On December 20, 2017, the European Commission opined that changes initiated in Poland with respect to the judicial system could constitute a threat to the rule of law, which forms the basis of the European Union. “Rule of law” is one of the essential common values delineated in Article 2 of the Treaty on the European Union (hereafter TEU): “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”.
Inasmuch as the Member States agreed under the TEU that they are conjoined in respecting the rule of law, they did not introduce a common definition of this concept. In the interim, the Member States legal doctrines continued to develop in a sovereign manner. However, the specific meaning of notions such as rule of law, państwo prawne, de l'État de droit, Rechtsstaatlichkeit, utilized in various, equally valid language versions of the Treaty, were not identical. The fact that such an essential term as “the rule of law” was not defined in the TEU, means that all definitions arising from legal doctrines and the jurisprudence of Member States, concurrently functioning within the European Union, carry the same legal weight.
For Poland, the essential definition in this matter is presented in the Constitution of the Republic of Poland, specifically in Art. 2: “The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice…” and is further formalized in Art. 7 “The organs of public authority shall function on the basis of, and within the limits of, the law.” This restriction thus obligates the Polish authorities in their proceedings with other institutions, specifically the various EU institutions, including the European Commission, which in turn are bound by Art. 2 of the TEU. This arises from the fact that Art. 7 of the Constitution of the Republic of Poland incurs into the conceptual area of ”rule of law” as it functions within Polish legal doctrine. Furthermore, the requirement that government adheres to law (the principle of legality) is a necessary condition of the rule of law, de l'État de droit and Rechtsstaatlichkeit. Each of them presumes governing per lege, i.e. only on the basis of law, following a conferral of competences. It also means governing within the limits of the law, which indicate limits of the powers to be exercised. This is particularly important in the relations between the government of Poland with the institutions of the EU, which is not a state, but an international organization with clearly delineated competencies, assigned by the Member States. Ergo, from a legal standpoint, it is clear that the government of Poland is prohibited from engaging in cooperation in any area that lies outside the scope of competences delegated in line with relevant provisions of the TEU.
One must also remember that the Member States of the EU – individually or in conjunction – do not possess a formal right to evaluate how the judicial system is organized in another Member State. Such judgement would encroach upon a concept of fundamental importance to international relations, namely sovereignty. Thus Member States of the EU, when entering into an international agreement (the TEU) were not legally in a position to confer upon the European Commission the rights which they themselves did not possess in the first place. Had this occurred, it would have encroached upon the general concept, developed in Roman Law, according to which one cannot confer more rights than the scope of the rights which one possesses (nemo plus juris in alium transferre potest quam ipse habet). Therefore, there is no doubt that the European Commission has ascribed to itself powers, which it never received, nor could have received, even via an act of primary EU legislation.
Nonetheless, the Commission decided to initiate a disciplinary procedure against a member nation on the basis of Art. 7.1 of the TEU:
“On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.
The Council shall regularly verify that the grounds on which such a determination was made continue to apply.”
Bearing in mind the principle of legality, one must then posit the question – did the European Commission function per lege, i.e. within the limits of law and within the competencies which were assigned to it?
The premises upon which the European Commission based its actions with respect to Poland were developed based on Art. 2 of the TEU, which lists the fundamental values of the EU. Thus the steps undertaken by the Commission to deal with the judicial reforms introduced in Poland were based on an appraisal of their general consequences for the rule of law in a Member State (an associate function was also fulfilled through the position taken by the Venice Commission of the Council of Europe). It is worthwhile to note that these were vapid premises, particularly when confronted with the unequivocal wording of Art. 5 of the TEU:
“1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States (bolding SD) in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States”.
Thus, for reasons which have already been mentioned, the structure of the judicial system in Member States does not fall within the purview of the EU. Yet, the Commission asserts that it is authorized to examine the judiciary reform in Poland, and to go as far as to determine that it violates European legal standards. The Commission also claims that the very procedure defined in Art. 7 authorizes it to conduct investigations to clarify the issue, since it is obligated to present the Council with a ‘considered motion’ prior to initiating a disciplinary proceeding.
