For the first time, the European Commission has threatened to activate
the 2014 rule of law mechanism allowing it to monitor and act on “systemic
threats” to rule of law in EU member states.
The reason for the commission’s toughened stance is the new Polish
government’s moves to undermine judicial independence and media freedom.
In late December, two months after the nationalist Law
and Justice Party (PiS) won elections in Poland, the government rushed a law
through parliament that risks undermining the effectiveness of the
Constitutional Tribunal as a check on the executive.
The new law, signed by president Andrzej Duda of PiS
on 31 December, requires a two-thirds majority in the 15-member court, instead
of a simple majority, to block legislation.
The Helsinki Foundation for Human Rights, a leading
nongovernmental organization in Poland, has commented that the changes will
mean that “operations of Poland’s constitutional court will be blocked.”
President Duda also refused to swear in three judges
appointed by the outgoing parliament, instead swearing in five judges appointed
by the new PiS-controlled parliament.
The new government has also sought to bring the media
under its control, pushing through a law in parliament on 31 December allowing
a government minister to appoint and dismiss the supervisory and management
boards of public television and radio, thereby undermining guarantees for their
independence.
Brussels’ response to the unfolding constitutional
crisis in the EU’s sixth-largest member has been robust.
Frans Timmermans, the European Commission vice-president who leads on
rule of law issues, wrote twice to the Polish government in late December,
calling for a halt to the changes to the court until their impact has been
“fully and properly assessed” and stressing the importance of media freedom and
pluralism to the “common values on which the union is founded.”
The commissioner responsible for the media, Guenther Oettinger, has
called for Poland to be subject to supervision under the rule of law mechanism.
The state of the rule of the law in Poland is to be discussed when the
entire college of commissioners meets on 13 January.
The Polish government has rejected Brussels’ concerns, with foreign
minister Witold Waszczykowski defending the media law as necessary to “heal our
state of some diseases.”
The Council of Europe and Organisation for Security and Cooperation in
Europe (OSCE) have also raised concern about the risks to media freedom from
Poland’s new law.
Nils Muiznieks, the Council of Europe commissioner for human rights,
expressed concern with the lack of public debate and scrutiny of the media law on
5 January, saying that arrangements giving government officials the power to
appoint and dismiss the boards that oversee public broadcasters “contradict
Council of Europe standards,” and calling on Poland’s president not to sign it.
Thorbjorn Jagland, the Council of Europe secretary-general, on January 5
sent a letter to president Duda, stating worries about the impact of the new
law on public service broadcasting on the integrity and independence of public
service media and asking the president to consult with Council of Europe
freedom of expression experts before taking any action on the law.
The OSCE representative on media freedom, Dunja Mijatovic, expressed
deep concern about the media law on 30 December, saying that she feared it
“will endanger the basic conditions of independence, objectivity and
impartiality of public service broadcasters.”
President Duda signed the media law on 7 January, notwithstanding those
concerns.
The hardened line from the European Commission is in stark contrast with
its weak approach toward similar problems in Hungary.
Prime minister Viktor Orban’s Fidesz government, which until 2014 had a
supermajority in parliament, has led the way in undermining the rule of law and
media freedom since it came into power in 2010 - measures that met with minimal
action at best by the commission.
PiS party leader Jaroslaw Kaczinski, an admirer of Orban’s self-styled
“illiberal democracy,” in October 2011 publicly stated that he wants to “bring
Budapest to Warsaw.”
Observers in Warsaw will be well aware that Hungary’s ongoing
authoritarian slide has met with few consequences in Brussels, setting a
dangerous precedent for other EU member states (notwithstanding the
commission’s recent actions over Hungary’s asylum abuses).
Commission scrutiny of Poland is imperative to safeguard the European
Union’s basic values, but it shouldn’t stop there.
The commission should consider activating its rule of law mechanism
against Hungary as the European Parliament called for in December, to send a
clear signal that member states that undermine the rule of law and media
freedom will be held to account.
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