The EU, Poland and the rule of law: writing a new chapter
As the Council starts to discuss the rule of law in Poland, the EU enters a new stage as a guardian of human rights in its member states. Some observers have claimed that the Commission acted too late and did too little, but this criticism is undeserved.
The world is not short of political havoc these days, and Europe gets its fair share. Brexit, the migration crisis, a rapidly deteriorating relationship with the United States, differing views on the governance of the Eurozone and on the EU’s long-term budget… These are all issues that will be on the agenda of the “Mother of all EU summits”, on 28-29 June. But it is actually on Tuesday, 26 June, that a new chapter in the history of European integration will be written.
On that day the General Affairs Council will discuss the state of the rule of law in Poland. True, it is not the first time that the Council visits this topic. But on Tuesday there will be a formal hearing in the context of the procedure provided for by Article 7 of the EU Treaty. The Council will have to determine if there is a clear risk of a serious breach by Poland of the rule of law. So far this procedure has never been used, and for a long time it was assumed that it never would. But the Rubicon has been crossed, and the Council meeting will mark a new stage in the development of the EU as a guardian of the rule of law in its member states.
Anyone who has followed the news knows the story: since coming into power in 2015, the current Polish government has adopted a package of measures designed to reform the court system; these measures have been widely criticised, both by Polish judges and by external bodies, as undermining the independence of the judiciary; the European Commission has been actively involved since late 2015, issuing recommendations and engaging in lengthy negotiations with the Polish authorities. In December 2017 the Commission took the unprecedented step of triggering the Article 7 procedure. It issued a lengthy “reasoned proposal” in which it argued that, indeed, the rule of law is seriously at risk. The matter is now before the General Affairs Council which will need to decide, by a majority of four-fifths of its members, how to proceed. The outcome is difficult to predict; it may well be that the Council will decide to devote a series of meetings to this issue before taking a decision.
All this has been analysed and documented in great detail; here at Leiden Law School a number of conferences and events were devoted to the situation. But now that we find ourselves on the eve of the Council meeting, there is one point that I would like to highlight. When going through recent articles and blogs of some of my colleagues and human rights advocates it strikes me that the attitude towards the Commission has become increasingly mistrustful and even hostile. To avoid misunderstandings: I am not referring here to the Polish government and its supporters (who are obviously opposed to the Commission’s role), but, quite to the contrary, to those who favour the Commission’s intervention. Those who would have wanted to see more. Let’s take, by way of example, a recent blog by prof. Tomasz Koncewicz of the University of Gdansk for the Verfassungsblog. As always his blog is highly readable, creative in its approach to the law and to the point when it comes to conveying a sense of urgency. But my colleague is extremely critical of the Commission. When it comes to confronting the situation in Poland, the Commission, he says, is hesitant, wavering, about to compromise and, indeed, happy to "throw the rule of law out of the window". The outside observer might be inclined to believe that, to the extent that there are any bad guys in this story, they are based in Brussels and nowhere else.
Of course, one may be disappointed with the conduct of the proceedings so far. Expectations may have been high, perhaps too high. But let's not forget that the Commission did take a series of unprecedented steps, despite a lot of political pressure and extremely harsh criticism from those who argued that the Commission misunderstood the situation and was interfering with internal affairs anyway. Let's not forget that the Commission did manage to continue the procedure this far. That in itself was not so obvious – one cannot take for granted that the Commission’s proposal will receive sufficient support from the Member States. The ball is now in the Council's court, so we'll soon find out. But without the Commission's efforts we would not even have reached this stage. And when leafing again through the series of documents that the Commission has issued on the situation in Poland, one cannot but be impressed by their quality. I would say that one must acknowledge the job that was done by Vice-President Frans Timmermans and Commissioner Vĕra Jourova and their staff. Without their efforts and commitment the situation would have been quite different.
Seen from another perspective, it should be observed that it was the EU Commission that took the lead in addressing the situation in Poland, rather than the Strasbourg-based Council of Europe – the traditional guardian of human rights, democracy and the rule of law. For sure, various bodies of the Council of Europe, such as the Venice Commission and the anti-corruption watchdog GRECO, have been actively involved and their contribution was crucial. But real political leverage was yielded only by the EU Commission.
And then, as a final note – where are the Polish cases?! Where are the preliminary references, building on the by-now famous judgment in case C-64/16, Associação Sindical dos Juízes Portugueses? If the Portuguese judges managed to elicit a preliminary ruling on a temporary reduction in remuneration and its consequences for the independence of the judiciary, then what is keeping the Polish courts from referring one of the many ‘court reform’ measures to the ECJ? Why did it take an Irish court to raise the issue at all in Luxembourg? Where are the applications to the European Court of Human Rights? Where are the cases before the Polish courts, with litigants claiming that, objectively speaking, the courts are no longer independent? And, while we’re at it, where are the demonstrations against the destruction of the rule of law since the big street protests of the summer of 2017 (see the picture)?
It is always easy to blame "Europe" for all the continent's ills. More and more politicians build a career on it. And of course, in this case (as in the case of Hungary, for that matter) one can certainly argue that "Europe" intervened too late and did too little. But we should not forget that the primary responsibility to secure human rights and the rule of law is at the domestic level. Europe can provide support and address violations, but at the end of the day its powers are not unlimited. Seen from that angle it is remarkable how many human rights lawyers have been pointing fingers at Brussels. It would have been helpful for the Commission – and for the Member States discussing the matter in the Council – if existing mechanisms had been used by Polish courts and Polish citizens too. Because new chapters in the history of European integration are best co-authored.
Photo: TRT world