Poland Is Not Yet Lost: The EU’s Rule of Law Mechanism in Action

Yesterday, on June 1, 2016, the European Commission adopted an Opinion on the rule of law in Poland, which was subsequently presented by the Commission’s Vice-President Frans Timmermans at a press conference. Over the last few months, the European Commission has grown increasingly concerned with developments in Poland that are seen to be at odds with the EU’s rule of law standards, in particular concerning the Polish Constitutional Tribunal. Respect for the rule of law is a prerequisite for the protection of all other fundamental values upon which the EU is founded. This Opinion comes as a first step under the new rule of law framework developed by the EU to tackle such issues.

After developments in Austria in 2000, when the EU adopted diplomatic sanctions against the country in response to the participation of the far-right Freedom Party (FPÖ) in a government coalition, and more recently in Hungary, where President Orbán has explicitly embarked on a project of creating an “illiberal democracy”, the European Union sought tools to address situations where there is a potential systemic threat to the rule of law. Such situations create a clear risk of a serious breach of the rule of law by an EU Member State, a common value among the Member States and one of the normative foundations of the EU itself as provided in Article 2 of the Treaty of the European Union.

On 11 March 2014, the European Commission adopted a new framework to tackle these problems. This framework complements the existing infringement procedures under Article 258 of the Treaty of the Functioning of the European Union (TFEU) and Article 7 of the Treaty of the European Union (TEU). While the former targets correct application of EU law as a whole, the latter, also known as the ‘nuclear option’, refers to “serious and persistent” breaches of EU values, including the rule of law, by a Member State (Article 354 TFEU), which can result in the suspension of voting rights. The new framework establishes an early warning mechanism whereby the Commission, in its function of “guardian of the Treaties”, enters into a dialogue with the Member State concerned to prevent the continuation or escalation of systemic threats to the rule of law within the Union. Article 7 may be triggered if no political solution is found. However, as a last resort mechanism to comply with EU values, it has never been used.

The Opinion on Poland is the first of three stages of the framework. In the first phase the Commission assesses the existence of a systemic threat to the rule of law and opens a dialogue with the Member State concerned by sending a Rule of Law Opinion substantiating its concerns. This is what happened on 1 June. If the issue is not resolved the Commission addresses a Rule of Law Recommendation, imposing a time limit for implementation. The Member State must inform the Commission of the steps taken to address the issue within the prescribed timeframe. Failure to comply activates the final stage of the procedure, also known as the “nuclear option”, whereby the Commission, the Parliament or one third of the Member States can impose sanctions on the offending Member State.

The Commission adopted the Opinion due to the worrying reforms adopted by the new government since late last year in Poland regarding the Constitutional Tribunal. The government has refused to reverse laws affecting the functioning of the Constitutional Tribunal, the independence and appointment of its judges and the effectiveness of constitutional review. Poland’s independent judiciary and freedom of expression are at risk. Both the Constitutional Tribunal and the European Commission for Democracy through Law (the Council of Europe’s advisory body on constitutional matters, also known as the “Venice Commission”) have characterized these developments as deeply troubling and unconstitutional.

“Jeszcze Polska nie zginęła”—“Poland is not yet lost”: These are the famous first words of the Polish national anthem, known as Dąbrowski’s Mazurka. It is named after Jan Henryk Dąbrowski, a general who led Polish troops serving under Napoleon in the Italian campaigns during the French Revolutionary Wars. It was written only a few years after the third partition of Poland. While historically this is regarded as the “final” partition of the country, it would not be the last time the central European nation would be deprived of its independence and freedom. It is understandable that criticisms against the Polish government’s course of action will be met with counterarguments of non-interference and sovereignty. However, what cannot be rebuffed are three simple truths. First, though he speaks both German and Russian, Frans Timmermans is not the King of Prussia, and certainly not the Russian Czar. The European Union is not a foreign power at the gates. It functions as a watchdog for basic European values. Second, threats to freedom, fundamental rights, and the rule of law do not always come from the outside. Third, undermining a constitutional system of checks and balances, eroding the rule of law, and departing from a hard-won European consensus on basic values of democratic societies can never be an act of enlightened patriotism.

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