On Wednesday 19 July, the European Commission issued a clear threat to Poland to launch against it the procedure laid down in article 7 of the Treaty in response to the serious infringements of the rule of law it has observed in the country (see EUROPE 11829).
Noting that the recent measures presented by the Polish government in the judicial field have greatly amplified this threat to the rule of law in Poland, the First Vice-President of the Commission, Frans Timmermans, said that the executive was very close to triggering the article 7 procedure.
For now, the Commission has decided to hold a new discussion at the College of Commissioners on Wednesday 26 July, during which it may announce the launch of infringement proceedings, for instance on the basis of the anti-discrimination directive. It may also send Warsaw a third recommendation under the rule of law mechanism, which covers the 'dialogue' part preceding the article 7 phase.
It is through this recommendation that the European institution may set the Polish authorities a very clear deadline to modify or step back from the announced reform of the judicial system, on pain of the triggering of article 7.
Gathering sufficient support at the Council
On this procedure, Timmermans will also spend the next few weeks gathering a qualified majority of the Council so as to be able to trigger the procedure if required.
A 'General Affairs' Council is scheduled to be held in September, but the Council still needs to work out with the Estonian Presidency when another debate on Poland could be held at ministerial level. A similar debate was held on 16 May under the previous Maltese Presidency, during which the Commission was encouraged by the member states to maintain pressure on and dialogue with the Polish authorities (see EUROPE 11789).
On Wednesday, the European official detailed the concerns raised by the latest measures of the Polish government, but did not announce any formal decisions made by the Commission. Certain laws are still only at bill stage and the Polish President, Andrejz Duda, has himself intervened to ask the Polish government to modify certain texts.
The four following bills are of serious concern to the Commission, but also to the Council of Europe (see EUROPE 11832) and the European Parliament, the principal political groups of which, with the exception of the ECR group, of which the Polish party in power, PiS, is a member, have alerted President Tajani: - the law on the National Court Register; - the law on the National School of the Judiciary; - the law on the organisation of the ordinary courts, and; - the law on the Supreme Court. Three laws have been adopted by the Polish parliament and two are still awaiting the signature of the Polish President.
Timmermans explained that if these laws are implemented in their current form, they will have a major negative effect on the independence of the judiciary and will increase the systemic threat to the rule of law in Poland. He spoke out against a procedure that aims to place the entire judicial system under the remit of the political powers in Poland.
He said that the Polish situation is unprecedented and differs from the illiberal measures taken in Hungary, where there are also problems, he stressed (see EUROPE 11829). In Hungary, however, there is no infringement of the separation of powers, he explained.
Timmermans went on to say that he had written to the Polish Justice and Home Affairs Ministers on 13 July to ask them not to pursue these laws, but that both texts had been adopted by the Parliament on 15 July. He also deplored the fact that the ministers had not accepted his invitation to come to Brussels to discuss the legal bills.
The reforms on the Polish Constitutional Court which triggered the activation of the rule of law mechanism in January 2016 (see EUROPE 11467) mean that it is no longer possible to ensure an objective evaluation of reforms undertaken in the country's judicial system.
Towards infringement proceedings?
Next week, the European Commission may in any event launch infringement proceedings concerning the retirement age of judges, which has been revised downwards, but not equally between men and women, with women required to leave five years earlier than their male counterparts. These proceedings would be based on a European standard banning discrimination on the basis of sex.
The Commission is also looking into the possibility of launching infringement proceedings on the basis of the Charter of Fundamental Rights and on the nature of Polish national courts that may be considered European courts. The latter legal basis is more complicated to find, a source however explained.
The College may also already be in a position to state whether it is prepared to activate articles 7 and 1 of the Treaty, the latter provision concerning preventative measures. However, the Commission was still vague on this point on Wednesday.
Timmermans stressed that the aim is still the hold out a hand to the Polish government and to hold discussions with it to suspend the measures and thereby avoid any further escalation. The Commission Vice-President stressed that what is going on in Poland will affect the whole of the EU. He added that the Polish citizens themselves do not want a judicial system that is entirely controlled at political level. Moreover, mass demonstrations have been held in the country to condemn the initiative of the Polish governments.
Later that day, the European Commissioner for the single market, Elzbieta Bienkowska, said that the “climate of this debate would have a negative impact on budgetary discussions”. She referred in particular to the idea of making access to the cohesion funds conditional on compliance with EU values and decisions in the future, an idea promoted by Germany.
In Parliament, only the ECR group disapproves
The leader of the S&D in Parliament, Italy's Gianni Pittella, said that infringement proceedings were inevitable if the Polish government does not change its plans. His counterpart from the EPP group, Manfred Weber of Germany, said that the PiS party was jeopardising the fundamental values of the EU and that he stands alongside thousands of Polish people who took to the streets to demonstrate against the reforms. The chair of the Liberal group, Belgium's Guy Verhofstadt, welcomed the strong signal sent out by the Commission on Wednesday.
On Tuesday, an ECR group source told EUROPE that the Commission was entitled to ask the Polish authorities questions about compliance with the rule of law and to engage in dialogue with the member states. However, “it is not up to Parliament to give the member states of the EU its opinion”, the source added, explaining why the Conservative group had not backed the calls of the five other groups.
The Conservatives argue that the European Parliament's actions are purely political. Germany, for instance, has a system to select judges that seems very similar to the one under consideration in Poland and “we don't hear Manfred Weber asking the Commission to take action against Germany”, the source noted. (Original version in French by Solenn Paulic)