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Case not closed: 20 NGOs demand Commission holds Poland to account over rule of law
1.3.17
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The recent claim of the Polish Foreign Minister that his government's dispute with the European Commission over legal changes undermining the rule of law is now "closed" appears to have been rather premature. Twenty-six international and Polish NGOs have written to the European Commission to demand that it "halt Poland's backsliding from the EU's founding values," by activating Article 7 of the Lisbon Treaty, which ultimately makes possible the removal of a Member State's voting rights within the Council if a "serious and persistent breach" of the EU's founding values is confirmed.

See: Joint NGO letter: Open Letter to the College of Commissioners regarding the situation in Poland (16 February 2017, pdf) and: 'Hold Poland to Account': European Commission Asked to Start Article 7 Procedure (Liberties.eu, link)

The issue dates back to 2015:

"Since October 2015, the President of Poland has refused to swear in lawfully appointed Constitutional Tribunal judges. The Polish Parliament adopted successive reforms affecting the Constitutional Tribunal’s functioning, undermining its legitimacy and seriously reducing its ability to carry out its work. The government [of the Law and Justice Party, PiS] has routinely refused to publish and implement rulings of the Constitutional Tribunal."

See: EU: Polish Government Undermines Rule of Law (Human Rights Watch, link). A September 2016 European Parliament resolution (pdf) lists a series of other problematic laws that have not been subject to sufficient legal scrutiny.

The Commission subsequently began a dialogue with the country's conservative government (in January 2016, pdf) and issued two Recommendations, in July 2016 (pdf) and December 2016 (pdf). On 21 February it was reported (Radio Poland, link) that the Polish government had "submitted a detailed response to European Commission recommendations," with the country's foreign minister stating that "this is a situation that should be closed."

The authors of the letter consider otherwise, arguing (emphasis added):

"Poland has to date failed to provide a satisfactory solution to these concerns. Instead, the Polish government has continued to enact legislation in complete disregard for the Commission’s recommendations, and in a way that further entrenches rather than correct the problems identified.

We also want to stress that the changes impacting the Constitutional Tribunal are part of a wider sequence of reforms which undermine checks and balances and restrict human rights in Poland. Since the current government came into power in October 2015, reforms were passed which have significantly expanded the powers of the executive at the expense of the judiciary, thus undermining the separation of powers, an essential component of the rule of law. Attempts to restrict human rights, including freedom of expression and media freedom, freedom of assembly, the right to privacy and women’s sexual and reproductive rights, particularly the right to abortion, have also multiplied and are a source of concern. Although reforms have been met with a strong response by civil society, the government’s reaction to protests further confirms its resolve to silence critical voices and hold a grip on democratic counter-powers.

(...)

As the dialogue with the Polish government under the Rule of Law Framework has been inconclusive, despite an additional warning in December, and has not prevented Poland from further undermining the rule of law, we believe that a recommendation from the Commission to activate Article 7 TEU is at this stage the only way to continue to hold Poland to account for its failure to respect its obligations under the Treaties.

As alarming tendencies threatening open societies’ founding principles have emerged across the EU and beyond in recent years, it is important to be vigilant and counter any threat before it is too late. Recent developments in the US remind us how preserving a system based on effective checks and balances is vital to ensuring continued respect for those values that underpin democracies and human rights globally.

We therefore urge you to halt Poland’s backsliding from the EU’s founding values and move ahead to the next steps as laid out in Article 7 TEU."

As explained by Liberties.eu (link):

"Under Article 7, the Council of the European Union, acting on a proposal from, for example, the European Commission, may determine, by a four-fifths majority of member states, that there is a clear risk of a serious breach by a member state of the fundamental values of the EU, including the rule of law.

Article 7 also provides that the European Council, acting by unanimity on a proposal by the European Commission, may determine the existence of a "serious and persistent" breach by a member state of fundamental values of the EU. Only after this step is completed, the Member States, acting by a qualified majority, may decide to suspend a given state’s rights deriving from the treaties governing the functioning of the EU."

The Parliament is also able to propose that the Council begin Article 7 proceedings, but so far has limited itself to two resolutions in support of the Commission, in April 2016 (pdf) and September 2016 (pdf).

Others have taken a far more strident tone than the NGOs that have written to the Commission. Earlier this month, the academics Kim Lane Scheppele and Laurent Pech argued that:

"...the situation in Poland goes far beyond posing a risk to the values outlined in the European Treaties into the territory of actually breaching such values. While we appreciate that the EU institutions are facing a “perfect storm” of difficult problems, for the European Commission to simply put a few more questions to the belligerent government of Poland and to politely extend its deadline for complying with its reasonable demands makes a mockery of the European Treaties and the Commission’s role as their guardian. It is long past the time when the Commission should have moved forward with Article 7 in order to prevent a constitutional capture from occurring. With the installation of a majority of judges at the Constitutional Tribunal and a compliant political puppet president in place at the Tribunal, constitutional capture has already taken place right under the nose of the European Commission as it politely requested that the Polish government stop."

See: Poland and the European Commission, Part I: A Dialogue of the Deaf? (Verfassungsblog, link)

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