On Wednesday 22 February, the First Vice President of the European Commission, Frans Timmermans, will inform the College of Commissioners about the response sent by Poland on Monday evening 20 February regarding the recommendations communicated by the Commission at the end of 2016 on the rule of law in Poland (see EUROPE 11729).
On Tuesday, the European Commission said that Wednesday would still be too early to make a decision on what procedure should be opened against the Polish authorities. It is, however, already carefully analysing the response of the Polish authorities sent to it. According to Bloomberg, the Minister for Foreign Affairs, Witold Waszczykowski, said on Monday that the controversy was now over.
The instruments the Commission now has to take action, if it is still not satisfied with the response from Warsaw, remain very limited. In December, the Commission had already begun the second phase of the “rule of law” mechanism and sent additional recommendations to Poland. With this stage activated, the next step would, in theory, be activating Article 7 of the EU Treaty, which ultimately includes the possibility of penalising Poland by way of a temporary suspension of voting rights at the Council. In December 2016, however, one European source had already indicated that the objective was to avoid this dilemma.
The Commission is also aware that it would require strong support from the Council to support the launch of the procedure included in Article 7 of the treaty. Hungary has already confirmed that it would oppose this approach. With just a few weeks to go until the 60th anniversary celebrations of the Treaty of Rome and the launch of the United Kingdom’s divorce from the EU, a decision based on article 7 against a member state appears unrealistic. At Tuesday lunchtime, one source indicated “the option of continuing the dialogue still remains”.
In addition to the heated discussions in Munich last week with Minister Witold Waszczykowski (see EUROPE 11729), Mr Timmermans called on other EU member states “to support Brussels” in this case involving Polish reforms of the Constitutional Court. He informed Reuters that, “It is clear that the Commission cannot do it on its own” and added, “the member states and Commission must show solidarity. Everyone has to assume their respective responsibilities”.
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In a statement published on Monday, Mr Waszczykowski asserted that, “The consolidation of the democratic rule of law in Poland, including the introduction of strong reasons for enhancing the way in which the Constitutional Court functions, is the Polish authorities’ primary objective”.
In its response, Poland provided concrete explanations regarding the objections raised by the European Commission. It believes that the amendments recently adopted by Parliament regarding the functioning of the Constitutional Court, particularly the law relating to the organisation and procedures at the Court from 30 November 2016, the law on the legal status of judges at the Constitutional Court from 30 November 2016 and the law of 13 December 2016 on the regulations for applying these two laws comply with European standards on the functioning of constitutional courts.
In the Ministers’ written explanation, he explained that these two laws provide a general and permanent regulation for the system and functioning of the Constitutional Court by taking into account a certain number of the recommendations formulated by the Venice Commission concerning Poland, “We particularly highlighted the fact that the appointment of a new President of the Constitutional Court by the President of the Republic of Poland on 21 December 2016 and the entry into force of the new above-mentioned legislative regulation have created the required conditions for enabling the Constitutional Court to function normally”.
Poland is hoping that all legislation from the Constitutional Court will comply with the law applicable. It is calling for an honest dialogue with the European institutions. Furthermore, according to Mr Waszczykowski, the recent comments by Mr Timmermans, “in which he calls on the other member states to form a common front with the European Commission against Poland, constitute a blatant violation of these principles” and would be “politically motivated” and aimed at “stigmatising” a member state. (Original version in French by Solenn Paulic)