Poland has been given three months by the European Commission to put its legal house in order by restoring the independence of its judiciary. The milestone move by the commission marks an important and welcome affirmation by the union's executive that the EU is more than a single market, and that political union genuinely means a binding and enforceable shared commitment by member states to common, democratic values and the rule of law.
The commission on Wednesday found that there was “a systematic threat to the rule of law in Poland” in the changes made by the ultra-conservative ruling Law and Justice party (PiS) last December to the constitutional court. Five judges appointed by the previous government were sacked, the threshold for overruling legislative Acts by parliament was raised to two-thirds, and the government has sought to muzzle the court’s criticism of such acts. The government also engaged in a major purge of the state media.
Several months of shuttle diplomacy between Warsaw and Brussels have seen the Polish government make some changes to the court but the commission said these had not gone far enough. Vice-president Frans Timmermans insists that "our fundamental concerns are still unresolved". In particular, Timmermans says the Polish authorities must publish past judgments, implement the findings of the tribunal on the nomination of judges, and accept the judges previously appointed.
The commission’s move could ultimately lead to the suspension of Poland’s voting rights in the union under so-far-unused treaty provisions introduced in 2014. But it is a high-stakes gamble. If Warsaw, as appears likely, decides to call the commission’s bluff and refuses to make the changes, it knows it can rely on Hungary’s right-wing government of Viktor Orban to block such disciplinary measures (probably supported by the UK).
The danger is that in showing up the commission as toothless, Poland will end up undermining not only the rule of law domestically but that of the union as a whole. It should think twice.