The European Commission surprised many on Wednesday when it decided to formally scrutinize Poland’s moves to undermine judicial independence and media freedom. By triggering the EU ‘rule of law’ mechanism for the first time since it was created in March 2014, the commission sent a clear message that there are lines that, when crossed, will lead it to stand up to safeguard EU values.
The process allows the commission to challenge member states over “systemic threats to the rule of law” through dialogue, recommendations, and ultimately, if Poland does not act on Commission recommendations, sanctions that can include the suspension of voting rights.
The rule of law mechanism was created in response to a call from EU member states, the European parliament, and civil society groups for an enhanced EU capacity to address threats to its founding values, in particular concerns about Hungary’s authoritarian slide since 2010. While the rule of law mechanism fell short of civil society aspirations to create a sharp tool to tackle serious human rights abuses within the EU, it was an important step towards addressing the gap identified in the EU human rights action plan between the EU’s commitment to promote human rights in its external relations and its failure to take action to address human rights problems in its member states.
Many were skeptical that the rule of mechanism would ever be used. Some member states have expressed open opposition to it, and the commission has so far failed to apply it to Hungary, despite a call from the European parliament – a failure that arguably emboldened the new government in Poland. The commission’s emphasis on dialogue with Poland – even in the face of Poland’s defiant and obstreperous position – also raises concerns that the mechanism will end up being a blunt instrument.
Nonetheless, the commission’s decision to activate the mechanism is an important step and should serve to keep up the pressure on the Polish government and help those inside Poland pressing for reform.
The commission has said it will rely on the views of the Venice Commission, an expert advisory body of the Council of Europe, which is due to issue an opinion in early March on Poland’s problematic changes to the Constitutional Tribunal. Hopefully it will also help create more space for civil society groups that face an increasingly hostile environment in Poland. For the commission’s monitoring exercise to be meaningful, it needs to involve these groups in the process. The commission should also look again the situation in Hungary and consider activating the rule of law mechanism there.
All actors should keep their eye on the ball: meaningful change in Poland to ensure a functioning Constitutional Court that can serve as a check on executive power, and media pluralism that allows for unfettered freedom of expression and democratic debate. The commission should settle for no less.