Poland pitches way out of Article 7 as Brussels hails ‘positive dynamic’

The “action plan,” presented by Justice Minister Adam Bodnar during a meeting of European affairs ministers in Brussels, consists of nine bills aimed at restoring judicial independence from the country’s highest tribunal to the most ordinary courts.

The overture is part of the diplomatic reset that Prime Minister Donald Tusk has spearheaded since taking office in December.

“If Poland is out of this procedure, it means that we are stronger as a member state, that we might have more influence on how the European integration is going, and we will have more power in, also, supporting those ideas (and) projects that we would like to implement at the EU level,” Bodnar told reporters on Tuesday morning.

Bodnar, who described the meeting as having taken place in a “good atmosphere,” hopes the introduction of the “action plan” and the lifting of Article 7 can happen before the end of the Belgian presidency of the EU Council, set to run until the end of June. Ideally, the feat should happen by 1 May, the 20th anniversary of the Poland’s accession to the bloc.

“As the presidency, we obviously welcome this very positive dynamic and we will stay cautious to ensure these reform projects are successfully voted and implemented,” said Hadja Lahbib, Belgium’s minister of foreign affairs, who spoke next to Bodnar.

“When there is a will, there is a way,” she added. “We really welcome this evolution.”

European Commissioners Věra Jourová (values and transparency) and Didier Reynders (justice) were in an equally celebratory mood, hailing the roadmap as “realistic” and “impressive,” but cautioning the executive’s final assessment would depend on how the laws address the “broad list of breaches” and “problematic issues.”

“The action plan is a step in the direction which might lead to the closure of Article 7. But there is much work to be done,” Jourová said. “The Commission will remain constructive. We will remain in intense dialogue.”

Poland has been under Article 7 since 2017 due to systematic breaches of fundamental values and the continued erosion of judicial independence. The procedure compels the country to appear in regular hearings before the other member states and account for the progression – or, in this case, regression – of the rule of law.

Only Poland and Hungary have been subject to Article 7, which is often referred to as the “nuclear option” of the EU treaties because, in its very last stage, it can strip a country of its voting rights. (This radical step has never been taken.)

Duda’s looming veto

The years-long clash between Warsaw and Brussels stems from the far-reaching changes introduced during the eight-year rule of the Law and Justice (PiS) party, which re-arranged the relations between courts, expanded political influence over the judiciary, weakened the separation of powers and undermined the application of EU law.

A highly controversial reform that empowered the disciplinary chamber of the Supreme Court to punish magistrates according to the content of their verdicts was at the centre of the protracted dispute. The reform led to a fine of €1 million per day until it was struck down by the European Court of Justice in June last year.

Upon coming into power, Prime Minister Tusk moved decisively to undo the most damaging effects of the previous cabinet, tabling legislation to reverse its legacy and removing PiS loyalties from key positions. The speed of the changes raised eyebrows and triggered a standoff with PresidentAndrzej Duda, who is politically aligned with PiS.

Given his prerogative, Duda will have to sign off the bills contained in the “action plan” after their approval in the parliament. Duda’s veto, which he has waged in the past, might hinder the ambitious timeline envisioned by the new government, warns Piotr Buras, a senior fellow at the European Council on Foreign Relations (ECFR).

“It remains an open question whether the president, Andrzej Duda, who is clearly a political supporter of the current opposition (Law and Justice), will be willing to sign all of these bills,” Buras told Euronews in an interview.

“It might happen that, even if the government led by Donald Tusk manages to pass (through parliament) this package of judicial reforms, none of them will enter into force because of the veto of the president.”

Should this blockage happen, Buras added, it will be up to the Commission and member states to assess whether the determination to enforce the proposed roadmap is a reason strong enough in itself to bring Article 7 to a close.

If Poland’s “action plan” is not up and running by the end of the Belgian presidency, the discussion will be passed to the next holder, Hungary, another potential roadblock. 

Beyond the lifting of Article 7, Tusk’s government is also seeking to unblock €76.5 billion in cohesion funds and gain full access to its COVID-19 recovery plan, made up of €34.5 billion in low-interest loans and €25.3 billion in grants. Although the procedures are separate, the cash was frozen mainly due to the erosion of judicial independence.