Tuesday

22nd Jan 2019

Analysis

EU still shy of 'nuclear option' on values

  • Polish PM Beata Szydlo. The EU commission says it has not been able to find solutions with the Polish government. (Photo: Polish PM office)

Rule of law is one of the fundamental values on which the European Union is founded.

But the European Commission - the “guardian of the EU Treaties” - has struggled to protect it in situations where a systemic threat was detected in a member state.

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  • Warsaw. "Why Poland and not Hungary, France or Lithuania?" asks MEP Sophie in't Veld. (Photo: Bogusz Bilewski)

In January, the EU executive launched a unique investigation into the rule of law in Poland, using for the first time a mechanism set up in 2014 and known as the rule-of-law framework.

On Wednesday (1 June), the college of commissioners adopted an opinion that will be sent to Poland's prime minister Beata Szydlo.

”Despite our best efforts, it has not been able to find solutions to issues at stake”, said the commission's vice-president Frans Timmermans.

Poland should address the commission’s concerns within a ”reasonable time”. Otherwise, the commission can issue recommendations, marking the second of three steps in the rule of law procedure.

”I still see us in a process of dialogue”, Timmermans told journalists.

The Polish situation is, for some, linked to the commission’s troubled past with Hungary.

”The commission’s actions with regard to Warsaw must be understood in the light of its past dealings with Budapest,” said Laurent Pech, a professor of European law at Middlesex University in London.

Having failed to prevent Hungary from moving toward an “illiberal state” since Viktor Orban was elected PM in 2010, the commission should be commended for taking a tougher stand on Poland, he said.

"Adopting the rule of law framework in 2014 showed that the commission finally understood the serious, if not existential, threat posed by the unprecedented solidification of illiberal, not to say quasi-authoritarian regimes, within the EU", the Middlesex University scholar said.

The Polish government has not so far reversed any of the laws that triggered the commission’s concerns in January: reform of the constitutional court that the court has said is unconstitutional and reform of public media that has raised questions on freedom of expression.

A weak debate

After adopting its opinion on Wednesday, the commission said it is ready to take further steps if needed. But Pech doubted that further EU scrutiny will deliver any meaningful improvements from the point of view of the rule of law.

”The 2014 framework is based on a questionable presumption that countries who deliberately implement programmes breaching EU values can be socialised back into order. In this particular context, any hope to solve problems on the basis of a discursive method is bound to fail or produce suboptimal face-saving deals,” he said.

Polish authorities have indeed shown little cooperative spirit.

The leader of the ruling Law and Justice party (PiS), Jaroslaw Kaczynski, said on Monday (30 May) that the procedure was "made up" and threatened to challenge it in the EU Court of Justice.

Prime minister Beata Szydlo said in January that the investigation could not lead to sanctions. She even hinted that Timmermans was biased because he had received a medal from former Polish president Bronislaw Komorowski, representing a rival party.

Poland's minister of justice, Zbigniew Ziobro, likened the probe to Nazi Germany’s occupation of Poland.

’Nuclear opinion’

The EU has other legal means to act forcefully when a member state is breaching fundamental values.

Article 7 of the EU treaty states that EU countries must respect common principles, such as the rule of law. A country that is found to be seriously breaching those values risks sanctions and even the suspension of voting rights in the EU Council.

The clause has never been triggered.

”The article was labelled the 'nuclear option' by the commission’s former president Jose Manuel Barroso in his 2012 state of the EU address,” Pech noted.

”With respect, this label may be viewed as both unhelpful and misleading as it has undermined the dissuasive nature of Article 7 and justified inaction whereas there is nothing ‘nuclear’ about stating the existence of a risk of serious breach and adopting recommendations to address the situation,” he said.

EU leaders initially hoped that the risk of losing voting rights would be enough to deter countries from going down the authoritarian path.

It seems, however, that the “nuclear option” does not put off authoritarian leaders as much as it scares the EU executive.

Speaking at the University of Tilburg in September 2015, Timmermans said that article 7 was a ”measure of last resort”.

He reminded people of the political backlash that followed when the EU reacted forcefully to the far-right Freedom Party joining the Austrian government in 2000.

Pech said this interpretation was off target.

”First of all, there was strictly speaking no ’EU response’ to the Austrian case. Member states acted outside the EU framework as there was not yet a provision to deal with the situation where there was a clear risk of a serious breach of EU values rather than an actual breach,” he noted.

The Treaty on European Union has since been amended.

”It’s now possible to trigger article 7 in a preemptive way,” Pech said.

Rather than sanctions, article 7 could be triggered by the commission but it would then be ultimately for the Council to decide whether recommendations may be addressed to the relevant EU country.

Pech also said that the commission’s fears of a nationalist backlash were unjustified.

”While it’s often acknowledged that the diplomatic actions of ‘the EU’ proved counterproductive and excited nationalist sentiments in Austria, there is no compelling evidence of any serious and prolonged nationalistic backlash”, he said.

”In any event, the situation of Poland is different from the situation in Austria as in the latter case, action was taken before any tangible evidence of rule of law backsliding," he added.

"In any case, we should not have the EU guaranteeing respect of the rule of law only in situations where no nationalistic backlash can be safely assumed. To do so would not fit easily with the commission’s duty to uphold EU law, including respect for EU values, regardless of the political constellation of the day”.

A 'less nuclear' option

Similar thinking is taking place in the European Parliament.

"It makes no sense to have an article that cannot be used," said Sophie in't Veld, a Dutch liberal MEP. "Either you scrap it, or you make it work."

In't Veld recently drafted a report on ways to strengthen EU monitoring of the rule of law.

Her main proposal was it should be based on annual reporting on all member states, which would be more objective and help to detect problems before they turn into crises.

”As it stands now, the process is very arbitrary”, she told EUobserver.

”Why Poland and not Hungary? Why not France that is in a quasi permanent state of emergency? Why not Lithuania, which passed an anti-gay law?”, the MEP said.

If triggered on the basis of annual reports and evidence, article 7 could become "less nuclear”, she said.

The EU cannot function without its fundamental values, the Dutch politician said.

"Common values are defined in article 2 in the treaty. Everything else comes afterwards”, she added.

"Without them and mutual trust in each other's legal systems, there can be no justice and police cooperation, no asylum policy, not even trade”.

But the main advantage of the reports would be to stimulate public debate.

"Democracy is not a matter to be settled behind closed doors," In't Veld said. She deplored the secrecy of the commission's probe.

”European values have been written down in the treaties by civil servants, diplomats, other smart people. We need to bring these values out of the paper world and discuss: what does freedom of expression mean? Where does freedom of religion end?”, she said.

"Such debates are taking place constantly in member states, we need to have them at EU level too”.

Poland questions legality of EU probe

On eve of potentially damning EU decision, Polish strongman Jaroslaw Kaczynski has said EU rule of law monitoring could be challenged in Luxembourg court.

What does EU scrutiny of Poland mean?

The EU Commission will discuss on Wednesday the state of play in Poland, and might launch a monitoring procedure against Warsaw. But what does this procedure mean, and does it matter?

Polish leaders play down EU 'opinion'

The foreign minister has not read the EU Commission's report on the rule of law, and other party figures say it will change nothing.

Analysis

What is KOD, the Polish pro-democracy movement?

Thousands of Poles will celebrate 27 years of freedom on Saturday by joining protests organised by KOD, the Committee for the Defence of Democracy, which wants to oust Kaczynski from power.

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