European Commission ‘very close’ to triggering Article 7 on Poland

Government plans to bring the judiciary under its control prompt Brussels to consider severe sanction.

The European Commission is “very close” to triggering the EU’s Article 7 procedure against Poland — a move that can lead to the suspension of a member country’s voting rights, Commission Vice President Frans Timmermans said Wednesday.

The Commission will also prepare to start infringement proceedings against Warsaw for breaching EU law over its plans to bring the judiciary under government control, Timmermans told reporters.

Timmermans said triggering Article 7 — sometimes described as the EU’s “nuclear option” — was “part of the discussion” on Poland. “Given the latest developments, we are coming very close to triggering Article 7,” he said.

The EU has never used Article 7, which was established more than 17 years ago as a way to ensure “that all EU countries respect the common values of the EU.”

Speaking to reporters at the Commission’s daily briefing, Timmermans said he was concerned about four recent Polish legislative measures, including a law that would revamp the National Council of the Judiciary (KRS), the body that nominates Poland’s top judges, ending the terms of its 15 judges and allowing parliament, where the ruling party Law and Justice party (PiS) has a narrow majority, to nominate their successors.

Should Poland’s new legislative measures be implemented, they would “greatly amplify the threat to the rule of law” and “seriously erode the independence of the judiciary,” Timmermans said, adding that he had “not seen any initiative to re-start the dialogue” with Poland.

“If this all leads to nothing, there is no choice than to set the next step,” he said.

Under EU law, the Commission may determine “that there is a clear risk of a serious breach by a Member State” of the EU’s fundamental values. The Commission’s decision would then set in motion a process that could lead to the country losing its right to vote in the Council.

Nevertheless, the loss of voting rights under Article 7 requires the unanimous consent of all EU member countries — and Hungarian Prime Minister Viktor Orbán has stated that he would veto any attempt to sanction Poland.

On Wednesday, Timmermans said he would prepare infringement proceedings against Warsaw for breaching EU law and submit them to the college of commissioners next week. This type of disciplinary procedure depends on the Commission identifying a specific piece of EU law that Poland has violated. In another recent controversy involving Poland — government reforms to the Constitutional Court — the Commission was unable to identify such a violation.

Timmermans also announced that he would prepare a third recommendation for Poland as part of the institution’s rule of law probe, launched in January 2016, after Law and Justice made constitutional changes that the EU considered “systemic threats” to the rule of law. The recommendation would be “formally adopted” by the college of commissioners next week, Timmermans said.

Poland’s EU affairs minister, Konrad Szymański, told Polish press on Wednesday that if the Commission introduces its rule of law recommendations, “we will respond.”

“In the current reform process, questioning of judges’ independence is not the intention of either the Minister of Justice or the parliamentary majority,” Szymański said. “The Polish parliament, with help of the president, will find appropriate solutions for the reform of the judiciary, without external help.”

The Commission’s approach on Poland was welcomed by many in Brussels.

The European Parliament’s Socialists and Democrats group said it would consider the use of “all possible infringement proceedings against Poland for the violation of EU law” as required “should the Polish government and authorities continue to disregard the warning signals from Brussels concerning the independence of the judiciary,” said Gianni Pittella, the group’s leader.

“The independence of the judiciary power, as well as the freedom of the press, are the fundamental pillars on which the European Union is based,” he added.