The European Commission on Wednesday (December 20) triggered ‘Article 7’ disciplinary measures against Poland in an unprecedented move aimed at defending judicial independence in the country.
The decision came amid judicial reforms, which have put the country’s justice system “under the political control of the ruling majority,” the European Commission said in a statement.
The body added that it had tried for almost two years to engage Polish authorities “in a constructive dialogue” and was taking the action to “protect the rule of law in Europe.”
“In the absence of judicial independence, serious questions are raised about the effective application of EU law, from the protection of investments to the mutual recognition of decisions in areas as diverse as child custody disputes or the execution of European Arrest Warrants,” the statement said.
But what is Article 7, how could it affect Poland, and what could the country do to escape punishment?
What is Article 7?
Article 7, often dubbed the "nuclear option", is the EU’s punishment clause, allowing it to discipline member states when there is a “clear risk of a serious breach” of the bloc’s core principles.
Until today, it had never been triggered.
How does it work?
A proposal to trigger Article 7 can be brought forward by the European Parliament, the European Commission or by one-third of member states.
The European Council, with the consent of the European Parliament, must then reach a four-fifths majority decision on the proposal, and speak to the state in question.
Once adopted, the measure has two parts—a preventative mechanism and a sanctioning mechanism.
Article 7(1), as triggered by the European Commission on Poland, would see a formal warning given to the country accused of violating fundamental rights.
If this doesn’t have the desired effect, Article 7(2) can be used to impose sanctions and suspend EU voting rights.
Poland is being targeted because of a series of reforms that the European Commission says have compromised the independence of the judiciary.
In its statement, it cited 13 laws adopted over a two-year period that it said had affected “the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary.”
“The common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch,” it explained.
Among the biggest concerns cited by the Commission was the retirement regime imposed by the law on the ordinary courts, under which female judges must retire at 60, while male judges can continue working until 65.
Other issues included an extraordinary appeal procedure under the Supreme Court law, under which final judgements taken years earlier can be re-opened, and discretionary powers awarded to the Minister of Justice to prolong the mandate of judges.
What does Article 7 have to do with judicial reforms?
In its statement, the European Commission explained that rule of law is “one of the common values upon which the European Union is founded.”
“It is up to Poland to identify its own model for its justice system, but it should do so in a way that respects the rule of law; this requires it to safeguard the independence of the judiciary, separation of powers and legal certainty,” it said.
It added that a breach of the rule of law in one member country would have a negative effect on the entire EU.
What can Poland do now?
The European Commission has urged Polish authorities to address the problems within three months.
A Rule of Law Recommendation adopted on Wednesday sets out a series of actions that need to be taken by Poland to address its concerns.
These include restoring the independence and legitimacy of the Constitutional Tribunal, not applying a lowered retirement age to current judges and refraining from public statements that could “further undermine the legitimacy of the judiciary.”
The Commission says it “stands ready to pursue a constructive dialogue with the Polish government,” and is prepared to reconsider its Article 7 proposal.
Taking to Twitter, EU Commission First Vice-President Frans Timmermans said he continues "to hope that we can enter into a more fruitful dialogue" with Poland.