Meanwhile, in line with the principle of legality, the tasks of any public authority – and the European Commission in the breadth of the competencies conferred by the treaties must be considered as such – cannot be equated with its competencies. Indeed, the premise of legality posits that competencies of a given institution cannot be inferred from the scope of tasks assigned to it. Each public institution is obliged to act only on the basis of and within the limits of law, including the delegated competencies. In another words, the European Commission exceeded its authority when it stated that in accordance with the task assigned to it under art. 7 of the TEU it had the right to conduct an investigation into the issue at hand.
The fact that such a fundamental legal feature, i.e. the need to infer authority from the responsibilities unequivocally assigned to an institution, is not known to the Commission, should be a cause for deep concern. It is a threat to the legal order of the entire Community, a far greater one than the eventual results of any possible missteps made during a judicial reform in a single Member State, since they would be confined solely to the territory of that Member State.
If the Member States, as creators of the Union, truly had intended to endow the Commission in such a verification authority, they would have included such a clause in the treaties. Yet, they did not do so. They decided to introduce a Lex imperfecta – they formulated an assignment for the Commission, concurrently stripping it of a legal basis for its effective execution. Nonetheless, there was a clear political reason for such an action – it limited the powers of the Commission vis a vis the national governments of the EU. The case of initiating a disciplinary proceeding against Poland by the Commission, based on Art. 7 of the TEU, proves that the concerns of Member States regarding an abuse of power by European Commission were fully warranted.
This is the actual root cause of the conflict between the government of Poland and the European Commission. Poland argues that the instant reforms of the judiciary are not an issue the Commission should be busy examining. This matter is not included among the competencies which the European Union can dispense. Beyond that, the Polish government does not share the opinion of the Commission as to the consequences of these reforms for the rule of law in Poland, a Member State of the EU. Once again, it is hard to escape the impression that the Commission was attempting to encroach upon the competencies of both the remaining EU institutions and the institutions of a sovereign member state. One might even go as far as to argue that the Commission desired to act as the Polish Constitutional Tribunal, which certainly does not have any basis in the treaties.
In accordance with the TEU, all disputes concerning its interpretation shall be resolved by the Court of Justice of the European Union in Luxembourg (CJEU). The statement issued by the Ministry of Foreign Affairs of Poland which followed the European Commission had made the decision to invoke Art. 7, would suggest that Poland may file a case against the Commission for a presumed abuse of powers. However, the issue at hand is once again that of non-conferred competencies on the EU level. The CJEU is empowered to rule in disputes between EU institutions and Member States within the limits of the powers and issues conferred on the EU by the Treaties. The judiciary system of a Member State and the way in which it is set up do not belong to these. Nonetheless, once the European Commission forwarded a motion to initiate a disciplinary proceeding against Poland based on Art. 7.1, an uncertainty arose as to whether the actions of the Commission concerning reforms in the Polish judiciary, which could become a subject of charges to the CJEU, were legal. What follows is that only now the actions of the Commission evoke legal consequences for the Member State.
The government of Poland must now choose a strategy to defend itself. The political path, leading up to halting the entire procedure, seems to be more promising. This is particularly so if one considers that any proceedings before the Tribunal would in fact limit Poland’s room for political maneuver. The Member States could avoid taking a position in the dispute between the European Commission and Poland while the decision of the CJEU would be pending. This, in turn, would lengthen the process—a scenario running counter to Poland’s interests.
Let’s not forget about one additional legal dimension of the case at hand. The treaties create obligations for all parties as well as institutions formed as a result of these treaties. However, the internal regulations of these institutions are binding only for them. As a result, a fundamental question arises. Did the Polish government have a legal obligation to comply with the recommendations made by the Commission? These recommendations were based on two pillars. First, the notice issued by the Commission, which does not carry any biding legal consequences and is of an internal character. Second, the Commission’s controversial interpretation of Art. 2 of the TEU. The appropriate court to adjudicate this uncertainty would be the Polish Constitutional Tribunal.
