EU Commission sets red lines for Poland on Article 7

The commission also set a red line for Poland: if it decides to fire any of the Supreme Court judges, the EU executive would trigger the Article 7 sanctions procedure immediately.

Poland’s president, Andrzej Duda, said earlier in the week that he would veto the law that would require supreme court judges to step down and allow the government to appoint new ones.

Duda also vetoed another law, out of the four, that raised concerns in the commission: the bill giving the parliamentary majority the right to name members of the National Council of the Judiciary, which nominates judges.

But Timmermans hinted that the commission is not impressed: “This past week some things have changed in Poland, and some things have not,” he told reporters on Wednesday.

“The current reforms significantly increase the systemic threat to the rule of law,” Timmermans added.

The commission is awaiting new drafts on the issue of the supreme court, but said that “any measure” taken to dismiss or fire judges in the meantime would entail launching Article 7.

“If such action is taken, the commission is ready to immediately launch the Article 7.1 procedure,” the vice-president said, referring to the first phase of the process - establishing the “clear risk of a serious breach” of EU values.

In its new, third set of recommendations to Poland, the commission says that the judicial reform "amplifies the systemic threat to the rule of law" already identified in the rule of law procedure that started last January.

The so-called rule of law procedure, first used in the case of Poland, deals with systematic threats that individual infringement probes cannot tackle.

Under this procedure, the commission has already sent two rounds of recommendations to Poland. However, the country has failed to address the concerns in those recommendations and dismissed them as political interference.

The new recommendations build on the earlier versions and concern the lack of an independent and legitimate constitutional review in Poland and the four new laws that have become part of a judicial reform and threaten to undermine the independence of the judiciary.

This time, the commission has given the Polish authorities one month to address the concerns.

Timmermans has not set out any sort of sanctions if Poland does not respond to the commission’s recommendations, saying the EU executive will decide on the next steps once it has received a reply.

No reply, or an insufficient reply that fails to address the commission concerns on the ongoing judicial reform will mean that the rule of law mechanism has been “exhausted” and the Article 7 procedure can be initiated, an EU official said.

“If the Polish government goes ahead with undermining the independence of the judiciary and the rule of law in Poland, we will have no other choice than to trigger Article 7,” commission president Jean-Claude Juncker said in a statement.

Timmermans said that the commission is open to dialogue and asks Warsaw to put the controversial laws on hold and engage.

The Dutch commissioner also said he would brief member states in the Council of the EU, in September or October, on the situation in Poland.

To launch Article 7 upon the commission's initiative, 22 out of the 28 EU member states would need to agree.

Legal probe ASAP

In a separate action, the EU executive has also authorised Timmermans to launch an infringement procedure. This legal probe would look into the legislation on ordinary courts, signed by president Duda on Tuesday, as soon as the law has been officially published.

The law is giving the justice minister the power to hire and fire senior judges.

The legal basis used by the commission will be EU rules on gender discrimination, due to introduction of a different retirement age for female and male judges.

In the meantime, dialogue with Warsaw will remain difficult.

Days of protests in Poland led to president Duda halting the judicial reform. His move was unexpected, as he is a former member of the ruling Law and Justice party (PiS), and seen by many as an ally of party leader Jaroslaw Kaczynski.

However, prime minister Beata Szydlo vowed this week to press ahead with the reforms, to clamp down on “unaccountable” judges.