Poland and the European Commission, Part II: Hearing the Siren Song of the Rule of Law

As Poland has careened away from the rule of law, the European Commission has struggled to work out its response. Given Europe’s multiple crises at the moment, the internal affairs of a rogue government or two may seem less critical to Europe’s well being than crises that affect multiple states at the same time, like the refugee crisis, the Euro-crisis or the fallout from Brexit. But the proliferation of governments inside the EU that no longer share basic European values undermines the reason for existence of the EU in the first place.

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Poland and the European Commission, Part I: A Dialogue of the Deaf?

On 21 December 2016, the European Commission adopted an additional Recommendation regarding the rule of law in Poland. Rather than starting the Article 7 sanctioning process, the Commission merely reiterated its old demands, added some new concerns and again held out the threat of Article 7 while apparently moving no closer to actually starting a sanctioning process. It is not that the Commission was unaware of what was happening in Poland. In December, the Commission stood by and watched the Polish government capture the Constitutional Tribunal. The new Recommendation indicates that the Commission simply chose not to act to head off the final stages of the Tribunal’s demise.

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The EU and Poland: Giving up on the Rule of Law?

With an off-hand remark in a Belgian newspaper, President Juncker has called off the EU Commission’s effort to pressure Poland into following the rule of law. If he went through with this, he would not only pull the rug from under his own First Vice President Timmermans and spare the national governments the necessity to live up to their responsibilities. The Commission President deciding that the slide of a member state into authoritarianism is not his business, with a Trump Presidency in the US coming, forgoes the European Union’s claim to be capable of fulfilling its leadership role in the world.

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Systemic Threat to the Rule of Law in Poland: What should the Commission do next?

Considering the overwhelming evidence of a deliberate governmental strategy of systematically undermining all checks and balances in Poland as well the uncooperative behaviour of Polish authorities, the Commission has been left with no other choice but to trigger the Article 7 mechanism. Even if there is no realistic chance of seeing the Council adopting sanctions against Poland, this step would finally oblige national governments, meeting in the Council, to face up to their own responsibilities.

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Can Poland be Sanctioned by the EU? Not Unless Hungary is Sanctioned Too

Hungary has announced to block any Article 7 sanctions that the EU might propose against Poland. Why should Poland back down when nothing will come of standing up to the EU? Given Polish intransigence, the Commission may be tempted to stall for time or to retreat, which would be disastrous for the rule of law in the European Union. But the power to levy Article 7 sanctions can be restored. The Commission should do now what it should have done long ago. It should begin by triggering Article 7 (1) not only against Poland, but against Hungary as well.

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Is the EU Commission’s Rule of Law Fight about Poland already lost?

In ten days, the deadline set by the EU Commission to Poland in the current stand-off about the Polish constitutional crisis will expire. A lot is at stake for both sides. In Warsaw few expect that the Commission will still be able to keep the ruling party from having it their way.

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Hat die EU das Kräftemessen mit Polen bereits verloren?

Zehn Tage. So lange hat Polens Regierungspartei mit dem schönen Namen "Recht und Gerechtigkeit" (PiS) noch Zeit, den Konflikt mit der EU-Kommission um das polnische Verfassungsgericht beizulegen. Für beide Seiten steht enorm viel auf dem Spiel. Doch in Warschau rechnet kaum jemand damit, dass die EU die Entmachtung des Verfassungsgerichts noch stoppen kann. Eine Recherche.

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"What is Going on in Poland is an Attack against Democracy"

"A constitutional coup d’état": Wojciech Sadurski, one of Poland’s foremost jurisprudence scholars, dissects the strategy of the Polish government to disembowel the Polish Constitutional Tribunal.

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Für eine Verfassungskrise gibt es keine politische Lösung

Was Polen will, kann die EU-Kommission nicht akzeptieren, und umgekehrt. Nach Wochen des "konstruktiven Dialogs" (Kommissionsvize Frans Timmermans) gibt es immer noch überhaupt kein Zeichen des Aufeinanderzugehens. Ist das schlimm? Im Gegenteil.

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How to protect European Values in the Polish Constitutional Crisis

Does the Polish development concern us — the European citizens and the European institutions we have set up? There is a functional and a normative argument to state that it does. The normative argument is that the European Union organizes a community of states that profess allegiance to a set of fundamental values—among others, democracy, the rule of law, and human rights. The functional reason is that the European legal space presupposes mutual trust. European law operates on the presumption that all institutions are law-abiding. Otherwise, the legal edifice crumbles.

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