Upholding lawyers’ values

I hope lawyers felt satisfaction this month when the European Commission invoked its rule of law mechanism for the first time. Given the general antipathy for all things European, I suspect irritation may have been the more common reaction.

But for me, it was a welcome sign that European values will be upheld even when democratically elected governments breach recognised standards of the rule of law. After all, article 2 of the Treaty of the European Union makes clear that: ‘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.’

It was Poland’s actions that provoked the intervention. The government is accused of various things. First, of passing a law that will make it harder for the Constitutional Tribunal to make decisions by raising the majority needed from a simple majority to two-thirds, and by raising the quorum from nine to 13 (out of 15 judges). This comes after quashing the nomination of five new judges by the previous government, so as to install its own candidates. The government is also accused of passing a new law firing the heads of public radio and television, and giving the treasury minister power to choose their successors.

The new EU rule of law mechanism was launched in March 2014, partly as a result of similar actions by the Hungarian government from the end of 2011 (the Hungarian government required the mandatory retirement of 10% of Hungarian judges). Before its launch, there was only a ‘nuclear option’ against erring member states: article 7 of the treaty, which had never been used (probably because its only sanction is the severe one of suspending the voting rights of the member state in question. The new mechanism aims to introduce a more graduated approach).

So, as first vice-president Frans Timmermans explained, a decision was taken to launch a preliminary assessment, to clarify the facts objectively and start a dialogue with the Polish authorities without prejudging the next steps. Of course, the Polish government is furious and denies all wrongdoing.

The commission has been accused of hypocrisy because it took no steps against Hungary but is now eager to flex its muscles against Poland. But that is misconceived. When the new rule of law mechanism was launched nearly two years ago, it was clearly a response to the inadequate tools at hand to deal with Hungary.

As Viviane Reding, commissioner for justice at the time, explained: ‘After many exchanges, Hungary has respected the legal views of the commission and has brought its constitution back in line with EU law with regard to all the points raised by the commission. Hungary has respected – as the rule of law requires – the judgment of the Court of Justice of November last year, which confirmed the commission’s view that the anticipated mandatory retirement of 10% of the Hungarian judiciary was not in line with EU law. President Barroso and I were intensely involved in bringing all these matters to a satisfying conclusion from a legal perspective.’

So it seems to me that roughly equivalent measures were taken against Hungary at the time, but without the existence of formal procedures.

More is clearly to come in Poland, since the government is new and emboldened by the Hungarian government’s image of success in dealing with migration – by building a wall to keep out refugees, in the face of widespread opposition from around Europe.

If the commission does not succeed after the first step (its assessment) there are two more under the new mechanism. The second would be a commission ‘rule of law recommendation’ publicly addressed to Poland, saying that it should solve the problems identified within a fixed time and inform the commission of actions taken. The third and follow-up stage involves monitoring the steps taken by Poland in response to the recommendation. If there is no satisfactory follow-up within the time limit, the commission can always resort to one of the procedures set out in article 7.

The intention is to base the entire process on a continuous dialogue between the commission and the member state, with the European parliament and council being kept regularly informed.

This is a brave step with an unused new mechanism. It marks a turning point in the relationship between the EU and its members. In some quarters, the commission will be damned for taking action against Poland and would have been damned if it had not. But I think it is right for it to uphold the values of the rule of law in this way.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs