Brussels shares responsibility for Poland’s rule-of-law crisis

In late December, two months after the nationalist Law and Justice Party (PiS) won elections in Poland, the government rushed a law through parliament that risks undermining the effectiveness of the Constitutional Tribunal as a check on the executive.

The new law, signed by president Andrzej Duda of PiS on 31 December, requires a two-thirds majority in the 15-member court, instead of a simple majority, to block legislation.

The Helsinki Foundation for Human Rights, a leading nongovernmental organization in Poland, has commented that the changes will mean that “operations of Poland’s constitutional court will be blocked.”

President Duda also refused to swear in three judges appointed by the outgoing parliament, instead swearing in five judges appointed by the new PiS-controlled parliament.

The new government has also sought to bring the media under its control, pushing through a law in parliament on 31 December allowing a government minister to appoint and dismiss the supervisory and management boards of public television and radio, thereby undermining guarantees for their independence.

Brussels’ response to the unfolding constitutional crisis in the EU’s sixth-largest member has been robust.

Frans Timmermans, the European Commission vice-president who leads on rule of law issues, wrote twice to the Polish government in late December, calling for a halt to the changes to the court until their impact has been “fully and properly assessed” and stressing the importance of media freedom and pluralism to the “common values on which the union is founded.”

The commissioner responsible for the media, Guenther Oettinger, has called for Poland to be subject to supervision under the rule of law mechanism.

The state of the rule of the law in Poland is to be discussed when the entire college of commissioners meets on 13 January.

The Polish government has rejected Brussels’ concerns, with foreign minister Witold Waszczykowski defending the media law as necessary to “heal our state of some diseases.”

The Council of Europe and Organisation for Security and Cooperation in Europe (OSCE) have also raised concern about the risks to media freedom from Poland’s new law.

Nils Muiznieks, the Council of Europe commissioner for human rights, expressed concern with the lack of public debate and scrutiny of the media law on 5 January, saying that arrangements giving government officials the power to appoint and dismiss the boards that oversee public broadcasters “contradict Council of Europe standards,” and calling on Poland’s president not to sign it.

Thorbjorn Jagland, the Council of Europe secretary-general, on January 5 sent a letter to president Duda, stating worries about the impact of the new law on public service broadcasting on the integrity and independence of public service media and asking the president to consult with Council of Europe freedom of expression experts before taking any action on the law.

The OSCE representative on media freedom, Dunja Mijatovic, expressed deep concern about the media law on 30 December, saying that she feared it “will endanger the basic conditions of independence, objectivity and impartiality of public service broadcasters.”

President Duda signed the media law on 7 January, notwithstanding those concerns.

The hardened line from the European Commission is in stark contrast with its weak approach toward similar problems in Hungary.

Prime minister Viktor Orban’s Fidesz government, which until 2014 had a supermajority in parliament, has led the way in undermining the rule of law and media freedom since it came into power in 2010 - measures that met with minimal action at best by the commission.

PiS party leader Jaroslaw Kaczinski, an admirer of Orban’s self-styled “illiberal democracy,” in October 2011 publicly stated that he wants to “bring Budapest to Warsaw.”

Observers in Warsaw will be well aware that Hungary’s ongoing authoritarian slide has met with few consequences in Brussels, setting a dangerous precedent for other EU member states (notwithstanding the commission’s recent actions over Hungary’s asylum abuses).

Commission scrutiny of Poland is imperative to safeguard the European Union’s basic values, but it shouldn’t stop there.

The commission should consider activating its rule of law mechanism against Hungary as the European Parliament called for in December, to send a clear signal that member states that undermine the rule of law and media freedom will be held to account.

Lydia Gall is a researcher on eastern Europe and the Western Balkans at Human Rights Watch, a New York-based NGO.