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21st Apr 2019

Poland avoids talks on rule-of-law sanctions

  • Protest against Law and Justice reforms in Warsaw. (Photo: Grzegorz Zukowski)

EU ministers on Tuesday (16 May) asked Poland to unblock talks with the European Commission and implement its recommendations on the rule of law. But they shied away from talking about stronger measures, such as sanctions.

"There was a broad agreement around the table that rule of law is a common interest and common responsibility of [EU] institutions and member states. This is a very strong starting point," said the EU commissioner Frans Timmermans, in charge of the rule of law probe.

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It was the first time that ministers weighed in on Poland's breaches of the rule of law, notably its capturing of the country's constitutional tribunal.

Shortly after its victory the parliamentary elections in October 2015, the winning Law and Justice party started stacking Poland's constitutional court with government-loyal judges.

The EU commission launched a probe into the matter in January 2016, but Poland has been unwilling to reverse the reform, ultimately having Timmermans reach out to the ministers for help.

For a long time, there was little certainty on whether the ministers would agree to the discussion, fearing it would be too uncomfortable to corner a colleague over its domestic policies.

But undemocratic tendencies in several member states, notably in Hungary, have convinced some other countries that something must be done.

"We had a very intensive debate, in an open atmosphere. It was very to the point," said Bert Koenders, the Dutch foreign minister, adding that discussions on the rule of law shouldn't be a taboo.

"We are a community of values, when there is an issue, as we have at the moment with Poland, we should have a serious dialogue," he added.

According to one EU source, the Netherlands was one of the countries that spoke most forcefully in favour of the European Commission's probe, together with Belgium, France, Germany, Italy and Sweden.

The Czech Republic and Hungary spoke against the procedure, arguing that the rule of law is a "national competence", with which the EU should not be involved. So did the UK - but it only weighed in with its objections after the end of the ministers' debate, angering some other EU diplomats.

Brexit over democracy

“It demonstrated that Brexit is more important than democracy,” one EU diplomat told the Financial Times.

Other ministers opted to back the commission's oversight of the rule of law in member states more generally, without specifically mentioning Poland. This group included Ireland, Luxembourg, Spain and Slovakia, the latter of which is considered a Polish ally.

Poland's EU minister, Konrad Szymanski, reduced the importance of the debate. He said that the Law and Justice government was always ready to talk to the commission and is just as committed to the rule of law and democracy.

"This isn't a conflict over values, but about our interpretation of these values," he said.

"We don't agree with the commission's interpretation [of Poland's reforms] and we presented all member states with copies of the documents that we have sent to the commission," he added.

If further talks fail to solve the issue, the commission could, in theory, trigger article 7 of the EU treaty and formally acknowledge that Poland has breached its obligations under EU law.

The procedure could lead to sanctions against Poland, including the loss of voting rights in the council.

Poland-friendly Orban

But such a step would require the unanimous backing of EU heads of state and government, and Hungary's prime minister, Viktor Orban, has already said he would protect Poland by exercising his country's veto.

Article 7 was absent from Tuesday's discussion, according to Sweden's EU minister, Ann Linde, who said she hoped the issue would be solved by Poland reversing its controversial reforms, rather than by sanctions.

Belgium's foreign minister, Didier Reynders, said he hoped that the commission would come back to the Council of the EU with a report detailing Poland's rule of law breaches during the Maltese presidency already, which ends in June, or the Estonian presidency that will follow.

"I hope this dialogue will take place and that we can come back to the issue shortly in the council," Reynders said.

"In the future, I hope we will go further and install a periodic review mechanism for all member states. We already have such a review mechanism for the single market and the budgets, we should also have it for the rule of law."

When asked about the commission's options if it failed to find common ground with Poland, Timmermans said: “It's not going to help the dialogue if I start setting deadlines or threats".

But he added that, "If we need to use a tool in the toolbox, then the commission is free to do so."

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EU president said he may use diplomatic immunity to decline invitations to appear as a witness in Polish cases if they start to interfere with his work.

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