A question of values

European Commission’s increasing tense relationship with Poland on human rights and rule of law

The decision by the European Commission on Wednesday to send a formal protest "opinion" to Poland marks a serious escalation in the tussle between the two over what Brussels sees as Warsaw's breach of EU human rights and rule of law norms.

It is the first part of a three-step process provided for in the latest EU treaty (Article 7) under which a member state can ultimately be deprived by its fellow members of its vote in the Union if found to be in serious persistent breach of EU values.

The procedure has not yet been used and it is widely seen as a "nuclear option" that the Commission will be reluctant to set in train. Moreover, a vote on such a sanction would have to be unanimous and, as Hungary will support Poland, such a move by the Commission is unlikely to succeed. Warsaw has two weeks to respond before any further decisions are taken by Brussels.

The confrontation is focused on the decision late last year, in the wake of a general election, by the incoming conservative nationalist government of the Law and Justice Party (PiS) to reject nominees from the previous parliament to the top constitutional court and to appoint its own members.

It has also pushed through new rules governing the court’s operation that are widely seen as an attempt to dilute its function as watchdog over the government. The latter has defended its actions on sovereignty grounds and argued that it draws its authority from Polish voters rather than officials in Brussels.

Domestically PiS also faces considerable pressure with substantial demonstrations on the streets against the changes to the court – seen, polls say, by 53 per cent of the population as illegal – and far-reaching curbs on freedom of the media, particularly the state sector.

Commission First Vice-President Frans Timmerman has been involved in shuttle diplomacy with Warsaw and its Prime Minister Beata Szydlo. Her dismissive response that "an opinion is an opinion, and it doesn't have any influence on decisions being taken in Warsaw" suggests a compromise may not be easy.