The ongoing probe into “systemic threats” to rule of law in Poland may trigger Article 7 of the EU treaty as early as September. This could lead to sanctions and suspend Poland’s voting rights at meetings of ministers and leaders. The Polish government has one month to respond to the commission’s concerns.

Poland’s judicial revamp

On 12 July, among considerable public protests, the Polish parliament introduced three laws on judicial reform which would dramatically increase government control over its highest courts. The party, which has a slim majority of 234 seats out of 460 in parliament, passed a law dissolving an independent body responsible for the nomination of judges (the national judiciary council-KRS). Judges in Poland are selected by the KRS, consisting mostly of senior lawyers, who propose judges who are later sworn in by the president. The new law would give the ruling party full indirect control over the appointment of judges.

PiS also submitted a draft law that would force the entire Supreme Court into retirement and would lower the requirements for future judges chosen for the court. It would also give the country’s justice minister the ability to decide which judges can stay in their current roles. The Supreme Court is Poland’s top court for civil, criminal and military cases; it also confirms election results.

A third law would give the justice minister the power to nominate presidents of regional and appeal courts.

After a week of demonstrations, on 18 July Polish President Andrzej Duda openly defied his fellow party member Kaczinski by signing only the law on the courts of general jurisdictions. He vetoed the law on the Supreme Court and submitted his own proposals on regulating the KRS: new judges would have to be chosen by a three-fifths majority in parliament — and PiS does not currently have such a majority. If parliament did not pass his draft bill, Duda threatened to veto the legislation on the Supreme Court.

“This project is aimed at preventing the assertion that the KRS is controlled by only one grouping, that it acts under political dictate,” Duda said.

The Polish minister of foreign affairs Witold Waszczykowski said in an interview with BBC News – HARDtalk on 9 August:

“You are right that tens of thousands of people protested in the streets, but millions of Poles did not protest and our party and our government are supported by almost 40 percent of the population in Poland. We have a clear mandate also to transform and democratise the judiciary system, which was left untouched for 28 years since the communist times.”

European commission reacts

Infringement procedures are not uncommon--986 new infringement procedures were launched in 2016, according to the commission.

The European commission decided to launch an infringement procedure against Poland on these judicial reforms on 28 July. The letter of formal notice sets out the concerns of the commission about the

“discrimination on the basis of gender due to the introduction of a different retirement age for female judges (60 years) and male judges (65 years), which is contrary to Article 157 Treaty on the Functioning of the European Union (TFEU) and Directive 2006/54 on gender equality in employment. In the Letter of Formal Notice, the Commission also raises concerns that by giving the Minister of Justice the discretionary power to prolong the mandate of judges who have reached retirement age, as well as to dismiss and appoint Court Presidents, the independence of Polish courts will be undermined (…) The new rules allow the Minister of Justice to exert influence on individual ordinary judges though, in particular, the vague criteria for the prolongation of their mandates thereby undermining the principle of irremovability of judges. While decreasing the retirement age, the law allows judges to have their mandate extended by the Minister of Justice for up to ten years for female judges and five years for male judges. Also, there is no timeframe for the Minister of Justice to make a decision on the extension of the mandate, allowing him to retain influence over the judges concerned for the remaining time of their judicial mandate.”

The Polish government replied on 10 August that the letter was worded in very general terms and did not clear the doubts raised by Poland: “We regret to note that, in our opinion, the European Commission is not demonstrating a willingness to engage in a legal dialogue: it fails to address detailed issues or a legal analysis.”

The commission replied that it had answered the request for clarification on the infringement proceedings over judicial reforms and that the Polish government has until the end of August to present a full argument on why its law complies with EU rules.

The Financial Times reported that Moody’s warned that “any undermining of the rule of law would be “credit negative for the sovereign because it would drag down the rule of law.”

But the problem is that, once these laws are enacted, the commission will be reluctant to act and trigger article 7 TFEU.

Laurent Pech, Jean-Monnet professor for European law at Middlesex university, explained that:

“what PiS has learned from Orbán is that EU will never ask for a sitting official to be removed even when illegally appointed. This is why Polish authorities have ignored the Commission’s recommendations until it was in a position to put its unconstitutional judges in place. Now, the EU will find it virtually impossible to dislodge the unconstitutionally selected judges in order for constitutionality to be restored. If the Polish case is like the Hungarian one, the Commission may even be satisfied with a solution that gives even more protection against removal to the foxes that have been let into the henhouse as a way of dealing with the fact that the previous roosters were manhandled. In Hungary, the new judges appointed in place of the prematurely retired ones were given additional guarantees that they could now not be removed as part of the Commission’s settlement of that case.”

Concerns that the EU is undermined from within

Frank Engel, Luxembourg MEP for the European People’s Party, argued that there is an increased awareness of the significance and the respect for the principles of the rule of law in the EU: “this has nothing to do with sovereignty, but with the fact that we are a political community which has a role to play in the world. This community must agree internally how it wants to organise the separation of powers and the rule of law, and how it impedes the state acting arbitrarily. Elections can change politics, but not the nature of the state. Nevertheless, that is what is happening in Hungary and Poland, which is a massive problem.”

The European parliament has repeatedly called for tougher proceedings against Poland.

But the European council is the biggest stumbling block. EU members need a unanimous decision among all 27 member countries to implement sanctions.

Hungary, which has adopted similar laws that undermine the rule of law in its own state, has already signalled that it would veto any procedure against Poland.

Article 7 was based on the premise that a single member state would infringe the values clause—that a number of member states would do this, seemed unimaginable. The events in Poland and Hungary have shown this open flank of Article 7.

Jean Asselborn, Luxembourg’s foreign affairs minister, stated in ZDF Morgenmagazin on 18 August that it was “crass” and “surreal” how the Polish people were led away from the rule of law. He warned that: “the time of dialogue is nearing its end, in my opinion”, and added that “if Poland were to enter the EU today, it would be told that it doesn’t fulfil the 1993 Copenhagen criteria.”

Another problem is that judicial reform is considered a national competence, and politicians see it as a slippery slope towards giving the EU even more powers. Member states may fear that they will be next.

Ways forward

One option “under scrutiny in western European capitals is to frame the EU’s next long-term budget—probably from 2021 to 2027—in such a way that there would be less regional aid money available for miscreant countries. Since Poland is the biggest net recipient of EU funding, this could be painful for the government.”

Several legal scholars have suggested to start a procedure against both Poland and Hungary on the basis of Article 2, which sets out the values of the European union, among which is the rule of law. Werner Schroeder, professor of law at the university of Innsbruck, has found a way out of this dilemma:

“the observance of the rule of law in general is a value that is laid down in the Treaty’s Article 2. So, it is not actually an internal affair, as Mr Kaczynski of the PiS party indicated. Of course, the member state has the competence to nominate the judges but following the rule of law is not an internal affair. It is an obligation, a binding legal norm that they have to follow.”

Alexander Thiele, lecturer at the university of Göttingen suggests bundling an infringement procedure against Poland and Hungary on this basis, as both countries have adopted similar laws on the organisation of their judiciary.  This would mean they would not be allowed to vote on the infringement procedure.

But he warns that, while this is certainly a possibility to deal with the issue in a legal way, “a community of values is based on conditions which it cannot guarantee itself. Anyone who no longer feels bound to certain values will not change their mind even if they are legally compelled.” He is worried that such action may actually produce the opposite of what is intended, but states that it nevertheless should be tried.