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20th Aug 2022

EU gives Poland more time to respect values

  • (Photo: European Commission)

The European Commission has given Poland more time to restore the independence of its constitutional court, or face the risk of sanctions.

The move also buys the EU executive more time to rally other EU institutions - the EU Council and the European Parliament - behind possible penalties against Poland.

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Commission vice president Frans Timmermans told a news conference on Wednesday (21 December) that he would present Poland with "additional recommendations" on how to protect rule of law in the country, on top of the ones already issued in July.

The commission first opened a probe in January, after the newly elected Law and Justice party (PiS) tried to stuff the constitutional court with loyal judges and passed laws making the court's work less efficient.

On Wednesday, Timmermans explained that the Polish government had recently passed three more laws that further paralyse the top court by changing the way its president is elected.

He was also worried about the appointment of a "so-called acting president" of the court.

"This [institution] is nowhere to be found in the Polish constitution. It should have been put before the constitutional court, who could judge whether this is compatible with the constitution. This did not happen," he said.

"We have a lot of questions," he added, saying it would only be "fair" to give Poland a chance to answer.

"Perhaps if we now send recommendations on the new legislation, it may lead to the Polish government reconsidering its position," he said.

"I can't say my experience over the last year justifies optimism, but I will try," he added.

The commissioner said he still believed there were "possibilities of finding solutions even in the framework of the new laws", but that he would use the coming two months to build up political support in case it showed necessary to impose sanctions on Poland.

"We have to know whether the institutions want to do on this, test the waters," he said, referring to the Council, representing member states, and the EU parliament.

"Problem solved"

It is the first time that Timmermans, who is in charge of the rule of law in the EU, publicly considered the possibility of triggering article 7 of the EU treaty - the formal mechanism to find a state in serious breach of the bloc's values, which could lead to sanctions such as losing voting rights in the Council.

Replying to the commission's announcement, the Polish government's spokesman, Rafal Bochenek, said that the problem with the constitutional court had been solved.

"Three laws regulating the court were passed. A new president was appointed. Problems are a thing of the past."

"We don't see a reason why the European Commission should still deal with the issue," he told Polish press agency PAP.

The commission's decision to stop short of launching the sanction procedure was criticised in some quarters.

Natacha Kazatchkine, from the Open Society European Policy Institute, regretted that it had "yet again failed to take decisive action against deliberate and severe undermining of the rule of law in Europe."

"It may be buying time, but in doing so it is losing its already shaky credibility by the day," she said.

Laurent Pech, a professor of European law at Middlesex University, told EUobserver that after Poland failed to address the commission's July set of recommendations, "one would have expected the commission to trigger article 7 paragraph 1, which doesn't necessarily mean sanctions."

"Article 7 also has a pre-emptive role. It can be used to send a ‘warning signal to an offending’ country before the risk of a serious breach of EU values materialises."

Would the commission continue to hesitate, the article can also be triggered by the council or the EU parliament.

Last week, during a parliamentary debate, a number of MEPs said they supported that the article should be invoked.

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