The governments that created and joined the European Union all agreed that to be a member of the EU, a country must uphold and protect certain values. These include the rule of law, democracy and human rights standards. Any country wishing to join is required to protect these values.
One of the responsibilities of the European Commission is to make sure that EU governments stick to the Union’s values. The Commission is worried that the changes Poland’s new government is making to its Constitutional Tribunal and public media are damaging the rule of law.
What is the rule of law?
The rule of law refers to a set of principles that are designed to prevent a government from abusing its powers. Among other things, the rule of law requires governments to act within the limits of the law, in particular the national constitution, but also international human rights standards. Most countries in the EU have a constitutional court or tribunal, whose job it is to check that governments do not create laws that violate the constitution.
For a constitutional court to protect the constitution, the judges on that court need to be independent and impartial. That is, they need to be neutral, without being influenced by politicians.
When a government violates the constitution, the situation cannot be put right until the constitutional court makes a decision. So to make sure that the constitution is protected effectively, a constitutional court also needs to take decisions relatively quickly. If a court is slow then it can be several years until violations of the constitution are corrected. Until then the government is able to act illegally.
The rule of law also requires governments to create legislation through a democratic process, according to the will of the people. A properly functioning democracy relies on the public having access to balanced and accurate information from a media free from the influence of politicians.
How does this apply to Poland?
The Commission is concerned with the situation in Poland for two reasons.
First, the changes to the Constitutional Tribunal. The new government has appointed more judges to the Constitutional Tribunal than it is entitled to – five instead of two. The government is refusing to implement a recent decision of the Constitutional Tribunal that makes clear that the current government must accept three of the judges appointed by the previous government and only appoint two of the judges that it chose.
If the government can ignore the court, then the court cannot do its job of making sure that the government keeps to the limits created by the constitution. This means that the Constitutional Tribunal would not be able to stop the government from creating laws that violate the human rights protected by the constitution.
The new government has also changed the rules on how the Constitutional Tribunal works. These changes significantly slow down how quickly the court can decide on cases. This means that when the government does something illegal, it would now take several years before the Constitutional Tribunal can put things right.
Second, the Commission is concerned that the new government’s changes to Poland’s public broadcaster might interfere with the right to freedom of expression and freedom of information. The changes give the government control over the appointment of public media chiefs and members of public media supervisory boards.
What is happening now?
The Commission has activated its rule of law ‘framework’ in relation to Poland. The framework does not lead to any sanctions. That is, it does not give the Commission power to fine the government, cut off EU money, or take away its right to vote in the EU. The framework is designed to allow the Commission and a government to talk and negotiate a solution.
The Commission can activate the framework when it thinks that there is a ‘systemic’ threat to the rule of law in an EU country. By ‘systemic’ threat, the Commission means a situation where national courts, such as Poland’s Constitutional Tribunal, are no longer able to make sure that the government acts within the law.
If a government refuses to implement a court decision, interferes with the independence of judges, or slows down how quickly the courts can work, this makes it very difficult for the courts to check that the government is acting lawfully.
The framework has three steps. This first stage has already started. The Commission has explained to the government why it is worried about the Constitutional Tribunal. The Commission expects the Polish government to explain what it has done, why and what impact this will have on the rule of law. Although the Commission has its own experts who are analysing the situation, it will also take information and expertise from other sources.
In particular, the Commission will rely on the expertise of the ‘Venice Commission’, which is part of the Council of Europe. The Venice Commission is a body of independent experts who carry out analysis of law and policy to check that these do not damage the rule of law.
On the basis of talks with the Polish government and the Commission’s analysis of the situation, the Commission may decide either to close its inquiry, or to move on to the second stage of the framework. It is likely that the Commission will decide what to do next in March 2016.
What will happen next?
One of three things could happen next:
- It is possible that by the end of the conversation between the Polish government and the Commission, the Commission decides that the changes to the Constitutional Tribunal and public media do not damage the rule of law. The Commission might keep an eye on the situation, but it would not ask Poland to make any changes and the process would be formally over.
- An alternative scenario is that, during talks, the government of Poland might agree informally to put things back to how they were, or make other small changes that the Commission requests. This would probably bring an end to the process.
- The third possibility is that the Commission might not be convinced by the government’s explanation of why the changes to the Constitutional Tribunal and public media are acceptable, and decide that the rule of law has been damaged. If this happens, the Commission is likely to move on the second step of the framework, which is to give the government recommendations on what it needs to do to make the rule of law safe again. The government will then be given time and offered help to implement these suggestions.
In the final stage of the framework, the Commission would look at whether the Polish government has implemented its recommendations properly. If the government fails to implement the Commission’s recommendations, then the Commission can decide to start a different kind of procedure that can lead to sanctions.
This procedure, which has never been used, is described in Article 7 of the Treaty on European Union.