Enforcing the Rule of Law: The Case of Poland

After the Law and Justice Party (PiS) took control over the presidency in May 2015 and won a clear majority in Poland’s last parliamentary elections in October 2015, the new conservative PiS government quickly expanded its control over the media and judiciary. They did so by introducing controversial amendments to laws, which were first passed through the Sejm: the Polish Parliament and then approved by the Senate and Poland’s new President Duda. These new laws enable the PiS government to exert greater influence over the appointment and dismissal of judges for Poland's Constitutional Court as well as the heads of the Polish public television TVP and the Polish Radio.

PiS claims that the new laws are democratically backed by Poles in the October election which brought PiS to power. The Polish opposition however claim these new laws endanger the rule of law in Poland. The Council of Europe as well as the EU Commission support this statement and are taking measures to exert greater influence on the Polish government.

“We have specific questions about the functioning of the Constitutional Court and other laws made by the Polish government, which could have an effect on the rule of law. We are asking for explanation from the Polish government, but in a spirit of cooperation and dialogue.” said Frans Timmermans, the European Commission’s first-vice president.  In return Polish Justice Minister Zbigniew Ziobro accused Mr Timmermans of a “lack of knowledge” concerning the new laws, insisting his criticism was unfair and unjustified. In this blog entry I will explain the events that took place in Poland from October 2015 until now and I will explore the different measures that the European Union can take to enforce the rule of law in Poland.

Poland’s Constitutional Crisis

In October 2015, before the parliamentary elections five judges had been nominated by the previous Civic Platform (PO) government. After PiS won the majority of seats in the Sejm in the October elections, they annulled the appointment of all five judges who were chosen by the previous parliament in accordance with the new amendment to the Law on the Constitutional Court.  On December 2, in accordance with the new amendment to the Law on the Constitutional Court, the new Sejm elected five new judges, which were sworn into office by President Duda in a midnight ceremony. As a reaction to this appointment the Constitutional Court ruled that a paragraph of the previous amendment to the law on the Constitutional Court, adopted by the previous Sejm in June, on the basis of which two out of five judges were elected in October, was unconstitutional. This meant that the election of the remaining three judges was constitutional. With this ruling the Constitutional Court obliged the president to swear them in, but President Duda refused.  As a reaction to his refusal the chief judge of the Constitutional Court did not allow newly elected judges to hear cases.

PiS also passed amendments to the organization of the Constitutional Court. The last amendment to the law on the Constitutional Court that was passed by the Sejm on the 22 of December 2015 and increased the number of judges that have to be present in a ruling. From now on the Constitutional Court would rule with at least 13 of the 15 judges present. Until now, most decisions have been made in panels of five judges. Even the most significant cases required only nine judges present. Decisions in rulings of the Constitutional Court will be taken by a 2/3 majority, and not like previously by a simple majority. Many believe that by increasing the number of judges present the government is putting pressure on the Constitutional Court to accept the 5 newly appointed judges. Furthermore, constitutional proceedings which are pending are liable to a compulsory latency time of six months with three month latency in exceptional circumstances. The Constitutional Court is now bound to handle cases according to the date of receipt.

The General Assembly of the Constitutional Court will no longer decide the expiry of the mandate of a judge, which was previously the case, but from now on they will prepare a request for his/her resignation that will be presented to the Sejm. Furthermore disciplinary proceedings against a judge can also be instituted at the request of the President or the Minister of Justice. This in fact gives the Sejm, the President and the Ministry of Justice the power to dismiss judges of the Constitutional Court. The new amendment to the law on the Constitutional Court was approved by the Polish Senate on 24 December 2015 and signed by President Duda on 28 December 2015. Many nationwide protests followed.

