The European Commission has triggered the so-called “nuclear option” against Poland for undermining the rule of law, the commission’s Vice-President Frans Timmermans said on December 20.
The decision marks a new low in the prolonged spat between Warsaw’s populist Law and Justice (PiS) government and the commission. It will also likely isolate Poland further in the bloc, shortly before negotiations on the EU’s next budget kick off. Poland is a major recipient of funding from EU.
Poland’s state broadcaster TVP Info, a staunchly pro-PiS news channel, has suggested that the triggering of the “nuclear option” – the moniker of Article 7 of the EU’s Treaty of Lisbon – is led by France and Germany in retaliation against a sovereign government that has stood up to EU’s powers.
The “nuclear option” might lead to stripping Poland of its voting rights in the EU. The commission has now initiated the first step in the procedure, which is to ask other member states to “determine that there is a clear risk of a serious breach by a member state” of the values enshrined in the Lisbon Treaty. It will take a majority of four fifths in the vote in the Council of the EU early next year for the EU to state officially that such a risk exists.
“The union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities,” the treaty states.
Poland has arguably violated the rule of law principle by pushing through a reform of the judiciary that has been criticised for putting the Polish courts under the control of the PiS. That, in turn, could lead to compromising human rights such as the right to fair trial, it is feared.
The European Commission has been probing the issue of the rule of law in Poland since early 2016, following PiS’ takeover of the country’s Constitutional Tribunal, which was completed in December last year. That was the ruling party’s first successful attempt to exert control over the judiciary branch.
PiS ignored several warnings and recommendations from the commission, Timmermans told a news conference during which he announced the decision. “The situation has deteriorated,” he said, indicating Poland avoided dialogue with the commission.
“It is with a heavy heart that we have activated Article 7. But the facts leave us with no choice. We have no other option. This is not just about Poland, it is about the EU as a whole,” Timmermans said.
The commission has issued another recommendation on December 20, asking Poland to backtrack on the judiciary reforms. That is most likely going to fail to elicit a response other than snub.
PiS has consistently maintained that reforms are necessary to clamp down on the alleged corporatism of the judiciary and to make the branch serve people better.
The triggering of the Article 7 is an early test for Poland’s new Prime Minister Mateusz Morawiecki who was picked by PiS allegedly in attempt to improve Poland’s standing in the EU.
That appeared to have had little impact on Timmermans who said on December 20 that he saw no difference between Morawiecki and his predecessor Beata Szydlo in how they approached the issue of the rule of law, Polish radio RMF FM reported ahead of Timmermans’ presser.
The commission seems unlikely to go through the entire Article 7 procedure, which ends with suspension of voting rights. For that to happen, member states must be unanimous. Poland’s ally Hungary has said it would stand by Poland. Some other states have hinted at opposing the ultimate sanction against Poland as well.
In a separate, but related, move, the commission also decided to take Poland to the Court of Justice of the EU for one of the laws reforming judiciary, the bill on the organisation of common courts. The commission alleges that the bill is discriminatory on the basis of gender due to the introduction of a different retirement age for female judges and male judges.
The contested bill is one of the main laws with which PiS is reforming the judiciary. It also was one of two bills Polish President Andrzej Duda vetoed in July, pushing the government to rework them. Despite warnings that the recently passed new versions of the reform bills do not address Duda’s concerns from July, the president is widely expected to sign off on them.
In response to the commission, Poland’s foreign ministry said it regretted the EU executive’s initiating Article 7, which is “political”. In a barrage of responses on Twitter, PiS officials blamed the Polish opposition, Germany, and the EU for triggering of the procedure in retaliation for Poland's refusing to take part in the migrant relocation scheme or for demanding war reparations from Germany.