Rule of law: European Commission opens treaty infringement procedure against Poland

The European Commission has been negotiating with the Polish government regarding controversial laws on justice reform since the end of 2015. Now that it has fully exhausted the framework for strengthening the rule of law, the dispute has escalated further with the opening of a treaty infringement procedure in July 2017. The outcome is uncertain.

The Polish social partners together with the leading European association BUSINESSEUROPE have also become involved in the discussion. In a joint position paper, they have criticised the fact that the reform could have negative consequences for Poland’s attractiveness as a destination for international investments.

With the opening of a treaty infringement procedure in accordance with article 258 TFEU (Treaty on the Functioning of the European Union) at the end of July 2017, a new level of escalation has been reached in the dispute. The occasion for the dispute was the entry into force of two laws on the national college of jurisdiction and on a reorganisation of the normal courts: these enable the Polish justice minister to nominate and dismiss all judges working in ordinary courts, including appeal courts.

In September 2017, the second phase of the procedure was initiated and the Polish government was once more invited to take appropriate measures to settle the Commission’s legal objections. If the Polish government fails to take this notification seriously again, the Commission can bring in the European Court of Justice as a next step. At the same time, the Commission also reserves the right to activate the mechanisms provided for in article 7 TEU (Treaty on the European Union) directly in the event that a sudden deterioration requires a stronger reaction from the EU.

This last-resort procedure – at the end of which the Member State in question can lose its voting rights in the Council – has never been applied so far. However, it may possibly not come to this since the Hungarian Prime Minister Viktor Orbán announced at the outset that he would block the unanimity needed in the Council. Against this background, Viviane Reding, former Vice-President of the European Commission, has called for the EU Charter of Fundamental Rights to be revisited: it should apply to Member States not only for the application of European but also of national law. In addition, she proposes that it should be easier to stop the flow of EU funds to Member States which disregard the EU’s shared values.