The recent judicial reform plan sponsored by the Polish government in 2017 caste a curse on the European Union and its founding values of democracy and Rule of Law. Gaia Taffoni (University of Milan) looks at the possible solutions that the EU could take to deal with this breach.
In this blog post Gaia Taffoni focuses on the recent judicial reform plan, sponsored by the Polish government in 2017. The decision of Poland casted a curse on the European Union and its founding values of democracy and Rule of Law. Taffoni argues that even if the EU has its means to deal with the breach Poland has perpetuated, Article 7 is hardly applicable in this case. Both the veto of Hungary and the general reluctance toward external interferences of member states will impede any action from the Union. Furthermore, Brussels will not be able to start an infringement procedure, that applies only to violations of the European law and not to breaches of a value. The only solution to this problem, it is highlighted, would be to apply enlargement conditionality also to member states.
Since Poland’s government released a major judicial reform plan in 2017, the European Union’s (EU) weakness has been publicly showed as the Union has seemed unable to stop the dismantling of Poland’s rule of law.
Adding to the authoritarian trends in Hungary, the attacks on the EU’s democratic values arrive like a cold wind from eastern countries. This puts seriously at risk the European value-based project if no action is taken.
Rule of law is indeed a founding value of the EU. It is considered the backbone of liberal democracy and is envisioned in the funding Article 2 of the Treaty of the European Union as a pillar for EU member states or that aspire to become members. The importance attached to the rule of law is also of practical nature. One of the main facets of the rule of law is the guarantee of judicial independence, which means responsibility of the judicial power and impartiality of adjudication that leads to economic growth and stability.
Unfortunately, the recent Polish case has shown that the EU lacks sufficient mechanisms to bind member states to respect this principle. This is quite a paradox compared to the enlargement policy where the EU has developed mechanisms of conditionality that required post-socialist countries to meet the founding values of the EU. However, once in the EU, those democratic reforms are proving to be more cosmetic than real. The question that arises then is whether EU mechanisms are fit to cope with rule of law threats coming from within and how the rise of populist stances might indeed call for new mechanisms of control.
Since the populist Law and Justice party (PiS) won the election in 2015, the rule of law in the EU has been widely antagonized. Guarantees of judicial independence are deemed as an inefficient barrier extending the Court's ruling process. Therefore, PiS invoked a reform of the domestic judicial system justified with the need to combat the high level of corruption, to enhance the judicial effectiveness and to “decommunise” the system.
In January 2017, the Polish Government announced the launch of a major plan to strengthen the accountability and the efficiency of the whole judicial system. However, in an attempt to improve the system, the three draft laws actually proved to “seriously undermine the separation of powers” as stressed by the UN Special rapporteur Diego Garcia-Sayàn. Indeed, the method of the election of Judges envisioned in the new law together with the reduction of powers of the High Judicial Council and the possibility given to the ruling party to oust members of the Supreme Court is considered to “put at serious risk the independence of all the parts of the Polish judiciary”, underlined the Venice Commission - the Council of Europe’s legal advisory body on democracy, human rights and the rule of law.
The new laws made Poland cross the line of European shared values and triggered an immediate response from the European Commission, the guardian of the EU’s values. But what means can the EU use to make member states respect the funding values of democracy, human rights and the rule of law?
Despite having set democratic criteria for candidate countries to meet before entering the European Union, a great fear shared among former member states in the post-Maastricht period was related to the newly accessing countries. Indeed, when Central and Eastern European (CEE) countries knocked on the doors of the European legal and normative space, member states were interested whether the newcomers would have public institutions ensuring stable expectations of behavior of both social and civic actors and that, once entered the Union, they could not reverse to old undemocratic habits. For this reason, together with the democratic criteria, a mechanism of sanctions was established enabling the suspension of an EU member states’ voting rights in the Council in case of posing serious threats to European values. This sanctioning mechanism was then formalized in Article 7 of the Treaty on European Union.
Article 7 foresees two steps: in the first instance, with the consent of ⅘ of the Council, the Commission sends an “early warning” to the affected country. This is a preventive move that is only to notify the country that a serious breach has actually happened. The second step concerns a sanctioning mechanism that allows the Council to suspend a country’s voting rights with a qualified majority of consent.
Both the preventive and the sanctioning mechanisms of Article 7 have never been applied in practice and the reason is quite straightforward. Indeed, as the recent Polish case has showed, to activate Article 7, unanimous agreement among member states is needed. Despite the decision to trigger Article 7 advanced by the Commission’s Vice President Franz Timmermanns, Hungary will surely veto this action as the stance of Prime Minister Viktor Orban is in line with that of Poland’s former Prime Minister Beata Szydlo who accused the EU of ‘interference’ with national matters.
Judicial governance remains a strict national policy and some member states are reluctant toward external interferences that they see as politically motivated actions rather than value-based stances.
Given the practical impossibility to use the mechanisms envisioned in Article 7, the EU might otherwise initiate an infringement procedure. This strategy was tested in the case of Hungary in 2012, when Hungary forced the retirement of 62 judges allowing the ruling party led by Prime Minister Victor Orban to nominated in the new positions judges affiliated to his party.
With this option comes a downside, that is the practical impediment connected to the fact that the rule of law remains an important European value but is not, de facto, part of European law. The infringement procedure in fact applies only when a country is contravening a specific European law and not a value, even if the latter is present in the Treaty of the European Union.
Indeed, there are no European laws addressing the institutional set-up of Judicial Councils for member states, thus in practice the reduced authority of Poland’s Judicial Council is not an infringement considering that no EU laws prescribe how much power should be given to an independent authority.
In the accession policy, the EU can rely on a mechanism of sticks and carrots, in other words, the process is based on the fact that the provision of accession aid and membership is conditioned upon the advancement of democratic reforms.
In order to tackle recent rule of law threats, an enlargement conditionality should also be applied to member states.
The amount of European funding should indeed be tied to the respect of democratic criteria also within the European Union. European money is in fact not conditioned upon the respect for European core values as it was given for granted that liberal democracies would automatically share the same principles.
Recent backslidings and the resurgence of positions that dismiss the respect for the rule of law in favour of ‘national interests’ show how democratic principles can no longer be given for granted.
A value-based binding mechanism within the EU would consolidate democracy and the rule of law, and also have a long-lasting effect on economic stability.
Gaia Taffoni, PhD Candidate at the University of Milan, and Visiting Researcher at the Centre for European Studies
Photo credit: Mathiasrex, Maciej Szczepańczyk, Wikipedia