Safeguarding the rule of law within the EU: lessons from the Polish experience
Safeguarding the rule of law within the EU: lessons from the Polish experience
The rule-of-law procedure against p oland, opened in January 2016, has painfully tested the safeguards supposed to protect the Eu 's fundamental values. it is now obvious that the protective mechanisms need to be strengthened. For in their current form, tested in real life for the first time, they have not dissuaded the present p olish government, led by the nationalist Law and Justice party (p rawo i Sprawiedliwość, p iS), from seriously and continuously breaching the rules. a ll interested Eu parties-that is, willing member states and institutions-should acknowledge this and start preparing modifications both to a rticle 7 of the Treaty on European u nion, which includes a sanction mechanism, and to the European Commission's r ule of Law Framework, so that the Eu 's internal defences are strengthened for future needs.
p oland | r ule of law | Democracy | Sanctions
poland 1 is the first country against which the European Commission has started
proceedings under its rule of Law Framework. it is also possible that poland will eventually
become the first member state of the Eu ever to become subject to the measures
described in article 7 of the Treaty on European union (TEu). although no formal
decision has yet been taken at the time of writing, the probability of triggering the TEu’s
‘nuclear option’—so called because the proceedings in question could theoretically lead
to suspension of the voting rights of the member state—is, in the author’s opinion,
unfortunately, so is the likelihood of the European institutions failing to pursue the
case to a positive resolution, either by consent or by force of sanctions. So far, a rather
negative scenario has been unfolding, which has proved that the Eu’s internal
safeguards for the rule of law are flawed. This is a situation that the Eu, its institutions and
member states, should not tolerate. The Eu’s internal protective mechanisms (the rule
of Law Framework and article 7 of the TEu) need to be strengthened if they are to be of
any value. The Eu’s inability to stop the polish government’s trampling of fundamental
values needs to be discussed in detail in order to better understand the weak points of
the above-mentioned safeguards and to help design substantial improvements.
The case against the Polish government
The case against the polish government started in early 2016. The European
Commission initiated its rule of Law Framework proceedings on 13 January 2016. This was
done in response to both the assault on poland’s Constitutional Tribunal by the ruling
Law and Justice party (prawo i Sprawiedliwość, piS) and the new legislation relating to
public service broadcasters, which gave the government political control over the
(European Commission 2016c; DW.com 2016)
. while both areas are equally
important, it is the Constitutional Tribunal issue that, understandably, raised the most
fears. in December 2015, the piS majority in parliament, acting under the pretext of
seeking political pluralism in the composition of the Tribunal, passed a new law
concerning its functioning and the nomination of its judges
(European Commission 2016a)
Before being effectively crippled, the Tribunal managed to rule on 9 March 2016 that the
law of 22 December 2015 was unconstitutional (poland, Trybunał Konstytucyjny 2016).
However, this was to no avail. The piS government simply refused to publish that ruling,
claiming that it had no legal standing (witek 2016). in the following months, the
president and the vice-president of the Tribunal were replaced with lawyers close to piS, and
1 although the country’s name is used in this paper on many occasions, as it is in the body of the available
literature, the author wishes to make one important clarification. The rule-of-law proceedings focus on the
deeds of the polish government, not on ‘poland’, which is understood as the 1000-year-old country that is
the homeland of the polish nation and a total of 38 million people. as will be explained later in the text, this
distinction is absolutely crucial from a communication point of view.
additional judges (also linked to piS) were nominated, despite the fact that the previous
(unpublished) ruling of the Tribunal had deemed such actions unconstitutional (poland,
Trybunał Konstytucyjny 2016).
