Poland and the European Commission, Part I: A Dialogue of the Deaf?

On 21 December 2016, the European Commission adopted an additional Recommendation regarding the rule of law in Poland, which it justified on two main grounds: important issues remained unresolved while ‘new concerns’ had arisen in the meantime (see press release; fact sheet and Recommendation).

The Commission’s new Recommendation again pressed its old demands that the Polish government publish and comply with the judgments of the Constitutional Tribunal as well as permit the judges lawfully elected by the previous parliament to be seated (see Recommendation of 27 July 2016). It detailed the continued campaign of the Polish government to undermine the legitimacy and efficiency of Constitutional Tribunal while seeking to seize control of it, and noted the unsatisfactory response Poland had already given to the original concerns the Commission had identified starting nearly one year ago when it activated for the first time its Rule of Law Framework. It added some new issues to the list, in particular, the unlawful appointment of a new president of the Tribunal. But rather than invoking Article 7 TEU which would start a process whereby Poland may be eventually sanctioned for violating the rule of law, the Commission merely reiterated its old demands, added some new concerns and again held out the threat of Article 7 while apparently moving no closer to actually starting a sanctioning process.

It is not that the Commission was unaware of what was happening in Poland. In December, the Commission stood by and watched the Polish government capture the Constitutional Tribunal. The new Recommendation indicates that the Commission simply chose not to act to head off the final stages of the Tribunal’s demise. By the start of 2017, the ruling “Law and Justice” Party (known by its Polish initials as PiS) had gained the Tribunal’s majority, passing the very laws that the Commission had urged the government not to pass ...

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