EU Initiates Infringement Proceedings Against Poland

Poland’s President Andrzej Duda surprised many when he vetoed two out of three controversial laws aimed at reforming the judiciary tabled by his own party, Law and Justice (PiS). Duda’s rejection of the laws marks his first break with PiS’s radical agenda since his election in late 2015. His decision may well have been influenced by louder-than-usual rumblings in Brussels, where EU officials have been issuing warnings to the Polish government, almost since the day it took office in 2015. Poland has also been gripped by nationwide protests against the government’s reform agenda.

The laws are part of a far-reaching legal overhaul by PiS that triggered days of protest across Poland. The most radical measures proposed by PiS would have removed all serving Supreme Court judges immediately, except those approved by the Justice Minister, who is also the Prosecutor General. Another law gave Parliament the power to name a majority of the members of the National Council of the Judiciary, the body responsible for nominating Supreme Court candidates. Not surprisingly, critics saw both measures as a thinly-veiled power grab by PiS, which currently holds a majority in both houses of Parliament.

The EU, long sceptical of the Polish government’s judicial reforms, warned last week that should any Supreme Court judges be removed from office, the Commission would immediately initiate sanction proceedings under Article 7 of the EU Treaty. The EU’s ‘nuclear’ option – suspending a member state’s voting rights – has never been used before, although it has, in recent years been brought up as a means to call out illiberal regimes, such as those currently in Poland and Hungary.

However, using Article 7 could open a can of worms, and presents its own set of technical and political difficulties, and few observers believe it is likely to be initiated. In order to issue even a formal warning, four-fifths of EU member states need to vote in favour, while a full suspension of voting rights would require unanimity, and Hungary’s Prime Minister Viktor Orbán has promised to veto any such initiative.

In a clear sign that it will not turn a blind eye, on July 28 the EU issued a clear warning by initiating infringement proceedings against Poland. As ‘guardian’ of the EU treaties, the Commission has the power to commence infringement proceedings whenever it considers that a member state has breached EU law. In Poland’s case, the proceedings concern President Duda’s approval of a law on the ordinary courts, giving the Justice Minister the power to hire and fire judges, and which introduces different retirement ages for men and women, a clause the Commission considers to be at odds with EU rules on gender discrimination.

Unlike Article 7, the Commission does not require member state approval to initiate infringement proceedings. Should Poland refuse to comply with the requests of the Commission the matter could be brought to the EU Court of Justice, which could, in turn, impose hefty daily financial penalties. This method was successfully used against Hungary in 2012, when its government attempted to force judges into retirement.

With that said, it is clear that the Polish government’s authoritarian tendencies must be curbed. However, the question of how to achieve this goal remains. Given the huge benefits Poland has drawn from EU financial aid since its accession in 2004, and given the successful imposition of financial penalties against Hungary in 2012, infringement proceedings would seem to offer the best solution.

Article 7 on the other hand is more difficult to initiate, and is more likely to backfire. Part of PiS’s success lies in its trumpeting of Polish disenfranchisement and victimhood – earlier at the hands of imperial European powers, then from the Nazis and Communists. Today, Poland has been played by ‘liberal elites,’ ‘homo-lefties,’ and ‘treacherous murderers’ – a line used against the opposition Civic Platform (PO) referring to the Smolensk airplane crash that killed party boss Kaczyński’s twin brother (and then President), Lech.

Officially-sanctioned delusions inform PiS’s approach to government. The EU ganging up on Poland at this point would only strengthen PiS and its Catholic hard core of supporters. However, if the Commission was to impose financial penalties, it might find the Polish government suddenly becoming more reasonable.