Timmermans: Dialogue with Poland over rule of law will continue

Frans Timmermans [L] at the College meeting on 6 April 2016, with , Jyrki Katainen and Jonathan Hill. [European Commission]

Vice-President of the European Commission Frans Timmermans was optimistic after a series of meetings with the Polish government. Yet Poland will continue to be monitored under the Rule of Law Framework.

Timmermans visited Poland on Tuesday (5 April) to check the status of the dispute surrounding recent nominations to the Constitutional Tribunal.

The visit comes against the background of the unprecedented decision by the Commission to start a potentially-punitive process aimed at buttressing democracy and rights in the 28 EU states.

EU takes unprecedented step against Poland over rule of law

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 so-called Rule of Law Framework’s monitoring procedure, under which Poland was put when the Polish president did not recognise the judges nominated to the Tribunal by the previous government, and when the government proposed to introduce changes to the way Polish public broadcasting is managed.

Current complications

The situation in Poland was further complicated when the current government refused to publish the Tribunal’s 9 March ruling.

The decision was on a reform proposal put forward by the government in order to change the way that justices are nominated to the Constitutional Tribunal and in which the Tribunal as a whole functions. The parliamentary opposition, NGOs, as well as professional associations of judges and lawyers view the reform  as a way to limit the ability of the Tribunal to actually oversee new regulations and, therefore as a violation of the constitution.

The Tribunal agreed with them on 9 March. However, for the ruling to enter into force, the government has to publish the verdict. It continues to refuse to do so, despite calls from the opposition.

In what can be seen as a gesture toward compromise, the ruling Law and Justice party (PiS) has invited representatives of the major parties (including some of those outside the parliament) to discuss the current situation with the Tribunal and try to find a common ground. The first meeting left the opposition divided: some of their representatives were happy with the dialogue and described the discussion as a positive sign, while others considered it to be just a trick by Law and Justice aimed at creating an impression of openness, rather than actually doing something.

Independently, a civic movement, the Committee for the Defence of Democracy (Komitet Obrony Demokracji), are regularly organising demonstrations, demanding the publication of the Tribunal’s ruling. Tens of thousands people show up at them.

Timmermans pleased with dialogue

After a series of meetings with the ministers in the current government, as well as with the President of the Tribunal Andrzej Rzepliński yesterday, Timmermans was quite upbeat. He stressed that the dialogue initiated by Law and Justice is the way to solve the crisis, and that the European Commission will strive to facilitate these discussions.

He was also careful not to step on any toes – the Polish government has already accused the Commission of “meddling” in Poland’s internal affairs. Therefore Timmermans was quick to emphasise that “the Polish government has the full right to implement any programmes they have promised to the voters” albeit the Commission will make sure that “the existing treaties signed by Poland are respected”.

Nevertheless, Timmermans did express his own opinion on the constitutional crisis. He thinks that “starting point of the dialogue should be the respect for the existing constitutional order – that is the existing rulings of the Constitutional Tribunal, which in my view should be published and implemented and the three judges nominated legally by the previous should be sworn in”.

With regards to further actions towards Poland, Timmermans recommended at today’s College meeting that the current format of his visits to Poland should continue. In the implicit criticism of the previous communications with the Polish government, he said that “meetings face-to-face are more useful than the exchange of letters”.

Timmermans has also announced that he will return to Poland in two weeks’ time. He will then meet with the government again, but this time he will also see the Ombudsman – and he invited other members of the public, including NGOs and academia, to come and talk to him.

Aside from the Constitutional Tribunal issue, Timmermans talked with the Polish government about SMEs and free movement of goods. He promised Warsaw the Commission’s support in lessening the administrative burden for small and medium enterprises. He said he was “pleasantly surprised” at Poland’s strong determination to improve the movement of goods on the single market.

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

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 taken, 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 be 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 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.

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