Is the EU Commission’s Rule of Law Fight about Poland already lost?

von Maximilian Steinbeis

Today, the Polish Constitutional Tribunal celebrates its 30th birthday. The city of Gdańsk has invited to a major jubilee conference, with four former and one acting constitutional judge holding lectures and high-ranking guests expected from Europe: The President of the ECJ, Koen Lenaerts, will give an address, the President of the Venice Commission of the Council of Europe, Gianni Buquicchio, will attend, as will the presidents of the constitutional courts of several neighboring states. In the evening, a public panel discussion is planned.

A beautiful anniversary, no doubt: in the 30 years of its existence, the court has gained a lot of prestige all over Europe. However, there will be little mood for celebration in Gdansk today. For almost a year the court has been in a kind of state of siege. Three of the 15 judge positions are still unoccupied, two judgments unpublished, the authority of the court severely damaged. On 27 July, the EU Commission placed Poland under observation and issued a number of „recommendations“ on what the Polish authorities should do to ensure the level of rule of law required for EU membership. Otherwise, Poland is threatened with something no EU member state has ever had to face, not even Hungary: a sanctions procedure under Article 7 of the EU Treaty, which can culminate in the deprival of voting rights in the EU. Within ten days, Poland will have to deliver steps to implement the demands. The deadline set by the Commission expires on 27 October.

I’ve looked around in the last few weeks in Warsaw and talked to many people with first-hand insights in these matters. What do those who are fighting alongside the Constitutional Tribunal expect from this unprecedented „nuclear option“? What can Europe do to ensure that government and lawmakers in the 6th largest EU member state revert to obeying their own constitution? The answer: a shrug ...

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