Enforcement of European Union values: how should the EU respond to the recent threat to democracy in Poland?

Polish and EU flagLet’s admit it, things are going wrong in Poland and it can be said that democracy is seriously under threat in the European Union’s sixth-largest Member State. On 23 December 2015, the Sejm – the lower house of the Polish Parliament – passed a highly controversial law, which reorganizes the Constitutional Court. A few days later Andrzej Duda – the president of the country since August 2015 – signed the bill into law. The signing took place after a few weeks of a contentious constitutional crisis and despite of the domestic public outcry, large street demonstrations, concerns from the European Commission and the members of the European Parliament and international criticism.

The amendment introduces a two-third majority and the mandatory participation of at least 13, instead of 9, of the 15 judges. The new law is in breach of Art. 190 of the Constitution which requires only the majority of votes to take decisions. It is argued that the new rules are able to paralyze the functioning of the Court and undermine judicial independence and impartiality, and thus limit the competence of the Constitutional Court to maintain checks on the legislator. However, the changes to the functioning of the Court are only one part of the radical political line of Law and Justice – the ruling party since October 2015 – to take control of most of the country’s vital institutions. Very soon after amending the rules concerning the Court, both chambers of the Parliament passed a new and equally controversial law which would allow the ruling party to choose their own people for the public broadcasters, by transferring the power to appoint the heads of public broadcasters to a government ministry. The public television, radio, and the Polish Press Agency are to be hit by the new law. The reform will also introduce new structures, such as the National Media Council that will make decisions concerning the content of broadcasting and hiring. The members of the Council are to be appointed by the Parliament and the president. It is claimed that the new media law will transfer the public broadcasters into agencies of the government. The new bill was drafted hastily and without any public consultation, and triggered a strong and critical public response from, inter alia, international media rights organizations and again the European Commission. Despite the overwhelming critique, the president of Poland has signed the controversial media bill into law a few days ago, together with a new (and equally controversial) law on the Public Civil Service.

In approximately 3 months that have passed since the parliamentary elections, the country has taken a completely new and radical route. Any efforts on the part of the opposition to influence the current plans of Law and Justice are useless as they can be easily overridden by the ruling party that has an absolute majority in parliament. In a relatively short time, Law and Justice has taken many anti-democratic steps and evidently showed its anti-EU face. Poland, similarly to what has happened in Hungary in the last years, is rapidly becoming a growing problem for the European Union. That being the case, could and should the EU try to use the available enforcement mechanisms to stop the violations (of the rule of law) in Poland?

Article 2 of the EU Treaty provides that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. In accordance with Art. 2, those values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Thus, the provision provides that the rule of law is one of the fundamental values and it obliges Member States to uphold, among other things, freedom and democracy. The principles of separation of powers and judicial independence but also free media are the basic foundations of the mentioned values. Should a government of a Member State violate those, as it seems to be happening in Poland, then it should be held accountable for it.

The most intricate question is, however, whether, in a case such as Poland, the EU can do anything to stop the violations of the rule of law in a Member State and to enforce its core values. Currently there are several, different mechanisms at place that aim at enforcing EU law, i.e.: the Commission’s infringement procedure flowing from Articles 258-260 TFEU, the competence to suspend certain rights of a Member State (e.g. voting rights) that are attached to the membership as laid down in Art.7 TEU, a relatively new framework to safeguard the rule of law proposed by the Commission (also called pre-Article 7 procedure) , and the Council’s own rule of law initiative that is based on establishing annual political dialogue between Member States in order to safeguard the rule of law within the EU.

In line with arguments by Kochenov and Pech and their recent, extensive analysis of the current legal framework to address the violations of the rule of law by a Member State, one can conclude that the first and second instrument do not provide the Union and the European Commission with an adequate mechanism that could effectively tackle the problem of (systemic) rule of law violations, like those happening in Poland. The option enshrined in Art. 7 TEU, which can be used in a situation of a serious and persistent breach of fundamental rights and which potentially could have a great impact, is from both a procedural and a political point of view practically impossible to be activated. Also, as argued by Kochenov and Pech, the infringement procedure that may be initiated by the Commission proves to be of limited use when it comes to systemic infringements of EU values. Indeed, both procedures suffer from a number of procedural and substantive shortcomings. Seeing the hard, anti-EU political line the Polish ruling party has taken and which they do not even try to hide or cover, one can also be very sceptical about the potential effectiveness of the Council’s rule of law initiative.

What about the Commission’s framework to safeguard the rule of law then? Generally, the new mechanism requires the Member State that allegedly violates the rule of law in a systemic way to engage in a three-stages dialogue with the Commission, that consists of completing an assessment of the situation in the concerned Member State by the Commission, subsequently of issuing a “rule of law recommendation” by the Commission, and finally of monitoring (again by the Commission) the actions undertaken by the Member State concerned to implement the concerned recommendation. Should the non-binding recommendation not being taken seriously, the mechanism enshrined in Art. 7 TEU could be activated. The new mechanism remains thus a soft one and is based on a process of continuous dialogue between the Member State and the Commission. Does it then have the capacity to coerce a Member State to stop the violations? Knowing the political line of the present government in Poland, one could easily come to the conclusion that the potential success of this enforcement mechanism is somewhat doubtful as there will be no (hard) way to force the government to implement the recommendations by the Commission. What is more, assuming that the Polish government does not implement the recommendations, the possible activation of Art. 7 TEU seems impossible too, taking into consideration that the Hungarian prime minster has recently announced that it will not support any sanctions against Poland. And yet, despite the fact that the real effects of the framework to safeguard the rule of law might seem a bit weak, the Commission must seriously consider activating the mechanism. Otherwise the EU’s norms and values become virtually meaningless and the EU integration process increasingly worthless.

In the meantime, the Commission’s president, Jean-Claude Juncker, has scheduled a debate on the rule of law in Poland during the Commission’s meeting on 13 January. All eyes are now on the Commission…