EU countries regularly speak out when governments outside the Union violate these standards. And they don’t shy away from criticising each other in settings like at the UN or the Council of Europe. But EU governments have always maintained silence on each other’s rights records when meeting in Brussels. But now the taboo has been broken, as Bert Koenders, minister for foreign affairs of the Netherlands, put it.
The European Commission, which has spent over a year in talks with the Polish government, has had little success in bringing Warsaw back into line after a series of damaging reforms. At the end of last year, the Commission issued the government with recommendations, representing the final step in its ‘rule of law framework’ – a process of structured dialogue divided into three stages. The Polish government rejected these recommendations, however, leaving the Commission at a dead end. The rule of law framework was designed as a prelude to the sanctioning mechanism set out in Article 7 of the EU Treaty. But the Commission was reluctant to activate Article 7 because of lack of support among governments, whose backing would be needed in the EU Council.
In an attempt to maintain pressure on the Polish government, the Commission managed to slip the matter onto the agenda of yesterday’s Council under ‘any other business’. After the Commission informed EU governments of its findings, the vast majority of ministers are said to have underlined that all EU governments must respect for the rule of law. Although the formal outcome of the meeting has yet to be published, it seems that most ministers stated that they supported the Commission’s investigation and urged the Polish government to re-open talks and address the Commission’s recommendations in good faith. Unfortunately, governments seemed more inclined to express support for EU values in the abstract than to get into discussion of why particular reforms were problematic and what the government should do to put them right.
When asked what evidence there was that Poland was even open to returning to negotiations, Frans Timmermans, first vice-president of the European Commission, seemed hopeful that yesterday’s peer pressure would bring Warsaw a change of heart. Timmermans was unwilling to speculate on what steps he would take if the Polish government refused to cooperate, but suggested that all options remained open. Some ministers suggested that the Council will keep an eye on developments and that Poland would return to the agenda within the next few months so that governments could check whether Warsaw was cooperating with the Commission.
If this were to happen, it would help to maintain pressure on the Polish government. Even though the government knows it is unlikely to fall victim to Article 7, ministers in Brussels still care about their reputations. Being branded a rights violator could alienate potential allies in the Council who might otherwise team up in negotiations, and there has been talk that governments that flout the EU’s values could see their access to EU funds blocked under new rules that would be introduced under future reforms of the EU.
By supporting the Commission, the majority of EU governments may have helped pluck a thorn from Timmermans’ side. After the Commission created its ‘rule of law framework’ (the tool it used to investigate Poland) some governments questioned its legality. To the annoyance of many capitals, the Council’s legal service produced a rather flaky legal opinion arguing that the Commission had overstepped its powers, though it is difficult to find support for this position among respected EU legal experts. If the Council does formally ask Poland to collaborate with the Commission, this would amount to an official endorsement of the procedure, putting the issue to bed.
Belgium’s deputy prime minister, Dider Reynders, repeated his call for a mechanism that would review all EU countries regularly, to check their compliance with the rule of law. This would help to overcome the reluctance of some governments to single out problem countries ad hoc, and help the EU to spot and deal with problems at an earlier stage. Liberties has argued for this in the past and readers can find suggestions on what such a mechanism could look like here.