06 January 2017

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. The new “complementary Recommendation” issued on 21 December 2016 gives the Polish government more time to address the Commission’s growing set of serious concerns, but it is already clear that the Polish government is using its extra time to further consolidate its constitutional capture.

In fact, the Commission issued its new Recommendation on the very day that Andrzej Rzepliński, the Constitutional Tribunal’s brave President, stepped down at the end of his term, setting in motion the endgame for the ultimate capitulation of the Constitutional Tribunal that was forecast months ago by, among others, Maximilian Steinbeis, the editor of the Verfassungblog. The Commission’s Recommendation clearly acknowledged that the Tribunal was about to be lost, but still, it failed to do anything that might have given the government pause in its relentless drive to abolish the Tribunal’s independence. The Commission’s new Recommendation was therefore dead on arrival, since the events it tried to forestall had already come to pass. The Commission’s delay and continued reluctance to start the sanctions process will make it harder for any external pressure to undo the damage.

In this post, we consider why the Commission hesitated to respond, and what this means for the future of the EU. Part of this story is that Article 7 TEU, which lays out a warning and sanctions process for Member States that violate basic EU values, is difficult to successfully invoke, as it sets up supermajority hurdles at both the European Council and the European Parliament before sanctions may be adopted. But there are other reasons too. 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 and threatens the functioning of a legal framework which ‘is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU’ (Opinion 2/13, para. 168).

The “values crisis” may not seem as urgent as the other crises on European plates, but it has the most far-reaching implications for the European project because without common values, there are fewer reasons for the EU to exist. Europe therefore fails to act at its peril. And it needs to act before rogue governments become ever more entrenched.

1. The Abdication of EU Institutions in the Polish Case

While the criticism in Part I of this post has been directed at the Commission for its failure to address the Polish problem more forcefully by triggering Article 7 TEU before the capture of the Polish Constitutional Tribunal was completed, the Commission’s continuing failure to defend the rule of law is due in no small part to the European Council’s shameful lack of action. The European Council has done nothing about either Hungary or Poland over the seven years that constitutionalism has been under attack first in one and now in both. On the eve of a confrontation in Poland between governing party MPs and opposition protestors in December 2016, European Council President Donald Tusk, himself a Pole, broke his silence for the first time, suggesting gently that all sides might behave themselves, and honour the constitution. But the European Council did not act as an institution.

This abdication of the European Council as the EU’s sixth largest economy abandons the rule of law reveals yet another weakness in the European project: A country that could meet the entry criteria to join the EU was presumed to retain its constitutional-democratic commitments over the long haul so the EU gave itself few options to correct problems if a country’s commitments began to falter. If the EU is not a community of values, however, it is only an economic shell. Amnesty International was therefore right to call for European governments to ‘step up to the plate and support the people of Poland by placing this serious threat to rule of law and human rights on the agenda of the Council’ (see press release issued on 21 December 2016).

Given the European Council’s lethargy on first Hungary and now Poland, one wonders where the countries are which just a few years ago asked the Commission to introduce a ‘new, light mechanism’ to enable it to make recommendations or report back to the Council ‘in the case of concrete evidence of violations’ of the EU’s fundamental values or principles such as the rule of law. Ironically, Poland was one of the eleven signatories of the so-called Westerwelle report. The Polish Prime Minister was then Donald Tusk, who is now President of the European Council and one of the European leaders who has most conspicuously failed to act to arrest the deterioration of the rule of law in Poland, speaking out only once after more than a year of assaults on constitutional institutions. Perhaps this is because his home government has threatened not to back him for renewal in the post and has even held out the possibility of bringing criminal charges against him on the basis of an investigation that most observers outside the country believe is politically motivated. And yet no EU official has forcefully spoken out against these attempts by a Member State to bully its nationals serving in EU offices when that bullying itself is connected to the assault on the rule of law.

The Council has been similarly lethargic and its inaction is furthermore accompanied by inconsistent public pronouncements. In the Joint Declaration on the EU’s Legislative Priorities for 2017 it recently co-signed, a number of important issues are identified as goals, including the pursuit of ‘our commitment to common European values, the rule of law and fundamental rights, including our joint engagement to stand up against discrimination and xenophobia’. One may also note in passing that Robert Fico signed this joint declaration on behalf of the Council as Slovakia was then holding the rotating Council Presidency. This is the same politician who said in 2016 that ‘Islam has no place in Slovakia’ and was included in Politico’s 2015 ‘top 10 wackiest anti-refugee remarks’, alongside Marine Le Pen, Jaroslaw Kaczyński, Viktor Orbán to name but a few. In short, values backsliding, rhetorically speaking, is not confined to Hungary and Poland.

