Rule of Law in Poland: Commission Triggers Article 7 Procedure in Unprecedented Move

The European Commission brought its rule of law procedure against Poland to a new level to defend judicial independence in the country.

Given the clear risk of a serious breach of the rule of law in Poland, the European Commission on Wednesday initiated to start an Article 7 procedure and issued a fourth round of recommendations and calling on the Warsaw government to engage in further dialogue.

EC's concerns deepen

The decision is based on Article 7/1 of the EU Lisbon Treaty, which says that the Council has determined that there is a serious breach of the European Union’s common values.

First Vice-President Frans Timmermans said: "Sadly our concerns have deepened. Within a period of 2 years 13 laws have adopted which put at serious risk the independence of judiciary and the separation of powers in Poland. The entire structure of the justice system if affected."

The European Commission therefore decided to issue a fourth complementary Rule of Law Recommendation, setting out clearly the steps that the Polish authorities can take to remedy the current situation.

Timmermans underlined several times that despite previous failed attempts to find common ground, the EC is ready any time for dialogue with the Polish government.

Secondly, the Commission decided to take Poland to the European Court of Justice for breaches of EU law in its recent law on the Ordinary Courts Organisation.

Finally, the EC agreed with legal analysis that concluded that the Polish government's reforms allow it to interfere significantly with the judiciary. The common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.

Commission seeks for 4 steps

Timmermans expressed his disappointment by saying: "after two years of trying for dialogue, of course we are frustrated that we haven't achieved what we want to, so now we're encouraging the council and Parliament to support us."

Therefore the EU’s executive body gave Poland three months to address its concerns. In case the Polish government implements the recommended actions within the given timeframe the EU bodies may reconsider the Reasoned Proposal sent to the Warsaw government.

  • Not apply lower retirement age to current judges
  • Remove the discretionary power of the president to prolong the mandate of Supreme Court judges
  • Remove the new retirement regime for judges including the discretionary powers of the Minister of Justice
  • Restore the independence and legitimacy of the Constitutional Tribunal

The Article 7 procedure

The unprecedented move by the EU’s executive body was made by the college of commissioners based on their assumption that the Polish government has broken the common human rights rules and democratic values of the European Union.

Based on the 7th article of the EU’s Lisbon Treaty, the EC can invoke the procedure in case there is a "clear risk of a serious breach" of EU values.

The procedure may ultimately result in Poland losing its voting rights in the European Council and could even strip the country of billions of euros of EU funding.

But since Article 7 requires a four-fifths majority to be invoked, EU members allied with Poland, most notably Hungary, may block the decision in the European Council.

'Decision made'

Still, the Polish government has been repeatedly and strongly condemned for its legal reforms, which limit judges' independence and allow politicians to fire and hire judges.

The governing right-wing Law and Justice (PiS) party has defended the reforms by saying that they are needed to make the judiciary more efficient and democratic.

Last week, the country's new prime minister, Mateusz Morawiecki, told to the press as he left early from an EU summit that "the decision has already been made" and his government will stay on a collision course with the EU.