The EU is on the brink of taking the nuclear option of stripping Poland of its voting rights in Brussels in response to plans by its rightwing government to “abolish” the independence of the country’s judiciary.
Frans Timmermans, the first vice-president of the European commission, accused Warsaw of seeking to put judges under full political control as he warned that the EU was “very close” to triggering article 7, a never-before-used sanction in the treaties that allows a member state’s voting rights in the council of ministers to be suspended.
Poland’s ruling rightwing Law and Justice party (PiS) has been in almost constant conflict with the European commission since it was elected. In recent weeks the Polish government has proposed a series of reforms that would give ministers power over the appointment of judges and members of the country’s supreme court.
The first step in the EU triggering article 7 is an assessment of whether there has been a breach of fundamental rights, which could be launched as early as next week on the recommendation of the commission. “What we decide next week depends on developments also this week,” Timmermans said, as he called for fresh dialogue with Warsaw.
Should a breach of fundamental rights be found, a motion to suspend Poland’s voting rights would then need to win the support of member states under the EU’s system of qualified majority voting. Two-thirds of the European parliament would also need to give its consent.
Timmermans told reporters in Brussels that the recent proposal from the Polish government to increase political control of the judiciary was a grave threat to the fundamental values of the EU.
“These laws considerably increase the systemic threat to the rule of law in Poland. Each individual law, if adopted, would seriously erode the independence of the Polish judiciary. Collectively they would abolish any remaining judicial independence and put the judiciary under full political control of the government.
Q&AWhy does the Polish government want to appoint judges?
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The attempt by Poland's Law and Justice party to take control of the judicial system should be seen as part of a wider campaign to dismantle democratic checks and balances on the government’s actions, from its takeover of state media to its capture of the country’s constitutional tribunal.
Jarosław Kaczyński, PiS’s leader, has developed a theory known in Poland as ‘impossibilism’, the idea that no serious reform of Polish society and institutions is possible due to these checks and balances, and what he describes as the vested interests of liberal elites and foreigners intent on exploiting the country.
“Under these reforms judges will serve at the pleasure of political leaders, and be dependent upon them, from their appointment to their pension.”
The commissioner added: “I think every citizen wants to have, if they need to, a day in court without having to say, ‘Hmm, is this judge going to get a call from a minister telling him what to do?’.”
Timmermans said he was confident he would have the support of member states should he recommend the triggering of article 7.
In Warsaw, Rafał Trzaskowski, an MP with the opposition Civic Platform party and a former Europe minister, said Poland was being pushed to the margins of the EU by its authoritarian government.
He said: “It’s absolutely clear that patience is running out, not only in the European commission, but also in many European capitals.
“The initiation of article 7 would be unprecedented, and it would show quite clearly how marginalised the current government is in the European Union.”
Timmermans, a former Dutch minister who has been the subject of personal attacks by Polish ministers over his tough stance with Poland in recent months, said he had written earlier this month to Warsaw about his concerns, but appeals for the proposed laws not to be pursued had been ignored. Two of the four pieces of legislation in question have since been adopted by parliament.
Timmermans said any concerns that triggering article 7 would push Poland to follow the UK out of the union would not be an obstacle to the EU taking action. He insisted there was “no way” the Polish people would ever choose to leave the union.
The commissioner also called on the Polish government to respect the right of journalists to do their job, after a Brussels-based TV journalist was accused by state-controlled Polish TV of asking politically motivated questions with intent “to harm Poland” after she sought information from the European commission about its intentions with regard to protecting the rule of law.
“There are lot of emotions around this,” he said. “A lot of personal attacks, people’s personal credibility or integrity has been put to discussion, mine, other people’s. I can take it. They should take their best shot. But what should not be happening is that journalists should be intimidated.”
Andrzej Duda, Poland’s PiS-aligned president, had sought to calm the situation on Tuesday evening, as crowds gathered outside the presidential palace for a candlelit vigil to demand he veto the supreme court legislation.
In a televised address, he said he would only sign the supreme court bill if legislation passed last week giving parliament control of the National Council of the Judiciary (KRS), a hitherto independent body responsible for appointing Polish judges, were amended.
Under Duda’s proposal, appointments to the KRS would require a three-fifths majority in parliament, rather than a simple majority as contained in the present legislation, meaning that as parliament is presently constituted, Law and Justice would not be able to appoint judges by itself.
“The judiciary is a very serious issue. It needs to be reformed – but wisely,” he said, arguing that his aim was “to avoid accusations that the KRS … is working under a political dictate.”
However, Timmermans suggested that the president had not gone far enough. Under Duda’s proposal a coalition of Law and Justice and affiliated rightwing parties would still be able to push through appointments to the body. The supreme court legislation before parliament envisages “silent consent” for judicial appointments should the KRS not express a view within 14 days, meaning that a paralysed council would still give the justice minister the power of appointment over the supreme court.
“Duda’s proposal does not change the essential mechanisms of the three combined legal acts, which grant the government political control over the judiciary,” said Mikołaj Pietrzak, chair of the Warsaw Bar Association. “It’s not constitutional, and it’s not satisfactory. It’s just smoke and mirrors.”
The European commission is also preparing infringement proceedings against Poland for breaches in EU law. Asked whether Hungary – whose rightwing prime minister, Viktor Orbán, has also repeatedly clashed with the commission – could also be in line for the ultimate sanction, Timmermans said the nature of Poland’s breaches was of a far more serious nature.
