Safeguarding the rule of law within the EU: lessons from the Polish experience (original) (raw)

The EU's role in policing the rule of law: reflections on recent Polish experience

Although Brexit has understandably been the primary focus of much recent EU-related discussion, it is not the only threat to the EU's long-term stability. The growing impact of populism has already influenced the Brexit referendum result and an anti-liberal resurgence within the EU. Events in Poland have led to criticism of the EU's apparent impotence in counteracting governments determined to implement an anti-liberal, national-populist legislative agenda that threatens the rule of law. This article offers a critical analysis of the mechanism contained in Article 7 TEU and the tools created by the European Commission within its New Framework, viewed through the prism of escalating violations of the rule of law in Poland, with particular focus on the destabilisation of the Constitutional Tribunal. It analyses whether such criticisms are justified and, if so, whether a more robust framework for addressing anti-liberal populism is required. We compare the EU's evolution into an organisation that protects individual human rights with its fledgling evolution into an organisation that seeks to police the rule of law. We argue that, in contrast to its successful human rights evolution, the EU's current efforts towards enforcing the rule of law give little cause for optimism.

Challenges to the Rule of Law in the European Union: the distressing case of Poland

Revista do Instituto Brasileiro de Direitos Humanos, 2018

The article analyzes the developments of the rule of law in Poland over last three years and discusses the current and possible future reaction of the European Union to a worrisome situation in one of its member states. It focuses on several questions. What are the reforms in Poland? Can the legal system defend itself against changes which are inconsistent with the Constitution? If not, why it retreated and ceased to be self-sufficient in this regard? What mechanisms of securing EU principles can be activated? How are they interrelated? To what extent have they already been used? Are they sufficient? These and other questions are raised in the light of the current situation in Poland. In its major part, the paper characterizes the action taken, and especially the legislative measures adopted by the ruling parliamentary majority. These measures lead to the de facto change of the system, incompatible with the current Constitution and the principle of the rule of law. The second part analyzes the instruments available within EU law in the context of Poland's membership in this supranational organization. (The paper is an advanced copy of an article published in No. 17/18 (2017/2018) of the Revista do Instituto Brasileiro de Direitos Humanos / Journal of the Brazilian Institute of Human Rights)

Can the EU Ensure Respect for the Rule of Law by Its Member States? The Case of Poland

2018

Sommario 1. Introduction.-2. Substantive grounds of the infringement procedure.-3. Preconditions for interim relief.-4. Provisional measures ordered and non-compliance scenarios.-5. Parallel developments under the Rule of Law Framework and Art. 7(1) TEU procedure.-6. Concluding remarks on the intertwined relationship between judicial and political remedies to ensure compliance with the EU fundamental values.

Poland and the European Commission, Part II: Hearing the Siren Song of the Rule of Law

2017

As Poland has careened away from the rule of law, the European Commission has struggled to work out its response. The new “complementary Recommendation” issued on 21 December 2016 gives the Polish government more time to address the Commission’s growing set of serious concerns, but it is already clear that the Polish government is using its extra time to further consolidate its constitutional capture.

EU Fundamental Values and Rule of Law Crisis : the Polish Case

This work aims to explore the significance of EU fundamental values and the legal mechanisms envisaged by Treaties for their defence. Alleged systemic breaches of latest years have seriously endangered the legal edifice of the European Union. Presumption of adherence to EU values, to which the Member States are committed, is nowadays at risk. Therefore measures are required to restore legality and safeguard Rule of Law at European Level. Against this background, it is our purpose to study the case of Poland. First, we will reconstruct the jurisprudential root of values entrenched in Article 2 of TEU while underscoring the "juridification task " of ECJ. In a later stage, we will present the set of instruments at the disposal of European institutions when confronted with the rule of law crisis. Ultimately we will describe the challenges set by Polish Authorities to the rule of law.

Poland and the European Commission, Part III: Requiem for the Rule of Law

2017

Last week, Poland stuck its thumb in the eye of the European Commission, again. Responding to the complementary Rule of Law Recommendation that the Commission had issued two months earlier, the Polish government asserted that everything the Commission had complained about had been fixed. Since the government had compromised the independence of the Constitutional Court by both packing the Court with a working majority of loyalists and installing a more politically reliable Court president, the Polish government explained that there is nothing left to fight about. The Commission addressed Poland with law, and Poland responded with opposing facts on the ground.

Unwilling or unable? Assessing the failure of the Rule of Law Framework and Article 7 TEU in Poland

2021

Since 2015 the Prawo i Sprawiedliwość (PiS) government in Poland has engaged in a process of rule of law backsliding, viz., it has eroded various forms of checks and balances in order to entrench itself in power. It has, inter alia, disabled effective judicial review, replaced judges in courts across the country, and introduced a disciplinary regime for recalcitrant judges. This process poses a threat to the very existence and functioning of the European Union: by controlling the judiciary, the regime can pick and choose which EU laws will be complied with. Such selective compliance undermines fundamental concepts upon which the very functioning of the EU’s legal order is based such as, inter alia, mutual trust, autonomy, and supremacy. However, despite this threat, the EU’s institutions have thus far been unable – or unwilling – to adequately resolve this crisis. By considering the implementation of the Rule of Law Framework and Article 7 TEU, this thesis will present four key less...

The EU's rule of law: work is needed,

The EU's rule of law: work is needed, 2021

One of the European Union's main values, the rule of law, is under severe pressure. The cases of Hungary and Poland, albeit not isolated, are certainly the most paradigmatic ones. The two eastern European countries, in fact, do not wish to leave the EU, but repeatedly challenge the EU's rule of law ideal by claiming that different interpretations of it are possible and that illiberal democracies can co-exist with liberal ones within the EU constitutional framework. The recent EU budget negotiations again brought the question into the spotlight with the so-called conditionality regulation, whereby Hungary and Poland are legally bound to accept an EU role in the rule of law and yet simultaneously attempt to restrict an EU role in the rule of law, via the European Council. These recent developments call for an analysis of the (evolution of the) principle of the rule of law in the EU, as well as an overview of how Hungary and Poland (in the meantime) have changed the actual situation of the rule of law domestically and of the strategies that the two countries have devised to further counter (legal) intervention by the EU.

How will the EU’s ‘rule of law’ investigation affect Polish politics?

2016

The European Commission is currently conducting an inquiry into judicial and media reforms introduced by the Law and Justice government in Poland. Aleks Szczerbiak analyses the way in which this investigation is going to affect the political dynamics within the country, and argues that the offensive against the ruling party’s policies may well prove to be a double-edged sword for the Polish opposition.