EU could freeze Polish voting rights over judicial independence

The European Union could freeze Poland's voting rights unless it changes course and agrees to stick to the rule of law, European Commission Vice President Jyrki Katainen said on Monday.

Frans Timmermans, the first vice-president of the European Commission, accused Warsaw of seeking to put judges under full political control as he warned that the EU was “very close” to triggering Article 7, a never-before-used sanction in the treaties that allows a member state’s voting rights in the council of ministers to be suspended.

Poland’s ruling rightwing Law and Justice party (PiS) has been in almost constant conflict with the European Commission since it was elected. In recent weeks the Polish government has proposed a series of reforms that would give ministers power over the appointment of judges and members of the country’s supreme court.

Under a proposal put forward by Poland’s PiS-aligned president, Andrzej Duda, appointments to the National Council of the Judiciary would require a three-fifths majority in parliament, rather than a simple majority as contained in the present legislation, meaning that as parliament is presently constituted, Law and Justice would not be able to appoint judges by itself.

But under Duda’s proposal a coalition of Law and Justice and affiliated rightwing parties would still be able to push through appointments to the body. The supreme court legislation before parliament envisages “silent consent” for judicial appointments should the KRS not express a view within 14 days, meaning that a paralysed council would still give the justice minister the power of appointment over the supreme court. 

Poland could in theory be stripped of its EU voting rights if all other 27 member states saw fit, although Hungary, which also has a right-wing government that bristles against interference by Brussels, has said it would veto such a move.

But EU officials have said they feel they would have to at least attempt a vote if Poland does not back down over curbs on the media and changes to the constitutional court.

"We cannot make compromises on the rule of law. You either follow the rule of law or you don't. If you don't, then Europe cannot stay quiet," Katainen, a former prime minister of Finland, said in an interview.

The first step in the EU triggering Article 7 is an assessment of whether there has been a breach of fundamental rights, which could be launched as early as next week on the recommendation of the commission. “What we decide next week depends on developments also this week,” Timmermans said, as he called for fresh dialogue with Warsaw.

Should a breach of fundamental rights be found, a motion to suspend Poland’s voting rights would then need to win the support of member states under the EU’s system of qualified majority voting. Two-thirds of the European parliament would also need to give its consent.