The government of Poland, in line with the Constitution and acting as the executive branch, can only act within the limits of the binding law. In this case, it is the delegation of powers to specific EU institutions based on the TEU. If we agree that there is a legitimate doubt as to whether and in what scope the judicial reform in Poland is part of powers conferred to the EU, then a question arises as to whether the government would be operating on the basis of and within the limits of the law (specifically the Constitution of Poland) when fulfilling the demands of the Commission? A matter which the Polish Constitutional Tribunal could look into, might be, for example, a bill requiring that the government of Poland not cooperate with various agencies the EU with respect to non-conferred competencies and based on internal regulations of these institutions. Even if the ruling of the Constitutional Tribunal would be of a purely referential nature, it would nonetheless constitute a precedent and would therefore be a good opportunity to dispel all relevant doubts.
For the very first time in the history of European integration, the Commission initiated a procedure directed at expelling a Member State from the European Union, invoking at best a purported serious violation of European law. The very issue, therefore, is already a landmark in European history. The procedures initiated under Article 7 have heretofore been described as a “nuclear option”. Indeed, whatever the final result of the process initiated against Poland, the accuracy of this term is definitely going to be borne out. However, the decision will also carry very grievous consequences.
It will determine the future shape of the European Union, its adherence to the rule of law, the nature of relations between various institutions of the European community and its Member States, as well as between nations partaking in the European integration. The political “radiation” from this issue will have an impact on the politics of European integration for many years. The issue also touches upon a question of the greatest political weight – the sovereignty of nations and the relationship between national governments and international organizations. It will be referred to whenever these institutions venture into the realm of the supranational, be it secretariats, commissions, or voting.
If the Commission fails, the federalist tendencies in Europe might wane, but the legal foundation of the European Union will be strengthened. It may also cause the Commission to refrain from creating its own competencies based on its interpretation of the challenges it faces (or believes to be facing). The engendering of such a practice might, sooner or later, lead the Union to disintegration, since it will stop acting as a legal institution.
On the other hand, Poland’s defeat could ignite processes which no political force in Europe would be able to contain. Suffice it to say that as a result of the Commission’s actions it became much more probable that a significant anti-EU political power with ambitions to partake in governing will emerge in Poland. It is for this reason that putting an end to the illegal disciplinary procedure against Poland has become the most pressing task for Poland’s foreign and European policy. In addition, when fending for herself, Poland will be in fact acting in the best interest of all EU Member States.
Upon receiving the Commission’s motion concerning the initiation of proceedings under Art. 7.1, the Council will ‘investigate’ whether the defects listed in the motion have been corrected, and thus whether there are grounds for termination of the procedure. Thus, it is the Council, and thereby the Member States, which are burdened with the entire responsibility for the ensuing process: the verification of the motion, an analysis of the risks which the Commission formulated and the ultimate result of the decision expressed in the Council’s vote. Thus, it is the nations of the EU which must ask themselves, as well as their voters, whether the issue raised by the European Commission falls within the competencies delegated to the supranational (Community) level, and whether it could lead to a ‘serious violation’ of the Union’s values. And further, is this risk of a sufficiently ‘clear’ nature to entertain the risk that the entire Community will disintegrate?
The process initiated under Art. 7 is a politically expensive one for all members of the EU. For the nation charged under this motion it is difficult not just because of issues of prestige. It is faced with the need to create coalitions with those EU Member States which recognize the gravity of consequences were such a charge be executed. The Council would need to confirm the existence of a serious risk of violation of the values of the EU by a “majority of four fifths of its members.” In another words, a nation thus charged would need to gain the support of six other members of the EU in order to block the procedure.
