Poland and the EU Rule of Law Framework – a never ending dialogue?

De Poolse regering ondermijnt de Poolse rechtstaat, althans dat vindt de Europese Commissie. In het artikel legt promovenda Hoai-Thu Nguyen uit welke pogingen de Commissie heeft ondernomen om de Poolse regering ertoe te bewegen de wetgeving weer af te stemmen op de door de EU gestelde kaders voor de rechtstaat. De Poolse regering geeft echter niet toe aan de druk vanuit Europa. Als laatste maatregel zou de Commissie Polen als Europese lidstaat kunnen schorsen, maar die optie lijkt, zo geeft Nguyen aan, niet haalbaar. Het resultaat is dat de dialoog over het functioneren van de Poolse rechtstaat zich blijft voortslepen.

Last month the Council of Ministers debated in its meeting of 16 May 2017 the rule of law situation in Poland.[1] It was the first time that the EU ministers discussed the rule of law in a Member State. Poland had been on the Commission's radar for more than a year, with investigations under the new Rule of Law Framework starting in January 2016 already, for its controversial reforms regarding the functioning of the Polish Constitutional Tribunal and the appointment of its judges.

Rule of Law: an overview

The EU Framework to strengthen the Rule of Law was introduced in March 2014 as a preliminary step towards the launching of the mechanisms of article 7 TEU. Its objective is to prevent the development of emerging systematic threats to the rule of law in a Member State to a "clear risk of a serious breach" under article 7 TEU, which in the most severe case can lead to the suspension of the voting rights of the Member State concerned in the Council. The Rule of Law Framework provides for a three-stage process. The first stage is the Commission's assessment, during which the Commission collects and examines all relevant information pertaining to the situation and assesses whether a systemic threat to the rue olf law exists. If it finds the latter to be the case the Commission can send an opinion to the Member State concerned setting out its concern. Despite several exchanges and meetings between the Commission and the Polish government between January and June 2016, the Commission's concerns could not be resolved, resulting in the adoption of a rule of law opinion regarding the situation in Poland on 1 June 2016.[2]

Because in its opinion the situation had not been satisfactorily resolved by 27 July 2016, the European Commission then issued recommendations addressed to Poland, thereby triggering the second stage of the Rule of Law Framework (the third stage being monitoring the Member States' follow-up on the recommendations). In its recommendations, the Commission gave the Polish government three months to resolve the issues identified therein, notably relating to the appointment of judges to the Constitutional Tribunal, the publication and implementation of judgments rendered by the Constitutional Tribunal and the functioning and effectiveness of constitutional review of new legislation by the Constitutional Tribunal.[3] On 21 December 2016 the Commission then issued a second set of complimentary recommendations to Poland, urging the government to resolve the matters within a two months period.[4] As a response, the Polish government sent a reply on 20 February 2017 refuting any rule of law issues regarding its Constitutional Tribunal,[5] and not much has changed since then.

What next?

The next step for the Commission would now be to trigger article 7 TEU but it remains a very unlikely scenario. In order to establish a "clear risk of a serious breach" of the fundamental values of the EU – which includes the rule of law under article 2 TEU – by a Member State, the Council needs to act by 4/5 majority after obtaining the consent of the European Parliament, on the proposal by the Commission, the EP or 1/3 of the Member States (art. 7(1) TEU). For the determination of the existence of a breach of the rule of law by a Member State, which is the pre-condition for a possible suspension of the voting rights of the Member State concerned in the Council, unanimity is required in the European Council (art. 7(2) TEU). However, at least one Member State – Hungary – has already said that it would veto any such decision. But also the other EU Member States are divided in their views regarding how to approach the situation in Poland. Not all EU governments are in support of the Commission's intervention in rule of law matters in the Member States, while others are wary of the timing as the EU is faced with other challenges – most notably the Brexit challenges.[6] Thus, article 7 TEU was not a discussion point at the Council meeting in May.[7] Instead the ministers "emphasized the importance of continuing the dialogue between the Commission and Poland".[8]

The development of the rule of law situation in Poland shows the difficulties of the Commission to enforce the rule of law in the Member States if the latter are unwilling to change the situation themselves. So far the Commission has also been reluctant to trigger article 7 TEU. In the light of this, a discussion on the state of the rule of law in Poland in the Council of Ministers may be a first step in the right direction. But dialogues and discussions should not remain the only one step, especially if they are inconclusive. If the Commission wants to send a signal that it is committed to defending the values of the EU, including the rule of law, it should trigger article 7 TEU. If the procedure set out therein then dies in the Council because of a lack of support by the Member States, then so be it – the Commission could then blame the Member States for the failure to activate article 7 TEU. But it should not let such considerations hinder it from using the powers given to it in the first place.

[1] http://www.consilium.europa.eu/en/meetings/gac/2017/05/16/

[2] http://europa.eu/rapid/press-release_IP-16-2015_en.htm

[3] http://ec.europa.eu/justice/effective-justice/files/recommendation-rule-of-law-poland-20160727_en.pdf

[4] http://europa.eu/rapid/press-release_IP-16-4476_en.htm

[5] http://www.msz.gov.pl/en/news/mfa_statement_on_poland_s_response_to_european_commission_s_complementary_recommendation_of_21_december_2016_

[6] https://euobserver.com/institutional/137346

[7] https://euobserver.com/institutional/137927

[8] http://www.consilium.europa.eu/en/meetings/gac/2017/05/16/