EU/Poland: Trigger-happy Commission is set for its next defeat

sheriff timmermansThe new year has not started well for the European Commission. Unable to offer workable solutions for the Union’s real problems, such as the migration crisis or the Euro, the EU’s executive is instead starting a public dispute with the government of a major Member State, Poland, over some minor issues on which, it appears, a proper analysis remains to be made. This will certainly not reduce Euroscepticism, be it in Poland or elsewhere; instead, one might get the impression that for the Commission the “rule of law” principle means that democratic elections should not have any practical impact on a country’s policies: the defeated elites should be allowed to remain in power…

Sadly, it all seems to confirm the old suspicion that the EU’s elites have a problem with a thing that it called “democracy”.

According to media reports, the European Commission’s decision to launch its new “rule-of-law mechanism” is the first time that the Commission is using this new procedure. That is certainly true, but rather than telling you something about the (alleged) gravity of the situation in Poland, it tells you something about the new procedure. This new procedure is not the procedure under Article 7 of the EU Treaty, which might ultimately lead to a suspension of Poland’s voting and other membership rights. Instead, this is a new procedure that, having created by the Commission motu proprio suo, is committing nobody but the Commission itself. It consists of the Commission writing (more or less substantiated) letters to the Polish government, and, in the ideal scenario, the Polish government replying to those letters. In the less ideal scenario, the Polish government might even choose not to respond, because it isn’t obliged to. This would be rather humiliating for the Commission, which would then face the alternative of either discontinuing the show without any follow-up, or trying to persuade Member States to use the “nuclear option” of a full-fledged Article 7 procedure against Poland. But if one thing is certain, it is that Member States will not support the Commission in this – at least not unless the Polish government committed some really serious human rights abuses (such as those committed by Yugoslavia in the early 1990s, which led to the country’s suspension from the Council of Europe).

In other words, the new procedure is a rather ceremonious letter-writing exercise with the purpose of giving the public the impression that the Commission is wielding real power, when in actual fact it doesn’t. But when one doesn’t have the power to fight a conflict through to the end, one should be even less trigger-happy than if one really had that power. As things currently stand, Commission Vice-President has needlessly manoeuvred himself into an awkward position in which he will need the kind co-operation of that new Polish government which, for its socially conservative views, he so very much loathes.

We cannot but hope that the Polish government will handle this situation wisely, perhaps as wisely as the Austrian government under Chancellor Wolfgang Schüssel handled a similar situation back in 2000. The responsible reaction would be to de-escalate and build a golden bridge for the Commission to find its way back to normal discussion mode, answering politely to all criticism and displaying openness to discuss. This does not mean that any substantial concession must be made; indeed it is from the outset very unlikely that Poland will budge as much as an inch. Poland’s minister for European affairs, Konrad Szymański, a former MEP, definitely has set the right tone when he said that his country was “pleased to see that the Commission was interested in a good dialogue with Poland” and that “further explanations and information that may be needed to understand the situation in Poland” would be provided. One can always try to help others to understand what they find difficult to grasp.

Prime Minister Beata Szydło’s statement in the Sejm today, denouncing “slanders from abroad”, were somewhat less adroit – smacking of hysteria and defensiveness, it gave the impression as if she were attaching much more importance to the Commission’s allegations than they deserve.

On substance, the concerns set out in the letter that Commission Vice-President Frans Timmermans, a man of very limited diplomatic skills, has sent to Poland’s Minister of Justice Zbigniew Ziobro (he also a former MEP), appear to be rather weakly argued.