Nonetheless, the need to stymie this motion affects every national government of the EU. Clearly, none of them would wish to find itself in a similar situation sometime in the future. Thus, they should utilize this opportunity to strip the Commission of an instrument which it currently is attempting to wield. If the Council does not find itself with a 4/5 majority, the Council will, de facto confirm that the judicial reform undertaken in Poland does not create any serious risk to the values of the European Union and the disciplinary procedure will terminate. Thus, the concept of a “serious risk” must be supported by 22 Member States of the EU. Any abstentions will be considered as a nay vote.
It is at this moment that we will reach a very critical juncture. After a negative decision by the Council, and in accordance with Art. 7.1, the Commission will no longer be able to apply Art. 7.2. When the Council determines that no ‘serious risk’ exists, the matter will be permanently closed. This then should be the goal of the government of Poland. The fact is, that for a large Member State, the formation of a coalition of six nations, which will either abstain from the vote, or will vote against it, should not be too difficult. The government will be judged not on its style, but on its effectiveness.
What if the motion based on Art. 7.1 is not blocked, and as a result of the vote four fifths of the Member States acknowledge ‘the existence of a risk of a serious nature’? We would then, unfortunately, move to the next phase of the procedure, although such a step would be neither legally nor politically necessary. In accordance with Art. 7.2:
“The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.” Thus an assertion of not a ‘risk’ but of a ‘serious and persistent breach’ of the values described in Art. 2 of the TEU would require unanimity.
In reality, it will be very difficult to achieve such unanimity, since all parties will be exhausted by the conflict. The stakes–stripping a Member State of its voting rights–will only exacerbate the conflict and prolong it. Thus, the government should focus on the first stage of the proceeding and organize a coalition of six nations to block the motion. In any case, were the vote in the initial to be unfavorable, it will be easier to convince nations which support Poland’s position in the first phase of this process to continue their support in the second phase.
The verification motion initiated against Poland was conducted by the European Commission since 2016. It was based on a March 2014 communique issued by the Commission, and from its very start was not of a technocratic nature. In fact, it glistened with a very clear political goal. The Commission aspires to increase it area of competence, thus abandoning the initial function which had been ascribed to it by the founders of the Union. They ruled out the possibility for the Commission to initiate any political motions, since it did not possess any legitimacy in that area. Yet, we do live in a reality determined by, on the one hand, the Treaty of Lisbon, and Jean-Claude Juncker’s political aspirations for the Commission on the other. The Commission is trying to exploit the case of Poland to enlarge its own competencies, and has applied a dubious interpretation of the Treaty on the European Union to that effect. Juncker’s Commission is thus attempting to become independent of the Member States, founders of the Union. A similar attempt was made in 1965, on Walter Hallstein’s watch. It evoked a major crisis in relations with France. Between 1965 and 1966 Paris pursued an ‘empty chair’ policy and thus paralyzed the functioning of the whole Community.
However, why didn’t Juncker’s Commission, who is on the way to become Hallstein’s heir, initiate such a plan earlier, even though similar doubts were aired vis-à-vis Hungary? All because of political calculation and the protection of the European People’s Party, whose member the Prime Minister of Hungary, Viktor Orban happens to be. Thus, from the very start of the conflict with Poland, the Commission has de facto resigned from its role as “guardian of the treaties” in its actions versus Poland. Once the disciplinary process has been initiated and the Council was invited to enter the fray, the next phase will be driven, almost entirely, by political forces and arguments, not legal ones.
This is a result of various factors, among them, the fact that the participants in the process are now the governments of Member States who represent national political interests. This then turns the procedure into a multi-phased European discussion reaching well beyond matters directly affecting the European Union. Although, for the European Commission, the Union and the role of the Commission within its institutional structure conclude the scope of its political activity and interests, for the Member States the participation in European integration is solely an instrument of pursuing its own national interests. For many smaller Member States the most significant, albeit not the only one.
