Commission threatens to trigger ‘nuclear option’ for Poland

Polish Justice Minister and General Prosecutor Zbigniew Ziobro (C) speaks during the press conference in the Polish Sejm in Warsaw, Poland, 26 July 2017. The conference was on the judiciary reforms. [Pawel Supernak/EPA]

The European Commission has “substantial concerns” about the rule of law in Poland. The ongoing reform of the judiciary, meant to increase the government’s control over the judicial system, has pushed the College of Commissioners to issue a third set of recommendations to the Polish government. EURACTIV Poland reports.

The European Commission today gave Poland one month to address all the issues Brussels has identified with the country’s judicial reforms or face Article 7 of the Lisbon Treaty.

Polish President Andrzej Duda on Monday (24 July) vetoed two controversial bills aimed at increasing the government’s control over the judiciary, in particular the National Judiciary Council and the Supreme Court.

However, he still signed a bill which allows the minister of justice to remove and appoint the heads of lower-level courts. The Commission also has doubts about changes in the National School of Judiciary and Public Prosecution, which, in the view of the experts, also increases the minister’s control over who will become a judge.

First-Vice President of the Commission Frans Timmermans has admitted there is a possibility of using the ‘nuclear option’ of Article 7 – that is suspending Poland from its voting rights in the Council. The Commission will trigger the procedure if there is a move to dismiss any Supreme Court judges under the new rules.

Article 7: The ins and outs of the EU's 'nuclear option' for Poland

The European Commission will decide on Wednesday (26 July) how to deal with the Poland’s reform of its judicial system, which Brussels and the Polish opposition say undermines the judiciary’s independence and violates the EU’s basic principles of the rule of law.

Yesterday, anticipating the Commission’s decision, Foreign Minister Witold Waszczykowski underlined on Polish Radio that “[Poland] is a sovereign country. No international institution has the right to intervene here.”

The Commission agreed that Poland is a ‘sovereign country’, yet it decided to remind Warsaw of its obligations. “Of course, Poland is allowed to reform its judiciary. Yet, any reforms have to be in line with the Polish Constitution and the European Treaties”, Timmermans said on Wednesday.

Minister of Justice Zbigniew Ziobro was defiant. He has replied to Wednesday’s events by avowing to finish the reform despite “any pressure or threats”. He also stressed that the Polish judiciary needs reforms in order to start functioning properly, as the current lack of oversight leads to abuses from within the system.

The Commission will also take a legal action – an infringement procedure – as soon as the new laws officially come into force. The preparatory work has already been done by the legal services of the Commission but it cannot begin when allegedly unlawful changes have still not been published in the official journal.

The procedure itself will be motivated not only by the alleged rule of law violations, but also because one the passed bills has changed the retirement age for judges, lowering it for female justices, which violates EU regulations on gender equality.

Rafał Dymek, the Director of the Robert Schuman Foundation in Warsaw, has noted that “suspending Poland’s voting rights in the Council seems unlikely, as member states will not agree on it. Nevertheless, Polish influence in the EU will drop.” He explained that the sheer number of issues between Warsaw and Brussels hampers the ability of the Polish government to make other member states and the EU institutions to look favourably on its proposals.

Currently though, the government is in a state of upheaval and focused on internal matters more than the external ones. Until this week the President was viewed as a strong supporter of the ruling Law and Justice (PiS) party’s policies and his approval of the new bills had been taken for granted.

The President’s veto and his strong push against Ziobro have thrown a spanner in the government’s plans for the coming months and exacerbated divisions within the ruling party. The first reaction of the government was to threaten to withdraw its support for Duda for the next presidential elections, scheduled for 2020.

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