POLAND’S quarrels with the European Union are rich and varied. They cover, among other things, refugees, the treatment of media and logging in ancient forests. But it is the Polish government’s systematic assault on the country’s courts that arouses the deepest anxieties in Brussels.
By – Economist.com
Today those concerns found their most serious expression yet, when the European Commission, the executive arm of the EU, opened proceedings against the Polish government under Article 7.1 of the EU treaty.
Announcing the decision Frans Timmermans, the commission’s first vice-president, said that in the past two years Polish authorities had adopted at least 13 laws affecting the judiciary, covering ordinary courts, the constitutional tribunal, the Supreme Court and the body that selects judges.
These changes, said Mr Timmermans, had rendered the independence of the judiciary “completely moot”. The EU’s 27 remaining governments must now take up the issue.
The EU has long struggled to respond to member states that undermine the rule of law or interfere with independent institutions. But the commission has never triggered Article 7.
Its move is best understood as an attempt to pass the buck away from Brussels and towards Poland’s peers in other governments. Mr Timmermans has been waging a lonely campaign against Poland since the commission first expressed its concerns in January 2016, soon after an election that brought the conservative Law and Justice (PiS) party, led by Jaroslaw Kaczynski, to office.
If nothing else, said Mr Timmermans, the decision to place the issue in governments’ hands would demonstrate to sceptical Poles that the EU’s troubles with their leaders amount to more than the fevered imaginings of “one madman in the commission”.
The Polish government quickly hit back. The foreign ministry dismissed the commission’s decision as “political, not legal”. A government spokeswoman suggested that Poland was being punished not for its judicial reforms but for its unwillingness to accept relocated refugees.
The government in Warsaw has little incentive to back down. Mr Kaczynski believes that the 1989 revolution which ushered in democracy was betrayed by self-serving elites, including communist-era judges, and is acting to reinvent the state from top to bottom.
Membership of the EU remains popular among Polish voters, but so does their government: PiS is streets ahead of its competitors in opinion polls, thanks largely to a booming economy.
Indeed, the commission’s move places the Polish opposition, already divided and demoralised, in a tricky spot: should it back the government, or take the side of hectoring bureaucrats in Brussels? PiS, via its factotums in the state media, will exploit this quandary to the hilt, presenting itself as the only party that can be trusted to preserve Polish sovereignty.
For these reasons, some had argued that Brussels should take a softer line. But the commission also faced a dilemma. Having pursued Poland for two years, it could hardly give up in the face of PiS’s intransigence.
National courts serve as the tributaries for EU law, so any government interference with the Polish judiciary undermines areas as diverse as investment protection, child custody and administration of the European Arrest Warrant. Weakening the rule of law in Poland, Mr Timmermans noted, “means breaking down the smooth functioning of the [EU] as a whole”.
Now that the commission has made its move, what will European governments do? First they must summon Polish representatives to explain themselves.
If the member states remain dissatisfied, a four-fifths majority (22 of the 27 governments) can declare that there is a risk to the rule of law in Poland. Triggering the second part of article 7 – the so-called “nuclear option” – could lead to Poland losing its voting rights inside the EU. But Article 7.2 requires a unanimous vote inside the European Council, and Hungary’s government, which is fighting its own battles against Brussels, has vowed to exercise its veto.
The hope is that Poland will listen more to Paris, Berlin and the other EU capitals than it has to Brussels. The mood in those places has begun to harden.
Emmanuel Macron, France’s president, says the rule of law is “non-negotiable”. Germany, ever-attentive to EU unity, is reluctant to lean on the Poles publicly, but privately officials in Berlin are deeply concerned.
But if the EU’s governments collectively prove reluctant to apply further pressure to Poland, the commission will have little left in its armoury. Whatever else the decision to trigger Article 7.1 was, it was certainly a gamble.
Read more: From 2017/09/11