EU takes unprecedented step against Poland over rule of law

Jean-Claude Juncker has put the Polish issue on the College agenda. [European Commission]

The European Commission announced on Sunday (3 January) that it would discuss the state of the rule of law in Poland after the country’s hard-right government pushed through changes to the judiciary and media over the Christmas break.

The unprecedented move by the European Commission is the first step in a potentially-punitive process aimed at buttressing democracy and rights in the 28 EU states.

Commission President Jean-Claude Juncker “has placed a first debate on the rule of law in Poland on the agenda of the Commission’s meeting on 13 January”, the executive said.

The move comes on the heels of legal moves giving Poland’s conservative government the power to directly appoint the heads of public broadcasters and a controversial law reforming the country’s constitutional court.

>>Read: EU executive voices concern over planned Polish media law

>>Read: EU warns Poland to protect ‘rule of law’ over judicial crisis

The changes have triggered an outcry from civil rights watchdogs and prompted escalating warnings from the European Commission that it could intervene, including two letters from its First-Vice President, Frans Timmermans, asking Warsaw for information.

Earlier Sunday, Germany’s Frankfurter Allgemeine Zeitung (FAZ) quoted Commissioner Günther Oettinger as saying “many reasons exist…  to activate the ‘Rule of Law mechanism’ and for us to place Warsaw under monitoring”.

The mechanism was set up in March 2014 to tackle “systemic threats” to the rule of law and other cherished European values.

>>Read: Brussels lays out plans to counter ‘systemic threats’ to EU rule of law

The upcoming Commission debate constitutes the first stage of a three-step procedure.

During the initial phase, the executive will collect information and assess whether there are clear indications of a systemic threat to the rule of law.

If the threat is confirmed, it will initiate dialogue with the state which will be given a chance to respond.

Ultimately, if there is no satisfactory response, the European Commission can propose invoking Article 7 of the Treaty of the European Union.

Under this, a member can be stripped of its voting rights in EU institutions if it is guilty of serious and persistent breaches of the rule of law.

However, the punishment has never been meted out – and it also has to be approved by a so-called qualified majority of states under the EU’s system of weighted voting.

The Commission said it was “too early to speculate about the possible next stages” in the procedure.

 “We are engaged in intensive dialogue with our Polish partners,” the statement said.

Storm over media law

The media bill was approved on Wednesday (30 December), just two days after it was submitted to parliament, which since October’s elections has been dominated by the Law and Justice (PiS) party of Jaros?aw Kaczy?ski.

To take effect, the new law must be passed by the PiS-controlled Senate and signed by President Andrzej Duda.

It would mean that senior figures in public radio and television will be appointed – and sacked – by the treasury minister, and no longer through contests by the National Broadcasting Council (KRRiT).

The law would also see the current managers and supervisory board members of Poland’s public broadcasters fired with immediate effect.

In an interview with the German tabloid Bild, Polish Foreign Minister Witold Waszczykowski said the law sought “simply to cure” Poland after 25 years of “liberal indoctrination”.

EU ‘not a legitimate partner’

Waszczykowski told Bild he was surprised to have received a letter Timmermans.

“An EU official, who came to office via political connections, writes to a democratically-elected government … Mr Timmermans is not a legitimate partner for me,” he told the newspaper.

Marek Magierowski, head of the Polish presidency’s press office, told the commercial news channel TVN24 that during the previous eight years of liberal government, “we didn’t get a penny’s worth of pluralism in the media, and not a single Euro-MP uttered a word of regret about it.”

But Reporters Without Borders (RSF), the European Broadcasting Union (EBU) and the Association of European Journalists (AEJ) are among those monitors who have voiced deep concern.

The law would “effectively bring public service television and radio under the direct control of the government, involve the dismissal of respected journalists for political reasons, and lead to a systematic editorial bias in the content of… broadcasts in favour of the present government,” the AEJ said.

Rights groups have also cried foul over what they see as an attempt to neuter the country’s constitutional court.

The court now needs a two-thirds majority to issue a ruling, rather than by a simple majority as before, and 13 of its 15 judges must be present for the most contentious cases, up from nine.

Since 2009 when the Lisbon Treaty entered into force, the European Commission has been confronted on several occasions with crisis events in some member states, which revealed specific rule of law problems.

Such examples is the handling of the Roma issue by the former French President Nicolas Sarkozy, attempts to impose one-party rule in Hungary and an attempted crackdown on the judiciary in Romania.

Under Article 7 of the Lisbon Treaty, serious breaches to the values of human dignity, freedom, democracy, equality, the rule of law and respect for human rights by a member state can result in a suspension or loss of voting rights in the EU Council of Ministers.

If article 7 is activated, this would mean that the country in breach would temporarily lose its EU membership rights. But before such a decision can be taken, the Council shall hear the member state in question and may address recommendations.

But as the Article 7 is described as a ‘nuclear bomb’ which may never been used, the previous EU Commission under José Manuel Barroso introduced a "pre-Article 7 procedure", which follows three stages. Those are:

  • Commission assessment: As a first step, the Commission collects and examines all the relevant information and assesses whether there are clear indications of a systemic threat to the rule of law. If the Commission makes such assessment, it will initiate a dialogue with the country concerned, by sending its "rule of law opinion". The country concerned then has the possibility to respond.
  • Commission Recommendation: In a second stage, unless the matter has already been resolved, the Commission issues a "rule of law recommendation" to the country concerned. It recommends that the member state solves the problems identified within a fixed time limit and informs the Commission of the steps taken to that effect. The Commission then makes its recommendation public.
  • Follow-up to the Commission Recommendation: In a third stage, the Commission monitors the follow-up given by the member state to the recommendation. If there is no satisfactory follow-up within the time limit set, the Commission can resort to one of the mechanisms set out in Article 7 of the EU treaty.

Before the Lisbon Treaty entered into force, the EU has imposed sanctions only once against a member state. In 2000, 14 countries of the then 15-member EU reacted to the entrance of Jörg Haider's far-right Austrian Freedom Party into the Austrian government by freezing bilateral relations with the country.

Subscribe to our newsletters