UPDATE 02/06/2016: On Wednesday 1 June 2016, the EU Commission issued an official warning to Poland over recent changes to its constitutional court. The warning was the result of an investigation launched by the Commission in January, and is the first time that the so-called “rule of law framework” has been deployed since it was set up in 2014. Poland’s justice minister, Zbigniew Ziobro, has compared the Commission’s investigation to the occupation of Poland by Nazi Germany.
Poland now has a “reasonable time” to respond to the Commission’s opinion. If the government fails to respond satisfactorily, then the Commission may issue recommendations for specific steps it wants taken. The matter can then be passed over to EU leaders.
However, it is unlikely that Poland will face serious sanctions. Stripping Poland of its voting rights in the EU can only be agreed unanimously by all other EU Member States, and Hungary’s prime minister, Viktor Orbán, has already ruled out the possibility. So, what happens now? Are the Brussels and Warsaw caught in a stalemate? How can the situation be resolved?
ORIGINAL 22/02/2016: Are democratic standards sliding in some EU Member States? In 2015, the newly-elected Polish government made a series of controversial changes to the working of the country’s media and judiciary. Critics argue that the new law has effectively neutered Poland’s Constitutional Tribunal as it imposes a requirement of a two-thirds majority on rulings, as opposed to a simple majority.
In addition, the law extends the delay before the court can rule on a case from a fortnight to six months (or three in exceptional cases). The tribunal is also now required to handle cases in chronological order of receipt (instead of prioritising certain cases), and judges can be dismissed from their post by a vote in the Sejm, the Polish parliament.
The ruling Law and Justice Party argues that the changes are necessary to curtail undemocratic interfering from the court. Despite strong economic growth since Poland emerged as a democracy from under the Iron Curtain, many ordinary Poles feel dissatisfied with growing inequality in the country.
Nevertheless, we had a comment sent in from Sebastien, arguing that countries violating European democratic standards should be sanctioned (for example, by removing their voting rights in the Council).
To get a response, we spoke to Cecilia Wikström, a Swedish MEP who sits with the liberals in the European Parliament. How would she respond to Sebastien’s suggestion?
When you become a member of the European Union you have to fulfill the so-called Copenhagen criteria, part of which is upholding Article 2 in the treaties. In other words, you have to uphold fundamental rights, rule of law, democracy, and so on and so forth. But if you breach those values there is no practical way of sanctioning you at the moment. There is, of course Article 7 in the treaties [which allows the suspension of rights, including voting rights], but that requires a unanimous vote among the Member States, and you will never get that. It’s absolutely impossible to get.
So, yes, Sebastian is right. We should forsee a situation where we actually have a mechanism that monitors member states annually, and sees whether they are in compliance of Article 2 of the treaties or in breach. And if they are in breach, it should really cost. I fully support that idea…
On the other hand, we also had a comment sent in from Ironworker, asking whether it shouldn’t be up to majority of voters in a given country to decide what democratic rules they want to follow. He argues that foreign interventions in the democratic workings of an EU Member State are completely unacceptable.
We spoke to Rebecca Harms, a German MEP and Co-Chair of the Group of Greens / European Free Alliance. What would she say?
All governments have a mandate based on their majorities, so normally if citizens are not satisfied then at the next election they don’t support the government. That is one part of the picture. The other part of the picture is that Poland is part of the European Union, which means it must subscribe to European values, which should also be based on common norms concerning what rule of law means and when a given political development is in conflict with the rule of law and norms of democratic states.
This is a very difficult, because the democratic systems of the Member States are different and were created in different contexts. However, based on our negative experience and our discussions with Hungary, we have created for the EU a new instrument – the famous ‘Rule of Law Mechanism’. So, because we have seen similar developments in Poland as in Hungary, we have activated the mechanism and an investigation will take place. We should wait until the results of that investigation have been published.
Finally, we had a comment sent in by Alexandru, arguing that the rise of so-called “illiberal democracies” was due to the lack of a strong European identity and an agreement on what “democratic values” should actually look like.
To get a reaction, we spoke to Aleks Szczerbiak, Professor of Politics and Contemporary European Studies Director of Doctoral Studies in Law, Politics and Sociology at the University of Sussex. How would he respond?
The central problem is that within the scope of what people would call a ‘liberal democracy’, there’s actually a huge amount of variety and debate. We’re often talking about questions that are highly contested, where there are different models and systems even within so-called liberal democracies.
If you have a country that obviously does not meet democratic standards, then it’s easy. But when you have a debate about different choices that arguably can be made within a liberal democracy, or the extent of that liberalism, then that’s when the problem starts. Because it then assumes, firstly, that there is a single model of liberal democracy for those in the European Union, and, secondly, that it’s the Commission and the European institutions that should determine what that should be. Both of these are, obviously, highly contested notions.
Should Poland’s EU voting rights be suspended? Are democratic standards sliding in some EU Member States? Let us know your thoughts and comments in the form below, and we’ll take them to policymakers and experts for their reactions!