Poland recently traversed parliamentary elections on October 15, 2023. Presently, the leadership of the prospective government remains uncertain, casting a shadow over whether the Law and Justice party (also referred to as “PiS”) or the Civic Coalition party, led by Donald Tusk, will assume control. [1] The impending administration holds the reins in shaping Poland's destiny, a trajectory profoundly shaped under the preceding PiS government. Transformations, such as the abortion ban [2] and reforms impacting judicial autonomy [3], have etched Poland's political terrain during this period. This paper delves into the European Union's responses to Poland's political governance under the PiS administration.
EU values
Comprehending the EU's interventions mandates a grasp of its foundational values. Article 2 of the Treaty on European Union [4] delineates these values, embracing respect for human dignity, freedom, democracy, equality, the rule of law, and human rights. These principles serve as benchmarks for new Member State entry [5]. It is pivotal to recognize the EU's pledge to uphold the equality of Member States and their national identities, rooted in distinctive political and constitutional frameworks. Moreover, while the treaties enable Member States' exit [6], they lack provisions for the forced expulsion of a Member State, prompting questions about the EU's response to unfolding events in Poland.
Legal instruments
Addressing such issues often involves utilizing enforcement mechanisms, notably through infringement proceedings detailed in Article 258 of the Treaty on the Functioning of the European Union [7]. Noteworthy precedents, like the Hungary case [8], centered on the forced retirement of judges, framed as age discrimination, spotlighting the conventional application of this method.
The European Commission, committed to upholding EU values, adopts a strategic approach. Rather than directly accusing Member States of violating overarching values, the Commission navigates precise violations within EU law frameworks. This involves citing specific articles, such as Article 19.1 (2nd paragraph) of TEU, or invoking Charter rights, showcasing a nuanced shift away from heavy reliance on Article 258 of the TFEU. This nuanced strategy targets specific legal grounds to address potential transgressions by Member States.
CJEU
The Court of Justice of the European Union [9] plays a vital role in addressing potential contradictions to EU values. The effectiveness of this process hinges on the collaboration between national judiciaries and the CJEU. National judges initiating preliminary reference procedures contribute to a collaborative dialogue, ensuring a consistent application and interpretation of EU legal principles across member states.
Art. 259 TFEU
The activation of Article 259 of the TFEU, allowing one Member State to initiate legal action against another for an alleged breach of EU law, is a rare yet politically charged mechanism. An example is the Dutch Parliament's resolution in December 2020, compelling its government to invoke Article 259 against Poland, citing violations of EU values. [10] This mechanism highlights political sensitivity and infrequent use.
Regulation 2020/2092
Regulation 2020/2092 [11] introduces a substantial mechanism. It allows repercussions for a Member State found in violation of the rule of law, potentially losing access to EU structural funds. The Commission triggers this process, with the Council making the final decision via a qualified majority vote. The breach must impact the EU budget in a sufficiently direct way. However, challenges arose when Poland and Hungary contested the perceived vagueness of the rule of law concept before the CJEU.
In landmark decisions [12] [13] (C-156,157/21), the CJEU asserted a shared meaning of the rule of law among all Member States. Following this, Regulation 2020/2092 was activated against Hungary, proposing a reduction of one-third of cohesion funds, amounting to 7.5 billion euros, citing concerns related to corruption and public procurement practices. Hungary responded by demonstrating cooperation, proposing reforms to address the issues. [14]
Article 7 TEU
Article 7 of the TEU empowers the Council and the European Council to respond to violations of fundamental values outlined in Article 2 of the TEU by a Member State. This response can take the form of either a warning (Article 7.1) or sanctions through a sanctioning mechanism (Article 7.2; 7.3). It represents the most robust intervention available to uphold EU values. The decision-making process lies at the discretion of either the Commission or the Parliament, allowing a nuanced approach to instances where core EU values are perceived to be at risk.
The Preventive Mechanism (Article 7.1 TEU) involves a warning procedure addressing potential breaches of Article 2 TEU. The EU Parliament, the Commission, or one-third of the Member States adopt a reasoned proposal. The Council determines, with a 4/5 majority, the existence of a clear risk of a serious breach of Article 2 TEU. In contrast, the Sanctioning Mechanism (Art. 7.2 TEU) involves a reasoned proposal by one-third of the Member States or the Commission. The European Council, excluding the Member State under scrutiny, determines, with unanimous agreement, the presence of a serious and persistent breach of Article 2 TEU. The Council, by a qualified majority, is authorized to impose sanctions, potentially including the suspension of the Member State's voting rights in the Council. Expulsion of the Member State falls outside the scope of these sanctions, and all other EU obligations persist for the Member State in question.
The EU's response to the crisis in Poland unfolds through a comprehensive strategy. In infringement procedures, pivotal cases addressing the independence of the Supreme Court [15], ordinary courts [16], and disciplinary measures [17] have been prominent. The legal basis lies in the invocation of Article 19.1 of the TEU. Despite Poland's unsuccessful attempt to base claims on Art 4(2) TEU, the CJEU has predominantly aligned with the European Commission's positions.
Rule of Law Framework
As part of a broader strategy, the EU implements a Rule of Law Mechanism, issuing recommendations and opinions. [18] Unfortunately, Poland has often disregarded these, reflecting the intricate dynamics in the effectiveness of such mechanisms to bring about desired changes in the rule of law situation.
In the realm of Rule of Law Framework remedies, the EU employs various measures. A Rule of Law Opinion issued on December 20, 2017, complemented by recommendations on July 27, 2016, December 21, 2016, and July 27, 2017, forms part of broader efforts to address rule of law concerns in Poland. [19]
Activation of Article 7 TFEU
A significant development came with the activation of Article 7(1) of the TEU by the Commission on December 20, 2017. The Commission alleged that Poland was violating its own laws, focusing on aspects like ensuring the publicity and enforcement of Constitutional Court rulings and safeguarding judicial independence and impartiality. Poland chose not to be heard during this process, introducing interruptions in the dialogue. While hearings have been conducted by the Council as part of this activation, a final decision is pending, adding complexity to the ongoing response. [20]
As the text shows, this comprehensive and dynamic strategy underlines the EU's resolute position in addressing and correcting the rule of law problems in Poland, but not only. Whether this strategy will be needed after the new government takes office remains to be seen.
Suggested citation: Forejtar, Jan, The European Union's Responses to Poland's Political Landscape, CHR - Student Blog, 26/11/2023, https://www.chrprfcuni.com/post/the-european-union-s-responses-to-poland-s-political-landscape
[1] Cienski J, ‘Poland Election Results: Opposition Secures Win, Final Count Shows’ (POLITICO 17 October 2023) <https://www.politico.eu/article/poland-election-results-opposition-donald-tusk-wins-final-count-civic-platform-pis/> accessed 19 November 2023.
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