By Jacob Wilson
The Orwellian truism ‘Power corrupts and absolute power corrupts absolutely’ was witnessed throughout the Soviet Union communist rule of Eastern Europe, which was brought down in 1991.
The election of the Law and Justice Party (PiS) in October 2015, which for the first time in Poland’s democratic history secured a majority in both houses of parliament, has seen the country take steps toward a path reminiscent of Eastern Europe’s past.
Following the collapse of the Soviet Union, Poland was widely viewed as a successful Eastern European example of democratization and integration in the EU. It transitioned strongly toward a free market economy and is ranked the 6th largest economy in the EU. The freedom of Poland’s media has also consistently ranked in line with other liberal democracies by independent press freedom organisations over the years.
However, the PiS government’s legislative agenda over its few months in power has seen Poland shift from a secure liberal democracy toward the illiberal democratic model advocated by Viktor Orban. During the Christmas holiday period, the PiS government implemented two legislative changes, which are widely perceived to be interfering with democratic institutions and the rule of law.
Changes made to the constitutional court have raised the threshold for judges to make constitutional rulings to a 2/3 majority instead of a simple majority. Five judges appointed by the previous Civic Platform government were nullified and replaced by judges appointed by PiS. Alongside this, a new media law was imposed, which gives the government direct control of appointments to the national broadcaster. PiS ministers claimed the broadcaster was failing to promote national interests and had a clear liberal bias. It was argued government control was required to restore objectivity to the broadcaster.
These decisions have been widely condemned by independent media organisations and constitutional law experts.
While Poland’s legislative changes are perceived to conflict with European values, it is clear the EU is effectively powerless to act.
How the EU legal process works
According to Article 2 of the Treaty on European Union (TEU) member states are bound to respect: “human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”
Within the framework of the treaty, there is scope to impose strict sanctions on a member state for failing to meet these requirements. This is commonly referred to as the ‘nuclear option’ known as article 7 which states that a breach of EU values could result in a member state losing voting rights in the Council of Ministers. However, the Commission must go through a process and strict criteria have to be met.
The European Commission met on 13 January to discuss the state of the rule of law in Poland and have commenced a structured dialogue procedure.
This is a pre-article 7 procedure, consisting of three steps. First, the Commission assesses whether any indications of a systemic threat to the rule of law exist in Poland and offers its opinion. Next, the Commission makes a recommendation for Poland to resolve any threats to the rule of law, if any exist. If Poland fails to implement the Commission’s recommendation, grounds will exist to trigger article 7.
Two legal experts are divided on whether this process will lead to constructive outcomes.
According to constitutional law expert Dr Dimitry Kochenov, it is “impossible” to resolve the problem in Poland through the structured dialogue process.
“If a country is moving to authoritarianism, there is no incentive for it to engage with the Commission seriously and the Commission has very little leverage,” he said.
However, constitutional law lecturer Michiel Duchateau said the existence of a serious legal threat is often sufficient to keep member states in compliance.
“Soft measures and diplomacy can be effective (rather) than the use of legal measures,” he said.
If the structured dialogue procedure fails to satisfy the Commission through Article 7 it can choose to do two things. Under TEU 7.1 the Commission can send a proposal to the Council of Ministers to “determine if there is a clear risk of a serious breach of European values.” This would require the approval of the European Parliament and a 4/5 majority in the Council of Ministers and would simply act as a warning without attracting sanctions.
Alternatively, the Commission could seek to sanction an offending member state under TEU 7.2 by determining an “existence of a serious and persistent breach by a member state of European values.” This would require unanimity in the council. The relevant member state would be given an opportunity to submit observations to the council, but can’t participate in the vote. If the criteria are met, Poland could have its voting rights suspended from the council and lose influence over policy-making.
Mr Duchateau urged for a cautious approach regarding this course of action.
“As far as I understand the situation in Poland, sovereignty is very important to the country,” he said.
“Voting rights in the Council seem to be an important part of securing that sovereignty in the EU and losing them, even temporarily, would be quite a heavy sanction.”
Article 7 has never been triggered before and is viewed as a last resort measure.
Why Article 7 won’t work
The case of Hungary has shown that talking about stripping a member state of voting rights is much easier than acting on it.
Before Poland, Hungary under Viktor Orban began the process of implementing reforms consistent with illiberal democracy. Similarly, Hungary weakened the position of the courts and introduced legislation which influences both state and private media. There have also been concerns regarding human rights breaches in its treatment of refugees.
ALDE leader Guy Verhofstadt, in October 2015, called for parliament to commence article 7 procedures in response to Hungary approving the use of military force against refugees. However, parliament voted against this procedure.
In December 2015, a European parliament resolution was passed recommending the Commission take measures to strengthen the rule of law in Hungary.
While the Commission will undergo the pre-article 7 procedure with Poland, Hungary has declared that it will use its vote in the council to oppose stripping Poland of its voting rights. Due to the unanimity requirement, this will be enough to prevent sanctions.
Dr Kochenov said a new approach is required for the Commission to effectively enforce the rule of law.
“The Framework will not work, it is absolutely clear,” he said.
“It is always good to replace a vague and deeply politicised approach with a clear and transparent judicial one, but Article 7 does not allow for this.”
Numerous mechanism changes have been proposed to the EU such as lowering the voting threshold for article 7 sanctions and a judicial review of the European Court of Justice.
However, Dr Kocenhov said a change to the rule of law mechanism would require a treaty change, which would be problematic, as this requires unanimity among member states.
Do Other Options Exist?
As an alternative to article 7, the Commission has the option to initiate infringement actions against countries which fail to comply with EU obligations. This process would involve the Commission referring a country to the European Court of Justice to make a ruling. While this has been used with some success in the past, its effectiveness is limited.
For example, a Court of Justice ruling in 2011 overturned Hungary’s compulsory retirement legislation requiring judges to retire at the age of 60. This was not and could not be challenged by the EU on the grounds of ensuring the independence of the national judiciary and the rule of law because the EU has no legislative competency in national courts. Instead because the compulsory retirement of judges breached EU law prohibiting discrimination on the grounds of age, the European Court of Justice could intervene.
The circumstances which applied in Hungary don’t exist in Poland’s case, so it is doubtful that the Court of Justice can rule against Poland’s judiciary legislation.
New Enforcement Framework Needed
At a time where nationalist sentiment is on the rise, not just in the East, but throughout Europe, it is becoming increasingly clear that more effective safeguards are required to ensure the rule of law is properly respected.
It is true that both the Hungarian and Polish government were democratically elected on the basis of their nationalistic ideology, however the undermining of fundamental checks and balances are the essential first steps toward dictatorship. A permissive EU approach to these developments could potentially cause the situation to intensify.
“Hungary is the first example of backsliding, so Poland is not the first,” said Dr Kochenov.
“With two problematic countries around it is overwhelmingly clear that the EU has to move now.”
The EU won the Nobel Peace prize in 2012 for successfully promoting democracy and respect for human rights for six decades. Failing to establish an effective legal mechanism could run the risk of causing illiberal democracy to spread beyond Poland and Hungary and undermine EU success.
Article 7 was designed to be almost impossible to activate and the mere threat of stripping voting rights is unlikely to achieve any constructive progress in countries led by governments openly hostile to the EU and its fundamental values.