With all the talk about Brexit, one might be forgiven for thinking that the only relevant piece of European law that matters any more is Article 50 of the Lisbon treaty — the clause that allows the United Kingdom to give notice that it intends to withdraw from the European Union. But the events unfolding in Poland now, at the European Union (EU) summit in Brussels last week, and at the European Parliament the week before in Strasburg show that Article 7 could be an equally far-reaching one for the political unity of the EU27 moving forward.
Right now, the ruling Prawo i Sprawiedliwosc — the Justice and Law Party, or PiS — in Poland is intent on reforming the judicial system there. That nation’s judiciary hasn’t been reformed since the heady days after the collapse of Communists and Poland’s full independence in 1987 from the Soviet bloc. And back then, the newly-liberated Poles were quite eager to embrace Western values of democracy, civil rights, a free press and an independent judiciary, free from the meddling of politicians or government policy.
And just as eagerly, Poland couldn’t wait to embrace the values of free movement of people, goods, services and trade, and the other political, economic and social benefits that came with membership of the EU.
For any state willing to join the Brussels-based club, the EU’s core values of good governance, an independent judiciary, an acceptance of democratic values and freedoms, and economic maturity are prerequisites.
Poland’s PiS has been in power since 2015 and has made no secret of its intent to rein in a judiciary that it views as too liberal, its rulings too contrary to fundamental Roman Catholic beliefs and the PiS’right-wing philosophy. More than 90 per cent of Poles are practicing Roman Catholics. That high level of adherence to the religion is a main reason why it has had a knee-jerk response to the refugee crisis, where more than a million mostly Muslims fled violence and conflict across the Middle East, seeking safe havens within the confines of the EU.
As far as the PiS government is concerned, Brussels can take its refugees and put them elsewhere — and the same goes for its interference in Warsaw’s domestic policies.
Throughout last autumn, Brussels warned the PiS government faced repercussions if it continued on its path to forcing judges to retire at 65, and by appointing new ones approved by the government.
Last December, Poland’s President Andrzej Duda had signed into law in a judicial early retirement bill, one that took effect last Tuesday. No sooner had he done that than the European Commission — which is effectively like the bloc’s political Cabinet — triggered Article 7 disciplinary measures against Warsaw.
As any observer of the EU will tell you, it’s not the fastest to act, and a glacial pace represents a workout for most Eurocrats. In its own language, the Commission said it had tried for almost two years to engage Polish authorities “in a constructive dialogue” and was taking the action to “protect the rule of law in Europe”.
“In the absence of judicial independence, serious questions are raised about the effective application of EU law, from the protection of investments to the mutual recognition of decisions in areas as diverse as child custody disputes or the execution of European Arrest Warrants,” the Commission statement said.
And just like with Article 50, Article 7 has never been triggered before — and is often referred to as “the nuclear option”. That’s perhaps a little misleading given the tensions that existed between North Korea and the US over this period too, but it is Brussels’ punishment clause, allowing it to discipline member-states when there is a “clear risk of a serious breach” of the bloc’s core principles.
A proposal to trigger Article 7 can be brought forward by the European Parliament, the European Commission or by one-third of member-states.
The European Council, with the consent of the European Parliament, must then reach a four-fifths majority decision on the proposal, and speak to the state in question. Once adopted, the measure has two parts — a preventive mechanism and a sanctioning mechanism.
Article 7(1), as triggered by the European Commission on Poland, would see a formal warning given to the country accused of violating fundamental rights. If this doesn’t have the desired effect, Article 7(2) can be used to impose sanctions and suspend EU voting rights.
As far as the Commission is concerned, it found 13 instances of laws passed by the PiS government over two years that are negatively impacting the entire system of justice in Poland, and these affect its Constitutional Tribunal, the Supreme Court, its ordinary courts, the National Council for the Judiciary, the National School of Judiciary and — significantly — Poland’s prosecution service. In other words, as far as Brussels in concerned, not only is the right to a fair trial by an independent judiciary at stake, the likelihood of malicious and capricious prosecutions against critics of the government cannot be excluded.
“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,” the Commission explained.
With age comes wisdom — and judicial experience. But the PiS’ new law forces Poland’s judges into mandatory retirement at 65, and female judges too must quit at 60 — and that clause alone runs contrary to EU workplace laws on gender equality.
As far as the Commission is concerned, Poland has every right to implement its judicial reforms — with the important caveat that they meet EU standards. The Commission also is afraid that if the PiS gets its way, other EU nations that have turned to the right in recent months, might also follow suit.
With the new law taking effect on Tuesday, Polish Supreme Court judges have vowed to defy the government and carry on working as normal. President Duda has said that he will retire Supreme Court Justice Malgorzata Gersdorf under the terms of the new law. As far as she is concerned, Poland’s Constitution is on her side, and she can remain in office until April 30, 2020. What is ironic is that she will be able to appeal her case to the European Court of Justice, which is the final arbiter of legal proceedings for EU member-states on points of EU law. EU law may be on her side, but it’s hard to know exactly what will happen if indeed Brussels follows through on Article 7 options. That does allow for sanctions or the membership of a EU state to be suspended. That’s a long way off, even by the slow-moving standards of Brussels. But in this instance, the principle of justice delayed being justice denied seems somewhat inappropriate.