Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Foreign Affairs Committee, the Joint Committee on Human Rights and the Justice Committee
Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law.
Article 7(1) TEU; majority (four fifths); EP consent
Exiting the European Union
(39401), 16007/17, COM(17) 835
5.1On 20 December, the European Commission announced that it was initiating the Article 7(1) TEU process against Poland for breach of the rule of law. This followed an ongoing dispute between the governing Law and Justice party (PiS) in Poland and the Commission over judicial reforms which the Polish Government began in 2015. The long history of those reforms and the dispute between the EU and Poland is set out in “Background” section of this Report chapter. At the same time as publishing a proposed Article 7(1) Council Decision which, if adopted, would result in a determination of a clear risk of serious breach of the rule of law by Poland, the Commission published its Fourth Rule of Law Recommendation. If Poland complies with that Recommendation to the satisfaction of the Commission within three months, the proposed Council Decision will not progress further.
5.2The Commission decided to initiate the Article 7(1) TEU process for the first time in the EU’s history, partly because it had exhausted a preliminary process called the “Rule of Law” Framework which it had in turn initiated in January 2016. The history of the adoption by the Commission of “Rule of Law” Framework and its scrutiny by our predecessors is set out in the “Previous Scrutiny” section of this Report chapter.
5.3According to Article 7(1) TEU, on a reasoned proposal by one third of Member States, by the European Parliament (EP) or by the Commission, the Council, acting by four-fifths majority and after obtaining the consent of the EP, may determine that there is a clear risk of a serious breach by a Member State of the EU values referred to in Article 2 TEU. Those values include respect for the rule of law. Before making such a determination, the Council must hear from the Member State in question and may make recommendations.
5.4There is no automatic escalation from such a determination under the so-called preventive mechanism of Article 7(1) TEU to the imposition of sanctions on a Member State, such as losing its right to vote in the Council (the sanctions mechanism). For that to happen:
5.5The Prime Minister visited Poland on 21 December, following the Commission’s publication of its fourth Rule of Law Recommendation and the proposed Article 7(1) TEU Council Decision. When asked to comment, she said: “These constitutional issues are normally, and should principally be a matter for the individual country concerned”. She added “Across Europe we have collective belief in the rule of law”. She welcomed “… the fact that Prime Minister Morawiecki has indicated that he will be speaking with the European Commission” and hoped “ that will lead to a satisfactory resolution”.
5.6The Minister of State for Exiting the European Union (Lord Callanan) now says that the Government places great importance on the rule of law. He notes that all Member States have a responsibility to uphold “a set of common values” and should respect the rule of law. However, the Government believes that constitutional arrangements are primarily a matter for national governments. As Poland now has three months to consider the Commission Reasoned Proposal and its fourth Rule of Law Recommendation, the Government does not want to prejudge the process and wishes to consider the Polish Government’s response to the Commission’s proposal.
5.7We thank the Minister for his Explanatory Memorandum which is particularly helpful in setting out the background to the dispute between the European Commission and Poland.
5.8The resort to the Article 7(1) TEU process is a highly significant development in the history of the EU. However, we consider that there is time yet for the position to be resolved between Poland and the Commission because:
5.9We will, of course, require the Minister to indicate to us well in advance of any vote in Council how the UK intends to vote, should the process progress to that stage in due course. Whilst we do not think it is for us to express any views about the Polish Government reforms and Poland’s compliance with Article 2 TEU values, we would be interested to learn the reasons for the UK’s voting intention and consider that they would also be of wider interest to the House.
5.10However, in the meantime, we ask the Government to register our interest in the wider questions posed by the EU institutions and individual Member States having to make judgments about the compliance of other Member States and third countries with values such as the rule of law or human rights. This may be a feature of the UK post-Brexit relationships. For example, we will be interested to see whether the UK will be either open or averse to including any human rights conditionality in either its future trading and cooperation relationships with the EU and with other countries. We acknowledge the potential wider interest of the House in these questions, as evidenced by a report of the previous Joint Committee on Human Rights on the “Human Rights implications of Brexit”. This touched on human rights clauses in EU-third country Free Trade Agreements (FTAs) and latterly, in Strategic Partnership Agreements (SPAS).
