On Wednesday 20 December, the European Commission resolved to trigger the article 7 procedure of the Treaty of the EU against Poland, concluding, after two years of dialogue leading to no result, that there was a clear risk of serious violation of the rule of law in the country.
“Our concerns have grown worse. In the space of two years, a considerable number of laws have been adopted - thirteen in all - that seriously jeopardise the independence of the judiciary and the separation of powers in Poland”, the Vice-President of the European Commission, Frans Timmermans, told the media. “It is with a heavy heart that we have decided to introduce article 7.1; but the facts leave us no choice”, he explained. According to a Commission source, none of the Commissioners took position against the measure during the meeting of the College.
When asked about the decision to trigger the article now, the Commission Vice-President explained that in July, he announced that the adoption of the law on the Supreme Court would be a reason to trigger it. On 8 December, the lower house of the Polish Parliament adopted law bills modifying the composition and functioning of the National Court Register (KRS) and Supreme Court (see EUROPE 11922). The Polish President, Andrzej Duda, may sign these laws off before the end of the week.
Timmermans denied that triggering article 7 was the Commission’s “nuclear option”, describing it, like the previous procedures, as an attempt to initiate dialogue to resolve the situation.
Under the first phase of this article 7 procedure, the Commission will make a proposal to the Council of the EU to note the existence of a clear risk of a serious violation of the values of the EU. This requires the approval of four fifths of the Council, which equates to 22 member states. Addressing the press, Timmermans expressed confidence, explaining that during discussions on Poland at the ‘General Affairs’ Council of May (see EUROPE 11789) and September (see EUROPE 11869), the Commission had received the very broad support of the member states.
The Parliament must also give its agreement, by a two-thirds majority of its members. It is also expected to approve the Commission’s approach. In mid-November, a very large majority of MEPs called upon the Commission to trigger this article (see EUROPE 11905).
“What we are asking the Council and Parliament to do is what the Commission has been doing over the last two years: analyse the situation and decide whether, in the opinion of these other two institutions, there is a clear risk of a serious breach of the primacy of the law. If this is the position of the other institutions, they may then send recommendations to the Polish government”, Timmermans explained.
As well as triggering article 7, the Commission has decided to refer Poland to the Court of Justice of the EU concerning the non-compliance of the law on the organisation of the Polish common law jurisdictions. It is concerned at possible discrimination based on gender due to the introduction of a different retirement age for judges for women (60) and men (65), but also as the Polish justice minister will have discretionary powers to extend the mandate of judges who have reached retirement age.
The Commission has also issued a rule of law recommendation for the fourth time, following the ones issued in July 2016 (see EUROPE 11602), December 2016 (see EUROPE 11694) and July 2017 (see EUROPE 11832), setting out the measures the Polish authorities should take to remedy the current situation. Timmermans has given the authorities three months to comply with the recommendations. If it does, the Commission is inclined, working closely with the European Parliament and the Council, to review its reasoned proposal.
The President of the Commission, Jean-Claude Juncker, has invited the new Polish Prime Minister, Mateusz Morawiecki, to meet him in Brussels on Tuesday, 9 January 2018. In his invitation letter, he explained that sincere dialogue is the only way to overcome current differences.
Warsaw expresses regret as a political decision
The meeting may be tense. The Polish Prime Minister took to Twitter to state that “Poland is as devoted to the rule of law as the rest of the EU” and that “current judiciary reform is deeply needed”. “The dialogue between the Commission and Warsaw needs to be both open and honest”, he added, stressing that he believes Poland’s sovereignty and the idea of a United Europe can be reconciled.
For his part, the Polish Foreign Ministry expressed regret at the Commission’s decision, describing it as basically political and not legal. Stressing that it was always open to discussion, the Polish Ministry said that the triggering of article 7 would be a pointless hindrance to bilateral relations. It hopes that the launch of the procedure will not interfere with the cases underway before the Court and that it could not accept unilateral and harmful opinions addressed to Poland.
Satisfaction at the European Parliament
The main political groups at the European Parliament welcomed the Commission’s decision. “The EPP group fully supports this decision (…). There is a clear risk of a serious violation of the rule of law by the Polish government”, stressed the group’s chair, Manfred Weber of Germany, who considers that within the EU, “the rule of law is not negotiable”. Deeply regretting the fact that the Polish government is departing from our common values, he pledged that the EP would defend them.
The chair of the S&D, Gianni Pittella, does not feel that it is a political decision, but a necessary stage on the basis of the treaties, following two years of openness and invitations to dialogue sent by the Commission to the Polish government, “which have unfortunately fallen on deaf ears”. The Commission has no choice but to launch article 7, he said, urging the Polish government to “return to the negotiating table”.
“It was high time to open the article 7 procedure against Poland”, said the co-chairs of the Greens/EFA group, Germany’s Ska Keller and Philippe Lamberts of Belgium, who feel that the European institutions have been patient for far too long. “The measure is not intended to target the people of Poland, but the government, which is not respecting the separation of powers in the country”, they said.
The Italian deputy minister for European affairs, Sandro Gozi, also expressed his full support for the Commission, reiterating that the EU was above all a community of values based on the rule of law. (Original version in French by Camille-Cerise Gessant)