The European Commission’s initial assessment was that there was the possibility of a
threat to the rule of law in poland
(European Commission 2016a)
. This was validated by
the official opinion of the European Commission for Democracy through Law, better
known as the Venice Commission, which is the advisory body of the Council of Europe
(CoE) that deals with matters of constitutional law.2 in its March 2016 opinion, the
Venice Commission stated that piS’s actions endangered not only the rule of law, but also
the functioning of poland’s democratic system. it warned that piS undermined all three
basic principles of the CoE: democracy, human rights and the rule of law
Commission for Democracy Through Law 2016, 24)
. The polish government effectively
waved the Venice Commission’s opinion aside, as it did the European Commission’s
initial findings (Rp.pl 2016).
as the situation in poland deteriorated, the European Commission’s rule of Law
Framework proceedings continued, albeit at a relatively slow pace. on 1 June 2016,
almost half a year after the dialogue with the polish government started, the
Commission adopted its formal opinion, effectively concluding the first stage of the procedure
(European Commission 2016a)
. The next stages took place in July and December
2016, and then in July 2017 the Commission issued formal recommendations to the
(European Commission 2016b, 2017)
. The first two were related
to concerns about the lack of an independent and legitimate constitutional review in
poland. in these recommendations, the Commission reiterated its view that the
composition of poland’s Constitutional Tribunal was no longer in accordance with the polish
constitution (Timmermans 2017).
The third and most recent recommendation covers a relatively new, additional issue:
legislative proposals in the area of court organisation that would limit the judicial
independence of ordinary courts. in the European Commission’s view, this further increases
the systemic threat to the rule of law in poland
(European Commission 2017)
Commission First Vice-president Frans Timmermans put it, under the legislative measures
proposed by piS, judges would serve at the pleasure of the political leaders and be
dependent upon them from their appointment to their pension (Timmermans 2017).
while adopting the third rule of Law recommendation, the European Commission
explicitly warned that it was finally ready to launch the sanctions procedure under the
framework of article 7 of the TEu
(European Commission 2017)
. at the request of the
Commission, the Estonian presidency of the Council of the Eu decided to add a
discussion on poland to the agenda of the 25 September 2017 General affairs Council
2 The CoE is an international organisation founded in 1949 that aims to uphold human rights, democracy
and the rule of law in Europe, and promote European culture. it is not an institution of the Eu.
one should note that it took the European Commission more than a year,
numerous meetings (including two visits by Vice-president Timmermans to poland), extensive
exchanges in writing and consultations at different levels to come to this conclusion
(European Commission 2016a)
. if the Commission finds that the polish government has
not followed the recommendations, it is theoretically bound to formally launch the
proceedings described in article 7 of the TEu. alternatively, those proceedings can be
triggered by the European parliament or the member states.
From the very beginning, the polish government has made it clear that it is not
interested in taking the European Commission’s actions seriously. This is despite the fact
that, officially, the piS government has declared its readiness to maintain a dialogue
with ‘Brussels’, as the European institutions are often collectively referred to in poland.
in practice, however, warsaw has disregarded the Commission’s views and has paid
only lip service to the rule of Law Framework procedure itself. a particularly striking
illustration of the piS government’s attitude is the following excerpt from the Minister of
Justice’s letter to Vice-president Timmermans: ‘poland is a sovereign and democratic
country, so i would like you, for future reference, to be more restrained in instructing
and exhorting the parliament and the government of a sovereign, democratic state.
Even if you—as a representative of the left—are different from us ideologically’
The polish government has not only persisted in wrongdoing, but has also
methodically added insult to injury. The gradual destruction of the polish Constitutional
Tribunal’s independence stretched over many months, during which piS ignored all the
opinions and advice given by various organisations (the European Commission, the
Venice Commission, etc.), not to mention the protests from poland’s opposition parties,
non-governmental organisations and representatives of academia. on 28 august 2017,
the polish government officially dismissed the Commission’s recommendations related
to the new laws on ordinary courts, stating that the Commission had no competence
whatsoever to judge the organisation of the polish judiciary. as usual, the official letter
to the Commission was full of assurances that the government in warsaw was ready to
engage in constructive dialogue (
it is worth mentioning that the barely hidden contempt for Brussels has not been
limited to the area of constitutional affairs. in august 2017, for example, the polish
government declared that it was not going to respect the injunction of the Court of Justice of
the European union (CJEu), which had ordered poland to immediately stop the
controversial and possibly unlawful logging of the protected puszcza Białowieska forest
(osiński 2017; TVN24 2017). This is the first ever instance of a member state openly
ignoring a CJEu injunction.