5.11Pending further developments, we retain the document under scrutiny. We draw it and the chapter to the attention of the Foreign Affairs Committee, the Joint Committee on Human Rights and the Justice Committee.
5.12The Government has provided a comprehensive history to the Polish Government’s reforms affecting the Polish Judiciary, the Polish Constitutional Court and freedom of the press. It is reproduced here, but summarised where possible.
5.13Following the 2015 General Election, PiS introduced legislation regarding the composition and procedures of Poland’s Constitutional Tribunal. The Tribunal is responsible for judging whether statutory legislation complies with the Polish Constitution. It is composed of 15 judges, each chosen by parliament for a nine-year term. Its key terms of reference are set out in the Constitution, while the details of its operation are determined by legislation. The Tribunal ruled these changes to its composition and procedures were unconstitutional. This led to an impasse after the Polish Government refused to publish the rulings so preventing those judgments from taking legal effect. Both internal and international criticism of the Polish Government followed.
5.14The Commission initiated a dialogue under the Rule of Law Framework (see “Previous Scrutiny” below) in January 2016. Under the Framework the Commission and Polish Government exchanged opinions and the Council was regularly updated. The Venice Commission, a Council of Europe body consisting of Constitutional law experts, also issued an opinion in October 2016 on the Constitutional Tribunal reforms. This concluded that despite some Commission recommendations being reflected, the reforms would ‘considerably delay and obstruct the work of the tribunal’ as well as ‘undermine its independence by exercising excessive legislative and executive control over its functioning’.
5.15In Spring 2017 the Polish Government proposed further legislation aimed at judicial reform:
5.16The Polish Government argued these reforms were necessary to address corruption and inefficiency in the Polish Judicial System, a legacy from communism. They considered the reforms to be in line with valuing the rule of law and the independence of the judiciary and judicial reform process to be a matter for Member States. The Commission believed that these reforms, in addition to the changes to the Constitutional Court, had serious implications for the rule of law in Poland and issued recommendations on how they could be amended to address their concerns.
5.17The bills relating to the National Judicial Council, Court President and Supreme Court reform all passed through the Lower and Upper Houses of the Sejm (Polish Parliament). On 24 July 2017 President Duda announced he would veto the reforms to the National Judicial Council and Supreme Court, saying “these would not strengthen a sense of justice”, but signed into law the third Bill reforming the role of Court Presidents. President Duda agreed that the judiciary needed “wise” reforms, and said that he would personally draw up new legislation to put to Parliament. On 27 September 2017, the President presented his proposals. The changes he proposed included:
5.18President Duda also proposed the addition of lay judges, chosen by the Senate to sit on two additional chambers of the Supreme Court:
5.19On 8 December 2017, reflecting a compromise that had been reached, the Lower House of the Sejm adopted the revised National Judicial Council and Supreme Court bills, although with some Government amendments. Both bills have been signed into law by President Duda and accepted amendments include:
5.20On the 8 December 2017, the Venice Commission of Constitutional Law adopted a legal opinion, which the European Commission had asked them to conduct, on the reforms to the Supreme Court, National Judicial Council and Court Presidents. They concluded that the Bills put the independence of the Polish judiciary at serious risk. Other international authorities such as the Organization for Security and Co-operation in Europe voiced similar concerns.
5.21The European Commission announced on 20 December 2017 that they had concluded that there was a clear risk of a serious breach of the rule of law in Poland. The Commission therefore:
5.22The Recommendation invites the Polish Government to respond within three months to the following individual recommendations to:
5.23Polish Prime Minister Morawiecki and President Juncker met in Brussels on 9 January 2018 and discussed the issue in what were described as constructive discussions. Both sides made a public commitment to dialogue and agreed to meet again before the end of February.
5.24In March 2017, the previous Committee cleared from scrutiny the Commission’s Rule of Law Framework after holding it under scrutiny since 2014. The Framework was produced in response to the concern of the European Parliament and some Member States about various developments in Hungary, Romania and even France. It seeks to resolve such future threats to the rule of law before conditions are met for activating the procedures in Article 7 TEU in a three-stage process involving:
5.25When the Framework document was first scrutinised by a previous Committee, it referred the document for debate on 7 May 2014. In so doing, it highlighted the potentially wide scope of the concept of the rule of law envisaged, the lack of oversight of the Commission when applying the process and the possibility of the Framework’s extension in future to wider Article 2 TEU values. It thought that altering the threshold in Article 7, should be a matter for Treaty change and the collective political will of the Member States. The Framework has not been formally adopted by the Member States, who instead agreed to participate in an annual Rule of Law Dialogue. In addition, a Council Legal Service opinion was made public on the Council’s website, expressing the view that the Commission never had legal competence to adopt the Framework.