Notwithstanding the gap between rhetoric and action, this continuing lack of support from the European Council and the Council, both representing the Member States within the EU, at least renders the Commission’s reluctance to activate the misnamed ‘nuclear option’ understandable (see our previous analysis of President Juncker’s comments on Article 7). There may be indeed a cost to be paid if the Commission triggers Article 7 and none of the other key EU institutions take any note of it. To wait however for a clear signal from a majority of national governments that Article 7 would succeed seems, however, like an excuse for not doing anything. Indeed, why would any national government signal its intent to support the Commission when there is no certainty the Commission may trigger Article 7? Such a public stand would require paying a diplomatic price for a position which may ultimately be proven unnecessary.

Because the Commission, rightly or wrongly, expects political backing before moving to the next logical step, this leaves it no other option than working with the Parliament. Strictly speaking, the Parliament could activate Article 7 itself, though there are supermajority hurdles there also: for the purposes of Article 7, the Parliament is required to “act by a two-thirds majority of the votes cast, representing the majority of its component Members” (see Article 354 TFEU). But considering the Commission’s acquired expertise in the situation in Poland and the complications of party politics in the Parliament, it would indeed make sense for the Commission to take the lead and activate Article 7.

Having two of the three major institutions behind a condemnation of Poland is better than one, even if not enough to actually issue any sanctions. Article 7 requires Council supermajorities to determine that there is a “clear risk of a serious breach” of EU values such as the rule of law in a Member State while requiring unanimity in the European Council members save the offending state when it comes to determining the existence of a “serious and persistent breach”. One may only hope that an eventual collaboration between the Parliament and the Commission might further shame the Council or the European Council into acting. But the high hurdles previously noted do not make the Article 7 sanctioning process easy.

That said, the Parliament has actually been quite active in both Hungary and Poland, while leaving the actual triggering of Article 7 to the other EU institutions. Parliament took the lead in the case of Hungary, when the Tavares Report of July 2013 passed the European Parliament on an overwhelming vote and called upon the Commission to begin monitoring Hungary with the goal of eventually triggering Article 7 if Hungary did not change its ways. Following the Report, however, neither the Commission nor the Council took up the responsibilities that the Parliament had urged on them, and nothing serious was done about Hungary’s backsliding. Though this inaction from the other institutions could have discouraged the Parliament from continuing, the Parliament tried again in December 2015 when it directly called upon the European Commission “to activate the first stage of the EU framework to strengthen the rule of law” in order to evaluate “the emergence of a systemic threat in that Member State which could develop into a clear risk of a serious breach within the meaning of Article 7 TEU”. But here, too, the Commission failed to act. And while the Commission on 30 November 2015 did accept to register a European Citizens’ Initiative requesting the activation of Article 7 against Hungary, it was subsequently closed by its initiators. None of these prods from the more democratic institutions of the EU have gotten the Commission to budge.

With regard to Poland, the Parliament has similarly expressed its concerns with a resolution in September over the situation identified by the Commission in its rule of law dialogue with the country. The resolution expressed support for the actions of the Commission and expressed the Parliament’s concern about the fact that the Polish government seemed unwilling “to cooperate with the Commission pursuant to the principle of sincere cooperation” in order to solve “the ongoing constitutional crisis” in Poland. But the Parliament did not even mention Article 7. It instead clearly indicated that the ball was in the Commission’s court.

The problem is that while EU institutions get their act together, the capture of the Constitutional Tribunal by PiS-compatible judges means that it is just a matter of time before the PiS majority on the Tribunal is able to directly or indirectly overrule the judgements referred to by the Commission in its recommendations, while ignoring the most blatant violations of the Polish Constitution whenever it is required to facilitate the implementation of Kaczyński’s illiberal agenda. Indeed, Julia Przyłębska’s appointment as the new president of the Tribunal on the day the recommendation was issued ignored the strongly expressed views of the Commission that the appointment of a new president be deferred. In light of her previous record, one might reasonably expect that the Tribunal has been for all intents and purposes been effectively neutralised already (for further analysis, see Prof Koncewicz, Living under the unconstitutional capture and hoping for the constitutional recapture).

As evidence, the new President of the Tribunal has already made a decision to seat the unconstitutionally elected PiS judges and is now in a position to take up (or not) particular matters before the court, stall the controversial cases to the point where they become moot, and rule in the government’s favour whenever judicial support is required. To maintain the fiction that the Constitutional Tribunal is functioning, we see that the Polish authorities have already started to refer controversial measures to the Tribunal when they would find a judicial rubber stamp useful. Last week’s decision of Polish President Duda to send the controversial freedom of assembly bill to the Constitutional Tribunal (Reuters, 29 Dec. 2016), just a few days after the Tribunal was captured, shows that the government now trusts that the Tribunal will not disrupt their plans to consolidate autocracy in Poland. Rather the reverse.

