Author: MAÏA DE LA BAUME
Posted: 15/2/2017

The European Commission is fast losing its standoff with Poland over judicial independence.

While a deadline at the end of this month could open the door to sanctions, the Commission has found little enthusiasm in the bloc to punish Warsaw so far and even less unity on how to handle the right-wing government.

“I will repeat: We will not drop this issue — it’s too important,” Frans Timmermans, the Commission vice president in charge of a rule of law probe into Poland, told POLITICO.

Timmermans’ assertions aside, other commissioners and some member countries are wary of alienating Poland at a time when the EU is roiled by an existential crisis.

Should the issue come to a vote, the Commission is unlikely to be able to secure unanimity in the Council, which is required in order to send a warning to Poland for “serious and persistent breach” of the rule of law. The Council needs to issue two formal warnings before it can trigger sanctions and will need a qualified majority to do so.

“The Commission has handled the case very badly,” said a high-ranking official from a Central European country. “What’s the endgame? The Commission has no idea how to finalize this. They have no idea how to push it.”

Calls for action but no appetite

Relations between Poland and the EU turned sour after the Law and Justice (PiS) party of Jarosław Kaczyński won power in 2015 and then refused to accept five judges chosen to the country’s top constitutional court by the previous government.

The move was widely seen as an attack on an independent judiciary and swiftly earned a rebuke from the Commission, which launched a probe looking into “systemic threats” to the rule of law in Poland.

In December, Brussels gave Warsaw a two-month deadline to respond to a series of recommendations. If there is no “satisfactory follow-up” by the end of February, the Commission could try to trigger Article 7, the so-called “nuclear option” which would result in Poland losing its voting rights in the Council.

In the Parliament, the European People’s Party, the Socialists and the Alliance of Liberals and Democrats (ALDE) favor penalizing Poland if the government doesn’t comply with the Commission’s rule of law procedure, and in December Guy Verhofstadt, the leader of ALDE, urged the Commission “to trigger Article 7.”

“The PiS government has deliberately decided to ignore the recommendations of the European Commission, of the Venice Commission and of this Parliament,” he said in a statement. “Dialogue must come to an end now. It is time for action.”

The Parliament’s role is not incidental. The Council needs the consent of the European Parliament to issue a warning against Poland for “serious breach” of the rule of law, a preliminary step before it can decide on sanctions.
Timmermans argues the Commission can’t be the sole guarantor of the rule of law in the EU. “It’s a responsibility of us all, including the member states,” he said.
But few member countries are eager to take on Poland, the EU’s sixth largest country by population, at a time when the EU is plagued by internal crisis and uncertainty over how to deal with Russia and the new Trump administration in the United States.
“I very much doubt that member states will be willing, in this climate, to go on and confront Poland,” said one European diplomat.
Poland unmoved by threats
Certainly, officials in Warsaw hardly seem to be quaking in their boots.
Poland’s EU affairs minister, Konrad Szymański, declined to comment for this article, citing an “ongoing dialogue with the European Commission” as the reason. But Szymański told Poland’s TVN24 news channel last week that his country would give its answer to the Commission by the February deadline to show that the steps taken by the government “follow the rule of law.”
He also took issue with Commission Vice President Jyrki Katainen’s comments that Poland could lose its voting rights in the Council. “He’s a politician and should understand that these types of scenarios are completely divorced from the political reality of the European Union.”
The political reality: also known as Hungary.
If the Council decides to try to sanction Poland, it will require the consent of a qualified majority of the other members — something likely to be vetoed by several Eastern European countries, including Hungary, whose Prime Minister Viktor Orbán is a well-known ally of Poland’s Kaczyński.
Realpolitik before principles
Some member countries may support the Commission’s rule of law procedure in principle but an increasing number of diplomats, MEPs and some EU commissioners are divided about the efficacy of the probe, with some officials pointing out there is no unanimity among commissioners.
“Everybody agrees on the Commission’s legal diagnosis,” said a Commission official. “But at the College of Commissioners, they know that it’s politically complicated.”
Some officials even argue the rule of law procedure has been damaging rather than helpful, and that “sanctions are likely to reinforce the current government in Poland.”
In terms of how the probe has been handled, the high-ranking official from a Central European country was critical of the Commission.
“They underestimated Kaczyński,” the official said, referring to Poland’s de facto leader who recently called the EU’s rule-of-law mechanism a “comedy.” “They failed to understand that they can’t deal with the government and that they had to deal with him instead. But they don’t have any channels.”
Belgium to the rescue?
In a sign of just how concerned some countries are, there is growing support for a Belgian proposal to have an alternative mechanism by which the Commission can challenge member countries on their adherence to the EU’s democratic principles.
Last year, Belgium proposed subjecting all member countries to a periodic review of their adherence to “rule of law” standards, to avoid giving the impression that any one country is being singled out.
George Katrougkalos, Greece’s minister responsible for European affairs, said he is supportive of the Belgian proposal. “We promote the idea of the rule of law more efficiently if we don’t target one country,” he said, adding that “sanctions are generally unproductive.”
However, another high-ranking official from a Western European country said he was rather optimistic about the outcome of the probe. “Poland hasn’t changed behavior but it doesn’t mean the effect is null,” he said. “It has certainly damaged their reputation.”