The structural weakness of the EU’s rule‑of‑law safeguards
There are two major reasons why the piS government can afford such defiance. First,
it is determined to proceed with making the deep changes to poland’s constitutional
order, regardless of the political cost. Second, the piS government has based its
strategy on a very simple assumption, that both the Commission’s rule of Law Framework
and article 7 of the TEu are only paper tigers.
as a matter of fact, article 7 of the TEu allows a situation where another member
state, that is, not the one subject to the procedure, may decide that it is not ready for a
full confrontation and is able to block the deterrence mechanism in its final phase. only
the first part of the article 7 mechanism—that is, a formal confirmation by the Council
that there is a clear risk of a serious breach by a member state of the values referred to
in article 2—can be triggered by a four-fifths majority of the member states. The crucial
part of the deterrent—that is, the acknowledgement of the existence of a serious and
persistent breach of the values, leading to the suspension of the voting rights of the
member state in question—requires unanimity in the European Council.
The piS government apparently believes that unanimity among Eu member states
does not exist in practice, and that there is at least one country willing to vote against
the deterrent. also, warsaw does not take seriously the threat that any friendly veto
could be circumvented by debating the cases of two countries at the same time, thus
effectively stripping them of the possibility of protecting each other. The piS’s thinking
might be that any collateral damage would be limited to naming and shaming,
something with which it could live. Since neither the European Commission nor the European
parliament has formally asked to use the article 7 mechanism at the time of writing, this
author’s assumption has not yet been tested in reality.
nevertheless, irrespective of the final decision concerning the article 7 procedure, one
thing already seemed clear in September 2017: the existing provisions of the rule-of-law
procedure have proved ineffective in the case of poland. The rule of law in poland has
clearly been breached; this is something that the opinion of the Venice Commission
alone states clearly enough. Yet, the Eu’s structures have been unable to stop this
breach. it is therefore evident that the existing framework offers no real protection from
a determined member-state government as long as it is able to rely strategically on the
political support of at least one other member state. The 26 against 2 scenario is all that
is needed to give the rogue state effective impunity. one should also note that not only
have the defences turned out to be impotent, but they are cumbersome and
time-consuming as well, especially if compared to the efficiency of a determined illiberal power.
of course, one may argue that the European system has been taken by surprise. To
put it bluntly: at the time when the safeguard mechanism of article 7 was created, no
one could have expected that the basic constitutional rule of law might be so openly
contested by an Eu member state. Some scholars point out that both article 7 and the
rule of Law Framework were introduced so that governments and institutions did not
need to resort to ad hoc solutions, such as the bilateral sanctions that were imposed on
austria in 2000, 3 which backfired politically (Kelemen and Blauberger 2016, 317). But
clearly they were not intended to address a crisis of such intensity and bad will on the
part of a member-state government. as Kochenov and pech put it, the abiding nature of
the rule of law was considered irreversible; hence articles 2 and 7 of the TEu were
considered largely symbolic. article 2 was supposed be a token of remembrance of the
underlying fundaments of liberal democracy, while article 7 was to play a symbolically
dissuasive role (Kochenov and pech 2016, 1062–74). The same belief that no member
state would dare to set a collision course with the very basic fundamentals of the
community laid at the heart of the European Commission’s rule of Law Framework.
apparently, the Commission believed that any rule-of-law crises to be addressed by the
Framework could only result from unintentional mistakes, poor interpretations and so
on, on the part of the government in question. at the same time, the Commission
seemed to believe that governments would act in good faith and that they would be
willing, in the end, to adhere to the aforementioned basic tenants of liberal democracy. it is
highly probable that no one in Brussels expected a situation where a member-state
government’s deeply nested and fully embraced intention was to act against the essence of
The European Commission now seems to have understood the limitations of the rule
of Law Framework and the article 7 mechanisms. This is why it has initiated an
alternative attempt to incline the polish government to change its stance: on 26 July 2017, it
announced that it was going to explore, in parallel to the rule of Law Framework, the
classic infringement procedure
(European Commission 2017)
. By doing so, the
Commission is walking on a thin rope. any infringement procedure needs to be related to a
specific provision of the Eu’s acquis communautaire (directive, regulation etc.), while
the Eu’s fundamental values, such as the rule of law, are only vaguely mentioned in the
treaties. There is no specific Eu directive on constitutional courts or the independence
of judges. nonetheless, the Commission has tried to find legal ways to use the
ordinary infringement procedure as a kind of back-up plan. in the particular case of poland,
it has found two possible infringements in the Law on ordinary Courts: discrimination
on the basis of gender due to the introduction of a different retirement age for male
and female judges (65 and 60 years respectively), and the conferment of undue
discretionary powers on the Minister of Justice. according to the Commission, the former
provision might be in conflict with article 157 of the Treaty on the Functioning of the
European union and Directive 2006/54 on gender equality in employment; the latter
supposedly conflicts with article 19 of the TEu in combination with article 47 of the Eu
Charter of Fundamental rights
(European Commission 2017)
. The advantages of the
classical infringement procedure are obvious: no member state can block the procedure
and an independent court decides on the potential sanctions.
