The Polish cases became a catalyst of change, and, as a result, the case law of the CJEU is undergoing a „qualitative change”. The potential of Article 19 Section 1 of the Consolidated version of the Treaty on European Union has been noticed. On this basis and in cooperation with the national courts, a renewed standard of an independent European court is being constructed. This standard would further bind national courts with the EU system. The standard relates not only to the application of EU law by national courts, but it also deals with the institutional structure of the national courts.