The European Commission's response to the deterioration of the rule of law in Poland is an attempt to protect us all.
The response by the European Commission to the deterioration of the rule of law in Poland probes sharply at the identity of the EU. It contains echoes of the recent uproar here after the government’s lame response to the attack on judges by the Brexit press. What has been happening in Poland, though, is far, far worse.
Just before Christmas, the Commission published its second recommendation to Poland, since there are still unresolved issues after its first recommendation last summer. And new events have occurred since the summer, leading the Commission to believe that there continues to be a systemic threat to the rule of law in Poland which needs to be addressed as a matter of urgency.
The events are complicated. The main issues so far have concerned appointments to the Constitutional Tribunal, since the authorities refused to recognise legitimately appointed judges and appointed their own without a valid legal basis. They refused to publish decisions of the Constitutional Tribunal which went against their own wishes. But in new laws published just last month, the authorities have gone further. As just a sample of the atmosphere surrounding Constitutional Tribunal judges, I summarise below what one of the new laws says, with the Commission’s response briefly summarised in brackets afterwards.
The new law on the status of judges permits the president of Poland to report a judge for misconduct (‘the President of the Republic should not have the power to initiate disciplinary proceedings … could have an impact on the independence of the Tribunal’); the new law encourages a quick and early retirement among the judges on advantageous terms (‘represents an interference by the legislative power with the independence of the Tribunal as it aims at encouraging the current judges of the Tribunal to resign in advance of the end of their term of office and at influencing their decision in that respect’); the law introduces new requirements for judges of the Tribunal concerning financial participation in companies, declarations of assets and declarations on the economic activity of their spouses, failure to perform which is deemed to be equivalent to resigning as a judge (‘raise questions of proportionality and as noted by the Supreme Court, questions of constitutionality’).
The Commission is undertaking this action based on two articles in the Treaty. Article 2 states clearly that ‘the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. And Article 7 gives the European Council (the leaders of the member states) the power to take action if there is ‘a serious and persistent breach by a member state of the values referred to in Article 2’. Article 7 action, on a four-fifths majority, can include - at its most severe - suspension of the voting rights of the member state in question.
In March 2014, a three-step framework for the implementation of Article 7 was adopted by the Commission, and this is now being carefully followed, with constant calls to maintain dialogue with the Polish government. We are at present at the second step. The latest Recommendation gives the Polish government two months in which to introduce changes, which means that by the end of next month member state governments - rather than the Commission - may be in the driving seat regarding sanctions.
This matter, as I said at the outset, raises sharp questions about the identity of the EU. Leaving aside the accepted legal basis in the Treaty for its actions, what is the Commission doing interfering with the internal decisions related to court structure and composition taken by a democratically elected member state government? There is a range of possible answers.
On the one hand, the sigh of relief of Brexiteers that we will soon be free from this monstrous octopus of interference comes at us like a hurricane.
But there are other equally valid responses. Even if we want the EU to be only a free market for goods and services, trust in the neutrality of its courts and the country’s commitment to the rule of law (‘mutual recognition’ in Euro-speak) are vital for fair trade. The Commission puts it this way: ‘Respect for the rule of law is not only a prerequisite for the protection of all the fundamental values listed in Article 2 TEU. It is also a prerequisite for upholding all rights and obligations deriving from the Treaties and from international law, and for establishing mutual trust of citizens, businesses and national authorities in the legal systems of all other member states.’
I am pleased that the Commission is not only protecting Polish citizens, but protecting us all, by insisting on maintenance of the rule of law everywhere in the EU.
Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs