Menue_phone
28.08.2017

EU calls time on Poland's Rule of Law

By Jessica Jacques

The deadline has passed on the European Commission’s final warning to Poland, in an effort to preserve the Rule of Law in the country. The clock is now ticking on whether the Commission will now trigger the so-called "nuclear option" – Article 7.

map of Poland The deadline has passed on the European Commission’s final warning to Poland, in an effort to preserve the Rule of Law there.

In response the Polish government has called the European Commission’s concerns “groundless.“ In a statement, the Polish Foreign Ministry said that “the legislative process which has the primary goal of reforming the justice system is in line with European standards and answers social expectations that have been growing for years.“ The ministry says it has given all required information about the situation in Poland to the Commission, arguing the reforms are needed to modernise the legal system and make judges more accountable to the Polish people.

New media law and governance

Since the election of the Law and Justice Party (PiS) on 25th October 2015,  the EU has been scrutinising the conservative government’s actions regarding the judiciary, press and media freedom and women’s rights. The Polish government’s actions include new media laws putting the public broadcaster under political control, and laws giving the government the power to dismiss or prolong the office of judges in the lower courts, and different retirement ages for male and female judges.

Regarding press and media freedom, the PiS party quickly moved to replace top figures at public service television and radio stations. The government also passed a law to give the state direct control to appoint and dismiss media executives at public television and radio broadcasters, which up until then were made by politically independent bodies. Furthermore, there are plans to restrict the amount of foreign capital in Polish media. A draft law is in preparation which will most likely target German-owned regional newspapers.

In December 2016, the European Parliament debated the Rule of Law and democracy in Poland for the fourth time. It followed an earlier statement from Frans Timmermans, First Vice-President of the European Commission, who said it was “regrettable” that ”the Polish government’s reply has not announced any improvements” with respect to judgements made by the Constitutional Tribunal and obstructions to its work.

Debate in European Parliament

In December 2016, the European Parliament debated the Rule of Law and democracy in Poland for the fourth time. It followed an earlier statement from Frans Timmermans, First Vice-President of the European Commission, who said it was “regrettable” that ”the Polish government’s reply has not announced any improvements” with respect to judgements made by the Constitutional Tribunal and obstructions to its work.

During the debate in December, some political groups called on the Commission to trigger Article 7, criticising the Polish government for continuing to threaten democratic principles and European values. Several said that this was about supporting Poles protesting on the streets against the destruction of their fundamental rights. Other MEPs viewed such a debate as interference in Poland’s national sovereignty and domestic affairs, with some even denying that there were any issues with the Rule of Law or fundamental rights such as women’s rights or judicial independence. Some MEPs went as far as to criticise “European elites“ for fuelling anti-EU sentiment in the pro-European Polish society.

The European Parliament had first debated these issues in January 2016 in the presence of Polish Prime Minister Beata Szydło. The Commission then began a “Rule of Law audit“ procedure regarding the situation. 

In February, Julie Majerczak, head of the Brussels office of Reporters Without Borders, said, “The Polish government repeatedly attacked media freedom during the past year. The European Union shouldn't allow one of its members to trample on EU’s core values.”

The ECPMF has outlined how the European Union is able to enforce the Rule of Law in Poland and thus take steps to protect press and media freedom.

What is Article 7?

  • The Article 7 (1) TEU preventative mechanism can only be activated in case of a “clear risk of a serious breach” of rule of law

  •  The Article 7 (2) TEU sanctioning mechanism can only be activated when there has been a “serious and persistent breach by a Member State“ of fundamental EU values such as freedom, democracy and equality

  • While the first mechanism acts as a warning, the second allows the Council to suspend certain rights such as the member state’s voting rights in the European Council

On 26th July 2017 the Commission gave Poland notice to address these problems, in particular to not take any measures to dismiss Supreme Court judges or force them to retire. If the Polish authorities “take any measure to dismiss or force the retirement of Supreme Court judges, the Commission stands ready to immediately trigger Article 7 (1) of the Treaty on European Union.“

On 29th July 2017, after Poland published the Law on the Ordinary Courts Organisation, the Commission sent a Letter of Formal Notice, and resolved to start an infringement proceeding against Poland for contravening EU law.

"The systemic threat to the rule of law"

Timmermans told the Commission in July: “We have now finalised a comprehensive legal analysis, confirming that the four laws, as adopted by the Polish Parliament, would have a very significant negative impact on the independence of the Polish judiciary and would increase the systemic threat to the rule of law.“

The Commission’s recommendation noted the “particularly worrying“ situation for the respect of the rule of law after the adoption of new legislative acts such as the law on the National Council of Media.

According to the new framework for addressing systemic threats to the rule of law in EU Member States, adopted by the Commission in March 2014, the Commission “extended their hand“ to the Polish authorities to enter into a dialogue with the goal of redressing the situation.

Timmermans acknowledged and welcomed Polish President Duda’s decision to veto two of the four laws. But this was not enough and the Commission officially gave the Polish authorities one month to solve all problems identified





Get in Contact

fact finding mission analysis