With regard to the ongoing discussions around the composition and procedure of the Constitutional Tribunal, the letter on the one hand “appreciates the explanations given” by the Polish Government “concerning the constitutional customs in Poland regarding the nomination of judges”, but at the same time builds its cases solely on the fact that “the binding and final judgments of the Constitutional Tribunal have not been implemented”. So, is the Commission now the supreme instance charged with the enforcement of decisions of domestic constitutional tribunals? What if, such as in Germany, a series of different governments have completely ignored, for more than 20 years, a decision of the Constitutional Court requesting them to formally assess whether the existing law on abortion provides sufficient protection for unborn children and, if necessary, revise that law? Strangely, this was never a reason for the Commission to express any concern – yet what is at stake there is thousands of human lives every year. Likewise, the German Bundesverfassungsgericht has issued a series of judgments obliging the Federal Government to urgently take action to end the fiscal discrimination of families with children. These judgments were never heeded by any of the subsequent Federal Governments – but where was the Commission during all those years? Clearly, if the Commission wants to assume the role of a universal law enforcer, it would have a lot to do, not only in Poland.

Besides this, the Constitutional Tribunal, in a decision adopted on 7 January, has itself acknowledged, that the constitutional review of Parliamentary resolutions concerning the revocation of previous appointments (made in advance by the outgoing Sejm) and new appointments of constitutional judges was beyond his competences. It appears thus that the judgments that the Commission wants to enforce are by now outdated.

With regard to the new procedural rules that the Polish government is seeking to impose on the Constitutional Tribunal one might indeed, as we have done in a previous post, question their wisdom. However, a rule that decisions on the unconstitutionality of a law must be adopted in plenary is as such not at all unusual – a comparison will reveal that that same principle is applied in many, perhaps even the majority of, Member States’ constitutional courts. Regarding the requirement of 2/3rds of votes for a decision to rule a law unconstitutional, a comparison with the rules existing elsewhere would be equally commendable, but it does not seem that the Commission has actually conducted such a comparison – which makes its concerns appear rather unfounded. In any case, there does not appear to exist a binding EU standard for the organization of constitutional courts, so that one may wonder on which legal basis the Commission’s action are founded. Abstract concerns over “the rule of law” are rather too vague to justify any legal or political action against a Member State’s democratically elected government.

But while the issues around the Constitutional Tribunal at least clearly do have a bearing on the rule of law, this is not the case with the other concern raised by the Commission, the staffing of the state-owned TV channel. The very characteristic of a State-owned broadcasting corporation is that it is controlled by the government – and it is so in all Member States. The public has no illusion about this. But fortunately, in countries where there is media pluralism, people can turn to other sources of information. There is no legal standard in the EU according which state-owned broadcasting companies must be independent of the respective government, or that the government should not have an influence in appointing such a broadcasting company’s management. The only EU standards that are applicable in this field refer to state aid rules, imposing restrictions on state-owned broadcasters with regard to the amount of advertisement, and requesting them to fulfil a cultural mission. These rules exist to even out the competitive advantages they enjoy with regard to private-owned broadcasters.

Again, the allegations in Commissioner Timmermans’s letter remain completely unsubstantiated – it just says that the new media law “raises issues” (which???) “relating to freedom and pluralism of the media”. Apparently the Commissioner is mixing up the issue of media pluralism, which essentially has to do with the possibility for everyone to publish his news and views or with the existence of a wide variety of different media outlets from which the public can choose, with the issue of who controls the state media, focusing exclusively on the interest of a narrow group of rather left-leaning journalists to enjoy their (larger-than-average) possibility to promote their views in public without being disturbed by a change in government. But that is not the same thing. If the Commission is seriously concerned about media pluralism, then it would be commendable to launch a broader inquiry into the situation in all Member States rather than starting an ad hoc procedure against Poland. Ultimately the question is whether state-run broadcasting companies are not as such an anachronism. In the US, for example, such institutions do not exist – and even in the EU no country is obliged to maintain them.

In short, if the Commission believes to have a sound case against Poland, it should initiate infringement procedures under Article 258 TFEU. But the content of Commissioner Timmermans’s letter of today is rather apt to make one believe that no such case exists.

Both sides, but in particular the Commission, would be well advised to tune down the hysteria. With all the other challenges the EU is currently facing, this new conflict is superfluous.