The EU’s Use of Article 7 against Poland: Rule of Law or the Laws of Rule?

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Having narrowly won the October elections, the Polish government, lead by the right-wing Law and Justice Party now faces yet another challenge as it is taken to the European Court of Justice over its controversial legal reforms. The reforms in question allow Polish judges to be investigated and sanctioned for their court rulings, thus potentially compromising the impartiality and transparency of Poland’s legal system. As a result, the EU has invoked the ‘nuclear option’ of Article 7 against Poland. This infringement procedure is designed to curb human rights abuses within the EU, threatening member countries that do not comply with a suspension of their voting rights within the bloc. 

The political significance of Article 7 is undoubtedly increased by the fact that, despite its creation 16 years ago, it has never before been used. However, the possibility of its invocation in the region has been lingering for some time. In 2015, Amnesty International released a report that demanded that the EU use Article 7 against Hungary for violating the 1951 Refugee Convention by criminalising migrants that illegally crossed its borders. Although the European Parliament did make motions to trigger sanctions against Hungary, the proposal to use Article 7 was eventually rejected by the Parliament’s Civil Liberties, Justice and Home Affairs Committee. Despite this failure in Hungary, the use of Article 7 in Poland seems to exacerbate the political and ideological divides between the region and the EU’s centralised governing apparatus, divides that have grown dramatically within the decade. 

Poland and Hungary have enjoyed friendly relations for some time. As both countries gained independence following the fall of communism in Europe, they became founding members of the Visegrad Group: a political alliance of central European countries that share a belief in common cultures and intellectual values. Indeed, these shared intellectual values were apparent during the migrant crisis as both countries defied the EU’s demands to rehabilitate migrants. In 2018, Polish prime minister Mateusz Morawiekci visited his Hungarian counterpart Viktor Orban in Budapest where they agreed to resist the immigrant quotas assigned to them by the EU and to veto any attempt for Brussels to enforce them in either country. This political alliance proved effective as it exploited the EU’s reliance on consensus to launch legal action. Neither Hungary nor Poland could be targeted for EU sanctions when defending each other as EU members themselves. Together, these states effectively rejected the EU’s migration policies, contributing to a conservative shift in European refugee policy that persists to this day.  It is possible, therefore, that the EU’s renewed push against Poland’s legal system via its use of Article 7 may be an attempt to re-establish some lost authority over the country or even the region as a whole. In this way, Brussels would be able to demonstrate that EU membership entails not only adherence to its laws, but also tangible costs should states deviate from them. 

Considering its history of political disputes in the region, it is of little surprise that the EU has powerful incentives to uphold its values there using every means at its disposal. Furthermore, the EU may be similarly motivated by the significant criticism it has received in the past for allowing legal and human rights violations to occur. For instance, the EU was widely condemned for its relative inaction regarding the vast anti-corruption protests that took hold in Romania in 2019, refusing to launch substantive action when the Romanian government attempted to decriminalise petty corruption of public officials. When Romania’s most senior anti-corruption prosecutor, Laura Kovesi, was controversially sacked from her government position, the EU proved unable, or unwilling to address the issue. It is notable then that when it came to deciding the head of the new European Public Prosecutors Office in September 2019, Kovesi was appointed for the position. 

Placing Kovesi - an experienced and highly influential anti-corruption prosecutor – in the centre of disputes about the future reach of EU power, sends a clear message to those member states who challenge Brussels’ stance on rule of law: states may wish to domestically tolerate illegality, but the EU, and the powers of the European Parliament, will not. Moreover, it is possible that this decision may also be designed to placate some of the criticism that the EU has been ineffectual in addressing previous legal violations by its members. The developments in Poland and in Brussels therefore highlight a renewed and concerted EU effort to more strongly address violations of the rule of law in Europe, symbolically demonstrating the EU’s values while simultaneously compensating for perceived shortcomings in the past.

By understanding the EU’s use of Article 7 against Poland in its historical and political context, it is possible to uncover a range of underlying dynamics at the heart of contemporary conflicts within the union itself. Faced by the rise of right-wing, populist governments in central Europe, Brussels has previously been ineffective at addressing the defiance of its policies and values. Its failure to enforce migrant quotas in Hungary and Poland highlights not only the weaknesses in its consensus-based approach to legal enforcement, but also growing ideological divides between its centralised governance and some member states. Furthermore, its inability or reluctance to address corruption in Romania arguably showed a temporary wavering in commitment to its value in the rule of law. However, the invocation of Article 7 in Poland demonstrates the EU’s determination to adopt a stronger and more effective stance towards these issues. 

The outcome of this use of Article 7 will likely be unclear for some time. It is possible that the EU’s reliance on consensus may once again prevent this action taking place if other member states, such as Hungary, choose to defend the Polish government. What is clear though is that this legal dispute is the manifestation of long-running political and ideological conflicts within the EU, the results of which have the potential to dictate both the future trajectory of both EU policies and the extent of the power Brussels has to enforce them. The problem for the EU no longer seems to be the threat of countries leaving, but what they choose to do when they are in it.