Commission launches unprecedented probe into Polish judicial reforms

Frans Timmermans [European Commission]

The European Commission launched an unprecedented probe today (13 January) into judicial changes introduced by Poland’s new right-wing government to see if they violate EU democratic rules and merit punitive measures.

The move comes amid growing concern over changes to Poland’s constitutional court and increased control over state media introduced by the conservative, Eurosceptic Law and Justice party (PiS), which swept to power in October.

“Today we have decided that the Commission will carry out a preliminary assessment on this matter under the rule of law framework,” Commission First Vice-President Frans Timmermans said after the EU’s executive arm held a special debate on the issue.

Timmermans said that “binding rulings” by Poland’s constitutional court were not being respected by the new Eurosceptic government, “which I believe is a serious matter in any rule of law dominated state”.

The European Commission called the debate amid growing concern over changes to the constitutional court and increased government control over state media introduced by the Law and Justice party (PiS), led by Jaros?aw Kaczy?ski.

>>Read: EU takes unprecedented step against Poland over rule of law

If found at fault, a country can be stripped of its EU voting rights – the so-called “nuclear option” – but the procedure has not been used before, and officials say they hope it does not come to that.

Commission softer on media law

Timmermans referred only to the probe looking at the constitutional court, not the press reforms, in his comments.

Polish President Andrzej Duda signed into law a bill last week, handing the conservative government the power to appoint and sack senior figures in public radio.

>>Read: Polish President signs controversial media law

Separately, in a letter to the Polish justice minister, Timmermans urged Poland’s government to implement the rulings of its Constitutional Tribunal and review freedom of speech issues raised by the new media law.

“The binding and final judgements of the Constitutional Tribunal have not been implemented,” Timmermans said in the letter, seen by Reuters. “I would like to stress that compliance with final judgements is an essential requirement inherent in the rule of law.”

He added that measures taken to increase control of the state broadcaster by the new, nationalist-led government in Warsaw also raised “issues relating to freedom and pluralism in the media”.

The Dutchman told the Brussels press that he supported the EU’s Rule of Law mechanism adopted in 2014, which gives the 28-nation bloc the right to investigate and if necessary punish any member state which violates key EU democratic and rights norms.

“The rule of law preserved throughout the EU is a key part of the Commission’s responsibilities… the rule of law is one of our fundamental values,” he said.

The probe is aimed at “starting a dialogue” with Poland, Timmermans stressed, and does not prejudge the outcome.

The Polish government insists the changes are perfectly consistent with the rule of law, and that Brussels should mind its own business.

‘Incoherent accusations’

“Poland has been unfairly accused of things that don’t exist in our country… of breaking the principles of the rule of law. That’s not true. Democracy is alive and well in Poland,” Prime Minister Beata Szydlo said today.

“We would like to see the Commission’s decision in writing. Timmermans’ comments were contradictory,” Foreign Minister Witold Waszczykowski told Reuters, adding that negotiations were likely to last for months.

On Timmermans’ comments, he said: “On the one hand he was talking about the need for dialogue with Poland, and on the other he mentioned the (rule of law) procedure.

“If we are talking about EU treaties, the change to the media law in Poland cannot be subject to the Commission’s assessment. On the Constitutional Tribunal, Timmermans did not take into account the last Tribunal decisions to accept two judges,” Waszczykowski said in a brief telephone interview.

The Tribunal decided this week to take in two judges named by the ruling PiS party.

“This was a very incoherent statement by Timmermans. It creates more confusion than clarity. We will wait to see a decision in writing or else, should there be none, we will try to clarify things in some other way. The dialogue will take months,” Waszczykowski said. 

Harsh words from Brussels were matched by tough rhetoric in Warsaw, with a Polish magazine depicting EU leaders, including German Chancellor Angela Merkel, in Nazi uniforms.

The split is just the latest in an EU sharply divided by a host of problems ranging from Greece’s near eurozone exit to the continent’s biggest migration crisis since World War II.

Poland’s new government stands in sharp contrast to its predecessor, which built an influential position in Brussels, highlighted by the appointment of former centrist Polish premier Donald Tusk to head the European Council of the 28 EU leaders.

It has found common cause too with Hungarian Prime Minister Viktor Orbán, who has likewise fallen foul of the Commission over his changes to the judiciary and press.

Experts say the punitive procedure would lead “nowhere” if the situation in Hungary is not discussed in parallel.

>> Read: Tavares: Discussing rule of law in Poland separately from Hungary will lead ‘nowhere’

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.

  • 18 January: Polish President comes for first official visit to Brussels.

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