Dr. Niels Kirst (Dublin City University)
On 6 May 2024, the European Commission (Commission) announced its intention to close the Article 7 (1) TEU procedure against Poland. This is significant as it marks the end of many years’ struggle between the Commission and Poland over the rule of law. According to the Commission, “there is no longer a clear risk of a serious breach of the rule of law in Poland within the meaning of Article 7 (1) of the Treaty on European Union.” After six years of ongoing dialogue, negotiations and Council hearings, the experiment to safeguard the rule of law in Poland via the politically charged Art. 7 procedure has ended – or shall we instead say it failed? In any case, it marks a substantial development in the ongoing tensions between the European Union (EU) and Poland over the rule of law. This blog analyses the background of the Art. 7 procedure and the reasons behind the Commission’s decision to close it, and provides an outlook on the future of the rule of law in Poland and the EU.
It was the Commission that initiated the Art. 7 procedure against Poland in December 2017 due to concerns over domestic judicial reforms that undermined the independence of the judiciary and the rule of law in Poland. These reforms included changes to the Polish Supreme Court’s composition and judges’ retirement age, among others. Since initiating the procedure, the Commission has engaged in dialogue with Polish authorities to address the concerns raised. However, slow progress has led to ongoing tensions between the EU and Poland. The situation was further complicated by Poland’s legal challenges to the primacy of EU law and the jurisdiction of the Court of Justice of the European Union (CJEU), which eventually led the Commission to initiate an infringement proceeding against Poland in February 2023.
What is the Art. 7 TEU procedure and why is it important? During the Amsterdam Treaty reform, the Art. 7 procedure was inserted into the Treaty to prevent Member States from backsliding on the EU values enshrined in Art. 2 TEU. It has been dubbed as the nuclear option of EU law by former Commission José Manuel Barroso. Legally, the procedure outlines mechanisms to address value breaches by Member States. It consists of two distinct procedures: Art. 7 (1) TEU, which focuses on preventive measures, and Art. 7 (2) TEU, which deals with sanctions for serious and persistent breaches. Art. 7 (2) can, in theory, result in a Member State’s membership and voting rights being suspended. However, the procedure has never reached the stage of Art. 7 (2) – neither in the case of Poland nor in the case of Hungary (in which the proceeding is still ongoing). Procedurally, the Commission has now informed the Council and the European Parliament (EP) of its intention to withdraw its Reasoned Proposal from 2017, thereby closing the Art. 7 (1) procedure. It is expected that the procedure will be fully closed in May 2024.
The Commission’s decision to close the Art. 7 procedure against Poland is not so much the result of its success but rather the result of domestic political changes in Poland over the last six months. In October 2023, the alliance of Civic Coalition won the parliamentary elections for the Sejm (the Polish Parliament), and Donald Tusk (yes, the former European Council President and Von der Leyen’s fellow member of the EPP group) could form a coalition government and become new Polish Prime Minister. With this development, it became clear that previous reforms at odds with the rule of law would be reversed, which ultimately could pave the way for Poland to be released from several rule of law mechanisms at EU level.
Swift actions on the Polish side followed. In February 2024, Poland presented its Action Plan for restoring the rule of law to the General Affairs Council. Moreover, in February 2024, Poland joined the European Public Prosecutors Office (EPPO), a long-sought demand by the Commission. Adopting a clear Action Plan, joining the EPPO and the fact that Poland took the first concrete steps to implement it, together with the Polish acknowledgement that rule of law backsliding needs to be addressed, swayed the Commission’s assessment on Art. 7. Earlier this year, the Commission had already unlocked €137 billion of frozen EU funds under the Common Provisions Regulation and the first tranche of the Next Generation EU Fund (NGEU) under the RRF Regulation. Thus, the closing of the Art. 7 procedure was a logical next step.
So, was the presentation of an Action Plan enough to close the Art. 7 procedure? Apparently, yes. Clearly, the rule of law backsliding in Poland over the last 9 years cannot be restored in just six months. Most importantly, many envisaged reforms face a veto by Polish President Andrzej Duda, an ally of the previous government who was closely involved in their “judicial reforms”. Therefore, the Commission’s decision to close the Art. 7 procedure is a decision in anticipation of future changes. It can only be hoped that the Commission is equally swift in the case other Member States showing signs of rule of law backsliding – . If the Commission were to follow its logic of anticipating future changes, it would commence an Art. 7 (1) procedure against the Slovakian Fico Government equally swiftly. (The previous sentence was written before last week’s assassination attempt on Robert Fico, the Slovakian Prime Minister. Since then, there has been no indication of a change in the government position, as some ministers have continued to attack the media and the opposition.)
Overall, the Commission’s decision to close the Art. 7 procedure for Poland has sparked a mixed reaction. On the one hand, it can be seen as a positive step towards resolving tensions with Poland; on the other hand, it can be seen as a missed opportunity to hold Poland accountable for past rule of law violations. Moving forward, it remains to be seen how Poland will uphold its promises and commitments in its Action Plan and how the EU will monitor and support this process.
The closing of the Art. 7 procedure against Poland represents a significant milestone for a democratic Poland and an admission of failure for the Commission’s rule of law toolbox. In 7 years, the Art. 7 procedure achieved nearly nothing in Poland while the Commission was sitting on the sidelines watching the continued rule of law backsliding in the Member State. Fortunately, the new Polish government has vocally committed itself to reverse this process and restore the rule of law in Poland. Ultimately, as with the previous decision to release frozen funds to Poland, this decision might be politically motivated by a political Commission President seeking to secure her reelection bid. Ursula von der Leyen needs Polish support in the EP elections, and Donald Tusk needs money from the EU. Therefore, closing the Art. 7 procedure against Poland is a political transaction, which will hopefully not impede or discourage the ongoing positive developments in Poland.
Dr. Niels Kirst is Assistant Professor of European Law at the School of Law and Government at Dublin City University and Deputy Director of the DCU Brexit Institute. His research interests lie in the area of rule of law, the Court of Justice, Brexit, competition law, legal technology, trade law, foreign affairs and geopolitics.