Once again, Hungary provides the model. As happened with the Constitutional Court in Budapest, the now-captured Constitutional Tribunal in Warsaw can be expected to approve whatever the government puts before it. The government can then use the court’s positive decisions to defend itself from external criticism. It is indeed easy to imagine Polish Prime Minister Szydło saying to Commission First Vice President Timmermans:  “Last week, you said you were defending our Constitutional Tribunal and this week you reject its decisions.” As in Hungary, one might expect that the Tribunal may hold some minor measures incompatible with the Polish Constitution from time to time if only to preserve appearances and convince uncritical outsiders that the system is still formally compliant with the rule of law.

In a study worth reading, Prof Bátory shows that countries deficient in the rule of law like Hungary often engage in creative and symbolic compliance strategies to enable the Commission to disengage from conflicts it judges too costly while still maintaining its credibility. The ploy works even when compliance with EU values is not achieved on the ground. The experience of Hungary shows that even if Article 7 were to be triggered by the Commission in the spring with regard to Poland, the Council would then be in a position to pretend that the previously denounced systemic threat to the rule of law had already been fixed because the Constitutional Tribunal would be operating and the government will be complying with its new decisions. By that time, the various reports and recommendations that the European Commission and Venice Commission have produced will seem to be out of date, leading credence to a Polish governmental claim that it has taken note of the Commission’s various recommendations and everything is now fine.

Given the time it takes to mobilize the action of European institutions, fast-moving situations can always escape being policed because the EU is not nimble enough to act at the same pace. We have already seen European institutions try and fail to discipline Hungary when the Orbán government moved to swiftly bring all formerly independent institutions under party control. Orbán always claimed to have solved all of the problems identified by the European Commission just before the sanctions bit. European institutions now repeat the same dance with a different partner who follows the same steps. If the Polish government looks to Hungary as a positive model, then European institutions should look to Hungary as a negative one. The EU might reasonably suspect that it will have the same ineffective results by following with regard to Poland the same set of threats followed by inaction as it did in Hungary.

2. What else can be done?

2.1 Learning from past mistakes: What EU institutions did not learn from Hungary

The key finding one may draw from the Commission’s ongoing struggle with Poland is that it has not learned the right lessons from its past dealings with Hungary. When Orbán’s Fidesz party came to power in 2010 and started its methodical capture of state institutions and the media, the Commission wrongly assumed they were just dealing with a national government intent on implementing a nationalist agenda and sought to rely on the traditional infringement procedure to fight the most visible violations of specific provisions of EU Law.

This strategy utterly failed. It failed first because not only the Commission but also all other EU institutions did not grasp that they were dealing with a new type of meticulous and legalistic autocrat following a clearly designed blueprint that aimed to progressively dismantle national checks and balances in order to establish a majoritarian one-party autocracy which would never have to fear subsequent elections.

The European Parliament correctly diagnosed the problem in July 2013 and urged the Commission ‘to focus not only on specific infringements of EU law, to be remedied notably through Article 258 TFEU, but to respond appropriately to a systemic change in the constitutional and legal system and practice of a Member State where multiple and recurrent infringements unfortunately result in a state of legal uncertainty, which no longer meets the requirements of Article 2 TEU.’ Had the Commission taken this diagnosis fully on board, it may have been convinced to look beyond individual breaches of EU law and consider instead ‘the combined impact of a number of measures exacerbating the state of democracy, the rule of law and fundamental rights’ as requested (again) by the European Parliament in June 2015.

In the Commission’s defence, Orbán’s strategy for dismantling the ‘liberal state’ was not easy to decipher, at least initially, as this was indeed an unprecedented phenomenon in the EU. The Commission might also have been hampered because the European’s People Party was doing its best to shield Orbán from criticism in the name of partisan politics (see Prof Kelemen, “EPP ♥ Orbán” in Politico.eu), even though at least half of the EPP members split from the party’s official position and refused to block the Tavares Report in July 2013.

Perhaps even more significant was the fact that the Commission received no support from either the European Council or the Council for more drastic actions or sanctions in the Hungarian case. To give a single example: rather than supporting unambiguously the Commission’s rule of law Framework, national governments acting within the framework of the European Council decided instead to establish their very own “annual rule of law dialogue”, which is tragically ineffective because it asks Member States to report on themselves, and this tends to produce more self-congratulation than criticism. The Council’s new rule of law dialogue followed on the adoption of a poorly argued opinion by the Council Legal Service in which it implausibly denied the Commission’s authority to adopt its Rule of Law Framework (for a critique of the Council Legal Service’s opinion, which has since been referred to by the Polish government to argue that the Commission is acting ultra vires, see Profs Baratta; Bogdandy et al; Besselink; Hillion; Kochenov & Pech).

Notwithstanding the lack of reliable support from the Council, the Commission’s strategy also failed because Orbán had learn to implement a fait accompli strategy, which included tactical retreats and the adoption of the most minimalistic formal remedies when found in breach of EU law, leaving values-violating practices in place. For example, when the Court of Justice ruled against Hungary for firing its data protection commissioner, Hungary successfully argued that it should not fire the new more politically