Boyden Gray, The Wall Street Journal, 05.07.2016
BRUSSELS HAS INSERTED ITSELF INTO WARSAW’S INTERNAL LEGAL AFFAIRS BASED ON AUTHORITY CONJURED OUT OF THIN AIR.
The European Union’s current overreaching and meddling in Poland’s legal affairs under the guise of its lawless, ironically named “Framework to Strengthen the Rule of law,” provides a glimpse at some of the dynamics underlying last month’s Brexit vote. The framework, announced in March 2014, did not directly factor into Brexit, but it demonstrates the EU’s troubling propensity to harass its member states and dictate Brussels-based solutions for domestic problems. If pursued, the framework could further destabilize the EU.
At issue is a standoff between Poland’s new center-right governing coalition and its Constitutional Tribunal—akin to the U.S. Supreme Court—regarding the validity of appointments to the Tribunal. The new governing coalition believes its appointees should be seated, while the Tribunal believes the seats should go to the appointees of the outgoing center-left government. Which side is correct under Polish law is less important than the complete lack of evidence that the impasse cannot be resolved politically within Poland, to say nothing of the lack of evidence that the dispute threatens the “rule of law” values enshrined in Article 2 of the Treaty on European Union (updating the 1992 Maastricht Treaty).
No matter. Instead of directing its energies to resolving the refugee crisis, calming the turmoil surrounding the Brexit referendum or revitalizing its moribund economy, the EU is flexing its muscle to dictate its preferred result for Poland’s internal dispute. This would be cause for concern were the EU’s actions within the scope of its governing treaties. But in this case, the EU is inserting itself into Polish affairs because it sees an opportunity to institute its Framework, an authority that it simply conjured out of thin air.
The relevant treaties establish two mechanisms for the EU to address transgressions by member states and to protect the fundamental values upon which the union is founded. The first is Article 258 of the Treaty on the Functioning of the European Union (updating the 1958 Treaty of Rome). Under Article 258, the Commission can issue opinions detailing the alleged failure of member states to fulfill treaty obligations and prosecute them to binding resolution before the European Court of Justice.
The second procedure, set forth in Article 7 of the Treaty on European Union, is more open-ended as to potential violations, but deliberately more difficult to invoke. One-third of the member states or the Commission may invoke Article 7 by submitting a “reasoned proposal” to the Council of the European Union—the heads of state of the member countries—alleging that a member state is engaging in a “serious and persistent breach” of an Article 2 value such as the rule of law.
Acting by unanimity with the consent of the European Parliament, the Council may suspend certain rights of the member state, including its Council voting rights. This is a punishment that’s never been invoked before, and has been called the “nuclear option.” It is intentionally difficult to invoke and carries draconian sanctions because, absent extraordinary circumstances, member states should have full autonomy over their internal systems of justice.
Rather than make its case against Poland under either Article 258 or Article 7, the Commission instead invoked its Framework. On June 1, the Commission sent a Rule of Law Opinion to Poland detailing its concerns and setting forth its preferred solutions. Poland has so far refused to acknowledge the legal legitimacy of the Commission’s opinion.
The Framework is a misstep in EU governance. Not only does it precipitate unnecessary crises between the EU and its member states, it also represents a centralization of authority that has not been laid out by treaty. And especially on matters regarding the domestic administration of justice, the EU should be particularly sensitive.
The Framework’s defenders say that it is nothing more than a procedural bridge between informal consultations regarding potential rule-of-law violations and Article 7’s nuclear option. But the Commission has at its disposal numerous informal, diplomatic tools to address such violations and has used them successfully in the past. To the extent a rule-of-law crisis is brewing in Poland, there is no reason to believe informal tools would prove inadequate to address it.
In truth, the Commission invoked the Framework to further centralize power in Brussels. The Framework is a Commission effort to grant itself the power to review and assess the quality of a member state’s justice system and to use threats that usurped authority to delay and impede reforms that it disfavors. It allows bureaucrats within the Commission to enforce—unguided, and in secret—their idiosyncratic understandings of Article 7’s “fundamental values,” without adhering to Article 7’s procedural requirements.
If the Framework gains a foothold in EU law, it could enable the Commission to assert control over member states’ justice systems as well as their human-rights and antidiscrimination laws. That is not how the EU, founded upon national sovereignty and sovereign consent, is supposed to work. And it is more a denial than an affirmation of the rule of law.
Given the EU’s unpopularity in some places, the last thing it needs is yet another incident sparked by the Commission’s unelected bureaucrats against a member state’s elected leadership. Europe is under enough stress at the moment. Invoking the ill-conceived Framework now will only further strain the union and delay its ability to craft and implement solutions to the truly existential problems currently besieging it and the Continent.