3 in February 2000, 14 countries of the Eu imposed diplomatic sanctions on austria, in response to the
farright Freedom party (Freiheitliche partei Österreichs, FpÖ) joining the government—the first ever instance
of a far-right group taking power in the Eu. The decision, taken by 14 member states, without any solid
legal backing, had an adverse effect: the popularity of the Freedom party in austria and anti-Eu sentiments
soared. The sanctions were dropped in September 2000. See Hervey and Livingstone (2016).
in the short term, faced with persistent contempt from the polish government, the
European Commission has no choice but to clench its teeth, take the flak and continue its
rule of Law Framework proceedings. at some point it needs to decide whether to ask
the Council to trigger the article 7 mechanism. as already explained, the final outcome
is easy to predict, but this should not stop the Commission from acting. Moreover, it has
some chance of success in the parallel infringement procedure, at least theoretically. it
remains to be seen if the Commission’s arguments fly in the CJEu.
it is probably too late to save poland from several years of illiberal drift under the
current piS government, but this will hopefully only last for the duration of its time in office.
However, it is not too late for the Eu to reinforce its safeguards for any future use. The
Eu needs to have a truly effective system in place for protecting its founding values,
principles and rules. if these are neglected, then the whole European project is
worthless. The values of the rule of law, human rights and freedom of the press merit better
protection. if the dissuading power is to be effective, it needs to be strengthened.
in the longer term, any meaningful change in the safeguard mechanisms would
require a Treaty change, which is highly unlikely in the current political context.
Having said that, the history of the Eu tells us that nothing is set in stone: political
circumstances may change, and a window of opportunity might eventually appear. The Eu
institutions and member states (those willing to protect the paramount importance of the
rule of law) need to be ready with a concrete proposal when this happens.
This article suggests the following modification to article 7 of the TEu: the
decisionmaking mechanism described in the first paragraph (the Council determining a clear risk
of a breach by a majority of four-fifths of its members, after obtaining the consent of the
European parliament) should apply to the second stage of the procedure (determination
of the existence of a breach). This would still guarantee the democratic character of the
decision to launch sanctions, but would make it more probable, should the Eu ever face
a comparable crisis. needless to say, any modification to article 7 would require the
implementation of the full treaty-change procedure.
in parallel to some conceptual work related to a treaty change, the European
Commission should act in two areas. First and foremost, the Commission should modify its
rule of Law Framework. above all, strict deadlines need be introduced. as it stands
now, the Framework simply takes too long to be effective. in the case of poland, it took
the Commission more than a year and a half to move from phase one to phase three of
the Framework. in that time the polish government and its majority in parliament had
steamrollered the country’s Constitutional Tribunal, ordinary courts and part of the
media. The construction of the Framework could remain the same; it is just the timing of
the decisions that should change. additionally, the Commission should consider inviting
the European parliament, at least in a consultative role, to the Framework proceedings.
