After two years of uneasiness by the European Union about the state of affairs in Poland and the governance of the country by the Law and Justice party and President Andrzej Duda, the EU has pulled the trigger on Article 7. But as is the case with firearms, you may pull the trigger, but the bullet might not even exit the barrel.
The decision to begin the process that will lead to the activation of Article 7 was announced on December 20th, 2017. A tweet by Frans Timmermans, the Vice President of the European Commission, set the foreboding tone.
“It is with a heavy heart that we have activated Article 7(1). 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. We continue to hope that we can enter into a more fruitful dialogue.”
Article 7 is the so-called nuclear option. Its purpose is to rebuke Poland and it might end up suspending its voting rights. If Article 7 is eventually implemented, it will be the first time.
It is widely-believed that the decision was taken in order to punish Poland for its rejection of the EU refugee relocation scheme. However, it was triggered by judicial reforms that the Law and Justice party, and the country’s de facto leader Jarosław Kaczyński, have pushed over the last two years. The reforms will force out 83 judges and will give the government the right to choose who will replace them. President Duda has previously blocked such reforms, only to present his own version and defend the scheme as giving an end to “communism inside the Polish judiciary.”
Not only does this move defy the principle of the independence of justice, it also amounts to a power grab by the Law and Justice Party. Among the judges that will be affected by the reform are those of the Constitutional Tribunal, that checks the legality of government decisions, and the Supreme Court, whose duties include confirming election results. Needles to say, those changes go against EU rules about separation of powers.
It will not be easy for the EU to make good on its threats, though. 22 member states out of 28 will have to deem that Poland’s reforms are a direct threat for the rule of law in order for the process to be initialized. That will result in a formal warning. The next step is a broad array of sanctions, up to the suspension of voting rights. This will require a unanimous vote of 27 members, which is dubious at best.
European Union officials have stated that the 22 votes needed for the formal warning are already in place. The tricky part is achieving unanimity for the sanctions. Hungary has stated that it will not support such a move, while other Visegrad members’ votes are also uncertain. The Visegrad Group, the political alliance of Poland, Hungary, Slovakia and the Czech Republic, has a history of challenging EU authorities, with its defiant stance during the refugee crisis and its tendency for populist and illiberal politics.
Regardless of any personal opinions on the Polish government or the European authorities’ interventionism, EU membership is strictly conditional on the rule of law and a liberal democratic rule. If it wants to survive through its many problems and crises, these are principles that it cannot afford to ignore.
Featured image of the Palace of Europe courtesy of Wikipedia