By Britt L. Bolin
Poland’s drift towards illiberalism took another alarming turn in July as the right-wing government moved to more tightly control judicial appointments. Although President Andrzej Duda surprisingly vetoed two of the bills on July 24, this latest assault on the rule of law by the Law and Justice Party (PiS) presents a serious problem for the European Union. The PiS has taken Poland in an illiberal direction over its past two years in power, systematically dismantling the rule of law and democratic norms. Nationalist developments in Poland have exposed a crucial weakness in EU law, namely that there is little the European Union can officially do to stop Poland’s slide towards authoritarianism short of suspending Poland’s voting rights in European institutions. Considering the implications of the PiS’s ongoing push to limit judicial independence, the European Union needs to urgently consider other potential methods of ensuring the restoration of liberal democracy in Poland.
The vetoed bills directly attacked the integrity of Poland’s constitutional system. Passed by parliament in the middle of the night and approved by the Senate despite massive protests, they were a clear attempt by the government to eliminate potential rivals and judicial checks on its power. The first bill concerned the National Council of Judiciary, a body set up by the constitution to decide on the appointment and promotion of judges. It would have given the ruling party the power to select all but three of the 25 officials on the council. The second bill allowed the PiS to entirely gut the upper ranks of the Polish judiciary by unilaterally firing all judges on Poland’s top courts and replacing them with friendly new appointees. Taken together, these two bills would have ensured that the PiS would have little opposition from the courts to any future controversial legislation. Although blocked by President Duda, the PiS’s war on the judiciary is far from over. The third bill, which allows the government to appoint the heads of regular courts, still stands.
These moves by the PiS to curtail judicial independence are in direct defiance of the European Union’s previous warnings of serious consequences should the law be passed. After the PiS narrowly won Poland’s 2015 election and took power in Warsaw, the party immediately started to implement its illiberal vision of government. From packing the public broadcaster with party loyalists to rejecting the European Union’s 2015 plan to settle refugees in all EU member states, Poland has quickly become a headache for Brussels. The European Union has found itself standing by helplessly as the PiS pulls Poland towards authoritarianism.
If the current situation in Poland has demonstrated anything, it is the weakness of the European Union’s treaties for enforcing the rule of law in member states. The only official disciplinary procedure outlined in the EU’s treaties is Article 7 of the Lisbon Treaty, which concerns the “breach of EU values” by a member state. Under Article 7, an EU member’s voting rights can be suspended, but only by a unanimous decision of all other member states which is why it is regarded as the “nuclear option.” The current situation with Poland has demonstrated, however, that the Article 7 procedure is too slow and political, and the European Union clearly needs additional options for addressing the violation of democratic norms in its member states.
The European Union has four potential options, some with more immediate effects than others. The first is a German proposal to stop EU funds for countries that do not respect democratic principles. This would link EU cohesion funds for infrastructure and regional development, of which Poland is a large recipient, to upholding the rule of law. This proposal could potentially be implemented with immediate effect by the European Commission. A second effort with serious ramifications would involve ramping up diplomatic discussions with Poland, backed up with the threat of invoking Article 7 should significant changes not be made. The European Commission has already launched an infringement procedure against Poland and has given Poland one month to respond. Infringement proceedings are normally used against EU countries that have breached EU law. In the case of Poland, the European Commission launched proceedings on the basis of gender discrimination (differing retirement ages for male and female judges) as a way to protest against the new laws. This legal action could be used in lieu of triggering Article 7 and has given the EU a reprieve from the so-called nuclear option. Should Poland not change course, the one month time frame also gives the Commission time to secure the necessary support for an official warning or even a unanimous decision should Article 7 be triggered.
Beyond these immediate efforts, the European Union has two options for new procedures and safeguards to prevent future moves towards illiberalism by Poland or any other member state. This could involve a judicial procedure in the European court system to assess potential constitutional violations of EU treaties, for example, or an administrative process run by the European Commission focusing on upholding the rule of law. Belgium has proposed a mechanism for the periodic review of the rule of law in EU member states, which would ensure that all countries are scrutinized, not just those identified as problematic. These proposals would provide long-term solutions to the current problem and, given their administrative and technocratic nature, are unlikely to provoke immediate backlash from countries currently under scrutiny. Such mechanisms should have the power to enforce punishments on wayward member states that are effective but still short of suspending voting rights in European institutions.
The case of Poland sets a worrying precedent for how quickly the rule of law can be violated in an EU member state. The European Union urgently needs to come up with a better mechanism for addressing such cases in the future, or risk its lofty proclamations and commitment to the rule of law becoming an empty promise.
Britt L. Bolin is a Europe Fellow at Young Professionals in Foreign Policy (YPFP). Britt is also a doctoral candidate in political economy at the University of Mannheim, where she earned her MA in political science.