Such an invitation would protect the Commission from easy-to-imagine accusations.4
additionally, the European Commission should stop disregarding the communication
angle of the current situation. So far, the picture shows great asymmetry. The
government media in poland (they no longer merit the name ‘public media’) portray the
Commission and other Eu institutions in a negative way. For example, in one of the many
television debates related to the Commission’s proceedings, aired by the
state-controlled TVp info news channel, Vice-president Timmermans was called a ‘gendarme’
(TVP Info 2017). Some independent commentators claim that the state-controlled
media have been purposely tasked with vilifying the Eu, with the government’s
blessing (Grochal 2017). in fact, the leader of piS and the de facto extra-constitutional ruler
of poland, Jarosław Kaczyński, admitted in an interview that his party needed to control
the media to influence public opinion
. and in this particular case the
polish government is apparently trying to use propaganda to dilute public support for
European institutions, which used to be relatively high in poland.
and what has the European Commission’s response been to this propaganda
onslaught? it has been timid, basically limited to some defensive declarations made at
press conferences and to a few interviews with Vice-president Timmermans. To the
best of the author’s knowledge, the Commission has not tried to reach the core public
(in this case, poles) directly with its own explanations and rationale. The Commission
is wrong not to do so. in the author’s view, as long as it stays within the scope of its
powers, the Commission is fully entitled to communicate its actions and their rationale
directly to the relevant public, using all available and efficient means, including social
media channels and so on. The independent, privately owned media in poland do what
they can, but the Eu should not repeat its past mistakes and assume that mediation of
its communications will do the job. in the dramatically different communication context
of the twenty-first century, this is no longer the case (niklewicz 2017, 61). By
explaining its case directly to the polish public, the Commission has a better chance of
defusing a potential danger—a rally-around-the-flag phenomenon and a rise in nationalistic
and anti-European sentiments, fuelled by the aforementioned government propaganda.
additionally, in its communications with the citizens, the Commission needs to stress
that the proceedings target the government, not the country or the nation (Kelemen and
Blauberger 2016, 319).
an old adage attributed to prussian Field Marshal Helmut von Moltke the Elder says
that ‘no plan survived contact with the enemy’ (Freedman 2013, 104). although this
rather militaristic parallel might seem exaggerated or inappropriate, its logic is correct.
The mechanisms designed to protect the union’s core values from being breached
have failed: the Eu should acknowledge this and move on. There are ways to fix the Eu
defences in the area of the rule of law. The Eu institutions can still prove that they mean
4 Governments colliding with the European Commission tend to use the argument of ‘unelected bureaucrats
imposing their will on democratically elected bodies’.
it when they say that they care about the essence of liberal democracy, the essence of
this union of western democracies. That is what the rule of law is all about.
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European Commission for Democracy Through Law. (2016). opinion on amendments
to the act of 25 June 2015 on the Constitutional Tribunal of poland. opinion,
CDLaD(2016)001, 11 March.
Freedman, L. (2013). Strategy: A history. oxford: oxford university press.
Grochal, r. (2017). wyjątkowo toporna, a jednak działa. Jak piS i TVp robią
propagandę [Exceptionally rude, but it works. How piS and TVp create propaganda].
Newsweek, 19 March.
http://www.newsweek.pl/polska/polityka/jak-dziala-propagandatvp-propaganda-pis-przyklady-,artykuly,407053,1.html. accessed 22 august 2017.
Hervey, G., & Livingstone, E. (2016). what is article 7? Politico, 13 January. http://www.
politico.eu/article/hungary-eu-news-article-7-vote-poland-rule-of-law/. accessed 22
Kelemen, r. D., & Blauberger, M. (2016). introducing the debate: European union
safeguards against member states’ backsliding. Journal of European Public Policy, 24(3),
Kochenov, D., & pech, L. (2016). Better late than never? on the Commission’s rule
of Law Framework and its first activation. Journal of Common Market Studies, 54(5),
Maurice, E. (2017). Eu ministers to discuss polish situation again. EUObserver, 6
September. https://euobserver.com/justice/138912. accessed 7 September 2017.