5.26In the light of the Referendum, the debate recommendation was rescinded by the preceding Committee. However, it was kept under scrutiny because of the use of the Framework to address developments in Poland concerning the constitutional court and judiciary and freedom of the press.
5.27The document was only cleared in March 2017 once the Government produced a long-overdue response on what progress had been achieved under the Framework.
5.28In an Explanatory Memorandum of 19 January 2018, the Minister of State at the Department for Exiting the European Union (Lord Callanan), says:
“The Government places great importance on respect for the rule of law. The UK has a proud history in encouraging, respecting and promoting the rule of law and our independent judiciary is universally respected. The rule of law and an independent judiciary are cornerstone values of the United Kingdom. They are essential principles for economic prosperity and the protection of individuals. The UK is a strong voice on the global stage with respect to importance of the rule of law and an independent judiciary.
“Relations between the United Kingdom and Poland are strong and broad, covering security issues such as defence, foreign policy and law enforcement cooperation as well as economic cooperation through trade and investment. London hosted the Polish Defence and Foreign Ministers in October 2017 whilst in December 2017 the Prime Minister and a number of Cabinet Ministers represented the UK at the Inter-Governmental Consultations between the UK and Polish Governments in Warsaw. Both the Prime Minister and Foreign Secretary discussed the rule of law with their Polish counterparts during the IGC.
“The Government notes, and is considering, the Commission’s Reasoned Proposal and Venice Commission Legal Opinion on the issue of the rule of law in Poland. All Member States have a responsibility to uphold a set of common values and should respect the rule of law and cultivate a society where it thrives. However, the Government believes that constitutional arrangements are primarily a matter for national governments.
“Article 7 of the TEU provides for the Polish Government to present its views and the Commission has given the Government three months to respond to its most recent Rule of Law recommendations. The Government does not want to prejudge this process and wishes to consider the Polish Government’s response to the Commission’s proposal.
“The Government maintains its belief that the best resolution is one that is mutually agreed by both Poland and the Commission. We urge both parties to fully engage with one another within the three-month window, given by the Commission, in substantive, sustained and constructive dialogue with the aim of reaching a common understanding on how to resolve the issue”.
None, but see (35878), 7632/14: Thirty-fifth Report, HC 71–xxxiii (2016–17), (15 March 2017); Thirty-ninth Report HC 219–xxxvii (2014–15), (24 March 2015); Thirty-sixth Report HC 219–xxxv (2014–15), (11 March 2015); Forty-eighth Report HC 83–xliii (2014–15), (7 May 2014).
35 Communication from the Commission to the Council and European Parliament: , COM 14 (158).
36 Poland, as the Member State to whom the proposed Decision is addressed, will not participate in any votes under the Article 7 TEU procedures.
37 The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of Article 7 are laid down in Article 354 TFEU.
38 Parliament’s consent requires a two-thirds majority of the votes cast, representing an absolute majority of all MEPs (Article 354(4) TFEU).
39 The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
40 Nor is the Article 7(2) and (3) TEU two-stage sanctions mechanism dependent on an Article 7(1) TEU determination. The two mechanisms are independent of each other.
41 Acting on a proposal from one third of Member States or the Commission, but not by the EP.
42 By a two-thirds majority of the votes cast and absolute majority of MEPs.
43 The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations”
44 Without any involvement of the EP.
45 See Reuters,
46 Sixth Report, HC 695 HL88 (2016–17), .
47 (35878), 7632/14 + ADD 1, COM (14) 158. Cleared in Thirty-fifth Report, HC 71–xxxiii (2016–17), (15 March 2017).
48 In 2011 the Hungarian Government’s mandatory early retirement policy for the judiciary and in 2012 Romanian Government’s non-compliance with key judgments of its Constitutional Court.
49 In summer 2010, the French authorities’ policy of collective deportations of EU citizens of Roma ethnicity.
23 February 2018