Poland’s Media Crisis

At the end of last year, the Polish government extended its powers further by introducing a new law amending the former Law on Radio and Television Broadcasting. This new law enables the government to appoint and dismiss the heads of the TVP and the Polish Radio. From now on the President and members of the board of TVP and Polish Radio will be appointed and dismissed by the Minister of Treasury instead of the National Broadcasting Council through competition. The Senate adopted the media law January 1, 2016 and the new year in Poland began with protest against the changes proposed by the law. In response to the new law, the heads of Poland’s public television resigned. Radio One protested by playing the Polish national anthem and the anthem of the European Union every two hours. This way Radio One wants to draw attention to the threat this new media law imposes on pluralism and freedom of expression in the Polish media.

Not only did the European Commission strongly oppose this new law but Reporters Without Borders (RSF), the Association of European Journalists (AEJ) as well as the European Broadcasting Union (EBU) are among those who have expressed deep concern. Poland even faces being ejected from the European Broadcasting Union (EBU). This means that it will not be able to compete in the Eurovision Song Contest. “To preserve the integrity and independence of public service media as a symbol of a free and democratic country, we ask you in the strongest possible terms not to sign this measure into law,” Ingrid Deltenre, the EBU’s director general, wrote to President Duda, last December. The Eurovision Song Contest is seen as inferior in many Western European countries but in the new Central Europe that emerged after the fall of the Soviet Union it is seen as important event that helped to consolidate their place in Europe and their European identity. Exclusion from this contest is therefore a measure that will be taken seriously.

Enforcing the Rule of Law

The European Union is based on respect of the rule of law and on respect of the equality of all Member States. Since 2009 however, the European Commission has addressed and confronted several events that threatened the rule of law in its Member States, for example the deportation of Roma by the former French President Nicolas Sarkozy,  the adaptation of a new constitution by the Hungarian Parliament after Victor Orbán's party Fidesz won an overwhelming majority of seats, the Romanian 2012 constitutional crisis where the ruling socialists tried to dismantle the constitutional court, and now the new laws that have been adopted in Poland. Compliance with the rule of law is important for the protection of all fundamental values listed in Article 2 TEU. It is also essential for upholding all rights and obligations deriving from EU Treaties and from international law.

As a reaction to the events that threatened the rule of law in the last couple of years, the European Commission adopted a new framework to protect the rule of law in the EU in 2014. This framework is complementary to the formal infringement procedure which the Commission can launch if a Member State fails to implement a solution to clear and improve the suspected violation of EU law. The new framework allows the Commission to enter into a dialogue with the Member State concerned to prevent the increase of fundamental threats to the rule of law. The new framework can best be described as a "pre-Article 7 procedure". It establishes an early warning tool to tackle threats to the rule of law. This procedure allows the Commission to enter into a dialogue with the Member State concerned, in order to find solutions before the existing legal mechanisms set out in Article 7 of the Lissabon Treaty will be used.

Under Article 7 of the Lisbon Treaty, serious breaches to the European values of human dignity, freedom, democracy, equality, the rule of law and respect for human rights by a member state can result in a suspension or loss of voting rights. The Article 7 procedure of the Lisbon Treaty enables the Council of Ministers, acting by a qualified majority, to decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question. In the most severe case it will allow for the suspension of voting rights of the representative of the government of that Member State in the Council of Ministers.

On January 3 the first step has been taken by European Commission vis-à-vis Poland using this new Rule of Law Framework. The Commission initiated a dialogue with Poland which is still ongoing. Although Frans Timmermans, the European Commission’s first-vice president officially stated that the Commission triggered the first step of the rule of law procedure, which entitles the Commission to make a formal assessment of Poland. He added that their main aim is to “Start a dialogue with the Polish authorities without prejudging any next steps.” There is a chance that if the issues will not be resolved the Commission will trigger the second step of the rule of law procedure and issue a "rule of law recommendation" to Poland. It will recommend that Poland will solve the problems identified within a fixed time limit and will then inform the Commission of the steps taken to that achieve effect. The Commission will then make its recommendation public. As a follow-up to the Commission Recommendation, in the third stage of the rule of law procedure, the Commission will monitor the follow-up given by Poland to the recommendation. If there is no satisfactory follow-up within the time limit set, the Commission can resort to one of the mechanisms set out in Article 7 of the EU Treaty.

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