13 January 2016

Commission opts to formally initiate rule of law mechanism against Poland

The European Commission has today decided to formally invoke the EU’s so-called ‘rule of law’ mechanism against the Polish government, despite briefings by EU officials in recent days that the Commission would instead opt for an ‘informal dialogue’. The first stage of the resulting process involves an assessment of whether there are “clear indications of a systemic threat to the rule of law” as well as a dialogue with the member state concerned (see here for more details).

Although Vice-President Frans Timmermans stressed his eagerness to work with the Polish government, the Commission’s intention is clearly to pressure Law and Justice into reversing its recent moves to rein in the powers of the country’s Constitutional Tribunal (the issue of the independence of Poland’s public media will be dealt with separately).

Undoubtedly this is a bold decision by the Commission – Poland is a large and increasingly important EU member state – a different proposition to Hungary which has embarked on a similar path. Possibly this is what motivated the Commission to decide to intervene – if they did not send out a strong message at this stage, the problem would subsequently have become unmanageable. However, many will argue – with some justification – that Law and Justice has been singled out given the number of similar disputes across the EU which the Commission could involve itself in if it were to apply the rule of law principle dogmatically.

Commission enters minefield of Polish domestic politics at its peril

Regardless of whether one supports or opposes the Commission’s decision, it is absurd to claim, as Timmermans did earlier, that it is a purely procedural decision as opposed to a political one. Questions pertaining to the rule of law simply cannot be divorced from politics and there is inevitably scope for different interpretations of national constitutions, as well a range of views on the extent to which public bodies ought to constrain democratically elected politicians.

The Constitutional Tribunal issue is inescapably linked not only to Polish party politics but to the wider political culture in Poland, and the Commission will inevitably be accused of taking one side – that of the liberal opposition – in a domestic dispute. As I wrote in my previous blog, this is likely to be counter-productive by undermining the credibility of the opposition by linking it to ‘foreign interests’. Supporters of Law and Justice will also link these developments to the increasingly bitter dispute about how the EU ought to deal with the refugee crisis to argue that Poland is being ‘punished’ for wanting to protect its own citizens.

Despite the dubious nature of the changes introduced by Law and Justice, ultimately, it has a direct democratic mandate and the Commission does not. Law and Justice is therefore well placed to win any argument based on legitimacy, and the EU’s intervention therefore risks undermining its support even among Poles who do not support Law and Justice, as well as further afield.

What is the Commission’s exit strategy?

Now that the Commission has effectively committed itself to taking on the Polish government, this begs the question of how this will play out. Ideally, from the Commission’s perspective, Law and Justice will succumb to pressure to fully or partially reverse the changes to the Constitutional Tribunal. However, if it does not do so – and I expect the government will fight its corner – the Commission is ultimately only left with the ‘nuclear option’ of Article 7 – the suspension of a member states’ voting rights.

This can only be triggered by the unanimous support of all other member states, and Hungary has already said it would veto any such move. Other member states, even those unsympathetic to Law and Justice will be highly wary of establishing a precedent which could be used against them. The risk for the Commission is therefore that it cannot force Poland to change course (just like it cannot force Eurozone member states to observe debt and deficit rules), thereby undermining its own credibility at a time when this is already perilously low.

Of course it remains in the interests of Law and Justice to reach an accommodation with the EU – there is a balance to be struck between doggedly standing up to Brussels and being in a state of permanent conflict – and in my view some form of face-saving compromise remains the most likely outcome. That said, if Law and Justice refuses to back down, the Commission is stuck with no credible exit strategy.