Bursting the Bubble

Constitutional crisis in Poland: is EU rule of law at risk?

20 April 2016 | by

Since the October 2015 elections in Poland, won by the right-wing eurosceptic party Law and Justice,the country has repeatedly been in the European agenda because of its so called constitutional crisis. The new government has carried out a series of measures regarding the functioning of Poland’s Constitutional Court, which has been declared unconstitutional by the Court itself. These measures are seen as undermining the quality of democratic checks and balances in the country, a perception reinforced by the government’s decision not to take into account the Court’s ruling, refusing to publish its verdicts.

This situation has been seen by the EU as endangering the rule of law in the country, and thus in January 2016 the Rule of Law Framework’s monitoring procedure was used for the first time since its creation in 2014. This procedure starts with a preliminary assessment (now taking place) and is followed by a series of recommendations and a follow-up from the Commission. It can be seen as a way of delaying the application of Article 7 of the Lisbon Treaty, which states that ‘the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council’. In practice, Article 7 implies a temporary revocation of a country’s membership to the EU, a situation which all players involved are likely to want to avoid.

Looking at the situation from an abstract point of view, it could be argued, as the Polish government does, that the measures have been approved by a democratically elected government, which represents the will of the people, and thus that its decisions should be final. However, analysis of the situation cannot ignore the fact that the government has compromised to govern the country in compliance with the Polish Constitution (and, by extension, with the European Treaties), and thus that acting outside the scope of what the constitution court rules is consequently acting outside the rule of law.In such a situation, the actions of the government can hardly be defined as democratic.

There is another set of arguments stating that the Commission is exaggerating by invoking the rule of law procedure. These arguments usually point towards the fact that Poland still works under the main features of what is considered to be a liberal democracy: the existence of competitive elections has not been challenged, there is a political opposition actively protesting against the government’s measures and citizens maintain their right to protest. However, these elements should not make us forget the whole of the picture: even if most democratic mechanisms are still working in Poland, this does not mean that rule of law is not in danger.

The European Union is going through difficult times: far right eurosceptic parties are rising all over the continent, an increasing number of citizens no longer feel connected to the European project, and supranational institutions as well as governments are unable to act or react together facing urgent problems such as the refugee crisis. Given this situation, the threatening of the rule of law in Poland, which we should not forget is the 6th country of the Union in terms of population, can be seen as yet another threat to the European values and what Europe stands for.

The hypothetical case in which Poland would ignore the Commission’s recommendations, leading to Article 7 being invoked, is too risky in a context of divisions, disunity and rising eurosepticism. What would be, for example, the position of countries such as Hungary in this case? How can we expect citizens to keep believing in Europe and European values, if these are no longer respected within the borders of the union? This is a moment for all member states to act together with the Commission and reach an agreement with the Law and Justice government: the EU cannot afford to face another crisis.

What do you think?