Newsweek. (2016). Timmermans pisze list do Ziobry. Chce wyjaśnień ws. trzech
kontrowersyjnych ustaw [Timmermans writes a letter to Ziobro. asks for clarifications on
three controversial bills]. 19 February.
http://www.newsweek.pl/swiat/list-timmermansado-ziobry-timmermans-pisze-do-ziobry-,artykuly,380091,1.html. accessed 18 august
niklewicz, K. (2017). We need to talk about the EU: European political advertising in the
post-truth era. Brussels: wilfried Martens Centre for European Studies.
osiński, Ł. (2017). 11 września posiedzenie Trybunału Sprawiedliwości uE w sprawie
puszczy [Court of Justice of the Eu meeting on the primeval forest scheduled for 11
September]. Nauka w Polsce, 14 august. http://naukawpolsce.pap.pl/aktualnosci/
news,415342,11-wrzesnia-posiedzenie-trybunalu-sprawiedliwosci-ue-w-sprawiepuszczy.html. accessed 18 august 2017.
poland, Trybunał Konstytucyjny [Constitutional Court]. (2016). wyrok, Sygn. akt
K 47/15. [Judgment, case no. K 47/15]. warsaw, 9 March.
http://obserwatoriumdemokracji.pl/wp-content/uploads/2016/02/wyrok-TK_K_47_15.pdf. accessed 11
Rp.pl. (2016). rzecznik rządu: stanowisko ws. opinii Komisji weneckiej przedstawimy
jutro [Government spokesman: we will publish our comments on the Venice
Commission tomorrow]. 11 March.
http://www.rp.pl/Komisja-wenecka/160319844-rzecznikrzadu-Stanowisko-ws-opinii-Komisji-weneckiej-przedstawimy-jutro.html. accessed 11
Timmermans, F. (2017). ‘College readout on grave concerns about the clear risks for
independence of judiciary in poland’. opening remarks of First Vice-president Frans
Timmermans. Brussels, 19 July. SpEECH/17/2084.
TVN24. (2017). wycinają, choć jest zakaz. „prawdopodobnie nie rozumiemy się w
sprawach podstawowych” [They cut down the trees despite the injunction. ‘Most
probably, we can’t understand each other on the most fundamental issues’]. 31 July. http://
www.tvn24.pl/wiadomosci-z-kraju,3/zakaz-wycinki-w-puszczy-bialowieskiej-szyszko-odecyzji-trybunalu,761063.html. accessed 18 august 2017.
TVP Info. (2017). Timmermans wygłasza mowy w charakterze żandarma europejskiego
[Timmermans talks like a gendarme]. 26 July.
http://www.tvp.info/33369068/timmermans-wyglasza-mowy-w-charakterze-zandarma-europejskiego. accessed 18 august
Konrad Niklewicz, Ph.D. is the managing deputy director of the Civic
Institute, a Civic Platform think tank. He previously served as the spokesperson
for the Polish presidency of the Council of the European Union. Before
entering public service, he was a journalist and an editor for Gazeta
wyborcza, the leading Polish daily newspaper. Between 2005 and 2007 he
was the journal’s Brussels correspondent.
Cienski , J. ( 2016 ). polish media veers back to pre-1989 . Politico.eu, 11 July . http:// www.politico.eu/article/polish-tv -viewers-turn-off-tune-out-drop-out-poland-kaczynski/ . accessed 20 September 2017 .
DW.com. ( 2016 ). Eu launches first-ever rule of law review against poland . 13 January. http://www.dw.com/en/eu-launches -first-ever-rule-of-law-review-against-poland/a18975646 . accessed 11 September 2017 .
European Commission . ( 2016a ). Commission opinion on the rule of law in poland and the rule of Law Framework: Questions & answers . press release, MEMo/16/ 2017 , 1 June.
European Commission . (2016b). rule of law, Commission issues recommendation to poland . press release, ip/16/2643, 27 July .
European Commission . (2016c). rule of law in poland: Commission starts dialogue . press release, wM/16/ 2030 , 13 January.
European Commission . ( 2017 ). European Commission acts to preserve the rule of law in poland . press release, ip/17/2161, 26 July .
wroński, p. ( 2017 ). Komisja Europejska przekazała polsce zalecenia ws. praworza˛dnos´ci. MSZ odpowiada [The European Commission gave its recommendations on the rule of law to poland. Ministry of Foreign affairs responds] . Gazeta Wyborcza , 28 august. http://wyborcza.pl/7,75398,22289791, msz- odpowiada-komisjieuropejskiej. html. accessed 28 august 2017 .