The position taken in this matter will automatically affect the political relations between Poland and the remaining members of the EU in all spheres: on the European level, with respect to defense policy, and foreign policy in general. It is difficult to prejudge what would be more facile for a Member State: conducting a dialogue with the Commission, based on its internal communique – which has no legal standing – but which defines in a draft manner the procedure for verifying the risk for the rule of law, or conducting a dialogue with the Council on the basis of the regulations as defined in Art. 7 of the TEU?
The response to this question is not straightforward. Poland has born an enormous political cost by entering into the dispute with the Commission. This will also carry a significant weight for the remaining Member States as they make their decisions at the Council’s forum. The negative image that has now been affixed to Poland can put other nations under additional pressure (including media pressure) to recognize that in fact a ‘serious violation’ of the core values of the European Union as described in Art. 2 of the TEU has materialized. Nonetheless, during two years of dialogue with the European Commission, Poland has already paid a high price with respect to its reputation. At this point, then additional costs will be rather limited. In addition, the tool box which Poland’s government could still use in when dealing with the Member States of the EU is significantly larger than the one for dealing with the Commission. Nonetheless, evading the consequences of Art. 7 procedure is guaranteed to consume a lot of time and political effort for the Polish government. This fact should prompt it to achieve the speediest possible resolution of the whole issue.
The tactics which the Polish government will resort to win in all probability be intended to eliminate a clear asymmetry between a nation subject to a rule of law procedure and other participants of European integration. The Commission was not able to convince Poland as to the Commission’s own mandate to examine the Polish judicial reform in Poland and to issue its critical evaluation of the changes introduced. It was for this reason that it decided to transfer the matter to the Council level, thus initiating the procedures proscribed in the Treaty.
Elimination of the political asymmetry will most probably rely on Poland emphasizing the unprecedented character of the procedure. It is potentially dangerous for all Member States. It is currently impossible to judge how opinions and political preferences of European societies will evolve. In the future, influenced by dominant attitudes of the day, European institutions may consider it appropriate to lend their support to specific political forces in individual Member States. Given Commission’s current politicization, it is easy to imagine that it will continue to encroach upon the competencies of the Council and Member States. This is a dangerous occurrence, which at least some of the Member States will be unwilling to accept. Dreading the very risk for the future shape of the Union that the procedure may create they are likely to be interested in as rapid a conclusion of it as possible.
Another possibility to eliminate the political asymmetry would be to raise legal arguments.
The ongoing procedure against Poland will not end with sanctions. However, it could result in strengthening of the anti-EU sentiments already present in all of Europe. Over time, their popularity could lead to the formation of political parties with aspirations to govern. Such a scenario would become more plausible were sanctions to be implemented and Poland stripped of the right to vote in the EU Council, based on an unanimous decision of the remaining members. Therefore, instead of averting another Brexit, the process can in fact lead to an increase in anti-EU attitudes and referendums. In the long run, perhaps to consecutive “exits” from the EU.
A nation subject to such repressions does not cease to be a member of the Union, but becomes an object of decisions made in its name, on which it has not had any impact. Disenfranchisement of a Member State in the EU Council would violate the concept of equal sovereignty of nations, expressed in the statement: par in parem non habet imperium. Additionally, it would serve as the violation of the fundamental Polish tradition of sovereignty known as as ‘nic o nas bez nas’ (nothing about us without us) also known in the United States in a similar phrase ‘no taxation without representation’. Participation in the Union in which a democratically elected government can only be an onlooker, and thereby cannot effectively represent the interests of its citizens, would amount to a betrayal of the fundamental interests of the nation and would lead to questions about the very rationale for its existence.
One must clearly state that the proponents of the initiation by the European Commission of the procedure based on Art. 7 of the TEU, are thereby entering a path which will lead to the emergence of such socio-political conditions in which there will be no pro-European victors, or losers. On the other hand, one must be conscious of the fact that the procedure embedded in Art. 7.2 de facto serve to ‘exile’ a Member State from the EU. Honestly speaking, it is difficult for me to imagine that this result would be considered as a political success by any person or institution.
Polish Diplomatic Review 1/2018, p. 7-18.