Poland’s right-wing government and the European Commission said yesterday (24 May) they were upbeat about finding a solution that would roll back Warsaw’s overhaul of the top Polish court, which critics warn endangers its independence.
However, neither side provided details about the measures meant to change controversial legislation introduced by the Law and Justice (PiS) government that has paralysed the constitutional court.
The Law and Justice (PiS) government plunged Poland into a political crisis in December, within weeks of winning power, when it pushed through legislation to overhaul the constitutional court and modify its decision-making rules.
In January, the European Commission launched an unprecedented probe to see if the changes – seen by critics as endangering the institution’s independence – violated EU democracy rules and merited punitive measures.
On 18 May the Commission warned it could take further action against Poland, unless Warsaw’s conservative government makes “significant” progress.
Last week, the excutive gave Warsaw until Monday (23 May) to make substantial progress in addressing its concerns, threatening to pursue a procedure which could ultimately see Poland stripped of its voting rights in the EU – something never done before.
The Monday deadline came and went, without any action by the commissioner.
“I am confident we are moving towards finding a sustainable solution to this problem,” European Commission First Vice-President Frans Timmermans told reporters in Warsaw after talks with Prime Minister Beata Szydło.
Szydło said that changes her government will introduce “are intended to heal the situation around the Constitutional Tribunal and fulfil the principles of a democratic state with the rule of law.”
The conciliatory tone comes just five days after Szydło accused Brussels of violating Poland’s sovereignty and vowed that Warsaw would never bow to any EU ultimatum on the Constitutional Tribunal.
“We both agree this is a matter that Poland must resolve itself, but as an EU member we are always open to dialogue and providing information about our steps,” Szydło said.
Warsaw is unlikely to be subject to any punitive measures by Brussels over its controversial legislative moves, which also include tightening the government’s grip on public media.
Poland’s regional ally Hungary has vowed to torpedo any possible sanctions, which would require the unanimous approval of all 28 EU members.
Earlier this month, around a quarter of a million Poles marched to defend their country’s place in the European Union and protest against the PiS government’s dismantling of democratic checks and balances.
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 include 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 made, the Council shall hear the member state in question and may address recommendations.
But as Article 7 is described as a ‘nuclear bomb’ which may never been used, the previous Commission, under José Manuel Barroso, introduced a "pre-Article 7 procedure", which follows three stages. Those are:
- Commission assessment: As a first step, the European 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 European 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 executive then makes its recommendation public.
- Follow-up to the Commission Recommendation: In a third stage, the European 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 imposed sanctions against a member state only once. 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.