The European Commission has taken the unprecedented step of recommending a move towards political sanctions against Poland to stop the drift towards authoritarianism in the eastern EU member state.
Over the last two years Polish government has passed 13 laws that would help it stuff “the entire structure of the justice system” with political appointees, including courts that decide the validity of election results.
After years of warnings about the changes, the Commission on Wednesday said it was moving to invoke Article 7.1 of the EU treaty for the first time ever – starting a legal process whose end would see Poland stripped of its voting rights at EU level.
Frans Timmermans, the first vice-president of the European Commission, told reporters in Brussels that the Commission was invoking the treaty clause “with a heavy heart”.
“If you put an end or limit the separation of powers, you break down the rule of law, and that means breaking down the smooth functioning of the Union as a whole,” he said.
“The Commission has issued a rule of law opinion and three rule of law recommendations, it has exchanged more than 25 letters with the Polish authorities on this matter; numerous meetings and contact between the Commission and Polish authorities have taken place.”
He added: “Sadly, our concerns have deepened. Within a period of two years, 13 laws have been adopted which put at serious risk the independence of the judiciary and the separation of powers in Poland.
“The entire structure of the justice system is affected: the constitutional tribunal, the supreme court, the ordinary courts, the national council for the judiciary, the prosecution service, and the national school of judiciary.
“The common pattern of all these legislative changes is that the executive or legislative powers are now set up in such a way that the ruling majority can now systematically interfere with the composition, power, and administration or functioning of these authorities – thereby rendering the independence of the judiciary completely moot.”
Mateusz Morawiecki, Poland’s Prime Minister, said: “Poland is as devoted to the rule of law as the rest of the EU. Current judiciary reform is deeply needed. The dialogue between the Commission and Warsaw needs to be both open and honest. I believe that Poland’s sovereignty and the idea of United Europe can be reconciled”.
However spokesperson for his Law and Justice party suggested that the decision was politically motived, and in fact because “we don’t want to accept Muslim migrants, as we care for the security of Poles”.
Under the Polish government’s changes, almost 40 per cent of current Supreme Court judges would be forced into retirement, with discretionary powers given to the president to retain favoured justices. New appointments would be made on the recommendation of a newly constituted council dominated by the appointees of ruling parties. Other courts throughout the whole judicial system would also face similar controls from the government and president.
Mr Timmermans made clear that the European Commission was open to restarting talks with the Polish government about the issue at any time and that if the country’s Government fixed the proposals within three months it would consider withdrawing the move.
European Council president Donald Tusk said last week that he had not received a response from the Polish prime minister Mateusz Morawiecki when he asked to meet at the European Council summit on Thursday and Friday.
The next step in the Article 7 procedure will be for EU heads of state to consider the Commission’s procedure and to vote on it. This is expected to take place at the March meeting of the European Council; in order for the proposal to pass, a supermajority of four fifths is required. The European Parliament would also have to back the motion.
The Article 7.1 motion put forward by the Commission will warn that there “is a clear risk of a serious breach by a Member State of the values” of the EU – which include the rule of law and the independence of the judiciary.
If the breach continues then member states can be asked to vote again, under Article 7.2, to confirm that there is a “serious and persistent breach” – which if passed could see Poland’s voting rights in EU institutions suspended.
The second vote would however be harder to pass, because it requires the unanimous consent of the other EU member states – and Hungary’s right-wing authoritarian prime minister Viktor Orbán has said he would vote against such a move. Mr Orbán has also been accused of pursuing anti-democratic reform.