Abstract
This commentary reflects on what can be understood as the twilight of illiberalism in Poland. The new Polish parliamentary majority has declared its intention to reform the judicial system and restore its independence. The reforms are slow and arduous, particularly due to the limited availability of legitimate options and the complexity of the political landscape. Nonetheless, in May 2024, the European Commission decided to close the procedure under Article 7(1) of the Treaty on European Union against Poland. Instead of focusing on whether the closure of the Article 7(1) mechanism occurred at the right moment, this commentary places the development in the broader context of EU constitutional law. First, it reconstructs the main legal steps taken after the 2023 parliamentary elections in Poland that led to the closure of the Article 7 procedure. Next, it argues that the closure should be accompanied by a political instrument enhancing dialogue and cooperation on the reforms planned by the national government. Finally, the commentary suggests that the closure reinforces constitutional voluntarism in the EU, as the process of recovery from illiberalism has primarily been shaped by the will and intentions of the new government.
Introduction
If one thinks about illiberalism in Poland over a year after the parliamentary elections of October 2023, twilight seems to be a proper metaphor. Twilight not only symbolizes decline and coming to an end, but also a period when it is difficult to tell one time of day from the other, when the shapes of things are blurring and the setting sun gives unexpected reflections on objects all around. The new Polish parliamentary majority declares the will to cure the judicial system and to reinstate its independence, but the reforms are slow and arduous. 1 Obvious solutions are missing for the reform of some judicial institutions, in particular the Constitutional Tribunal (CT) and the National Council of the Judiciary (NCJ) – both as regards legality and efficiency of possible measures. In addition, the previously ruling party still enjoys considerable voters’ support.
Nonetheless, the attitude and policy plans of the new majority have received a remarkable symbolic acknowledgment at the European Union (EU) level. In May 2024 the European Commission decided to close the procedure from Article 7(1) of the Treaty on European Union (TEU) against Poland. The Article 7 procedure had for the first time been launched in the EU against Poland in 2017. Poland is also the first ever Member State to have the procedure terminated. 2 This part of Article 7, broadly called ‘preventive’, as opposed to the ‘sanctioning’ procedure from the second paragraph of the same provision, may lead to the Council's determination ‘that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2’. 3
This commentary does not focus on the question of whether the very closure of the Article 7(1) mechanism occurred at a right moment. Rather, it tries to show how this development broadens our understanding of the Article 7 procedure as a mechanism of EU constitutional law. 4
Even though policies and legislation made by the previous parliamentary majority had also affected common values beyond the rule of law, the scope of the Article 7 procedure against Poland remained limited to violations impacting on the judiciary. 5 In its decision to trigger the procedure in 2017, the Commission had pointed at ‘the lack of an independent and legitimate constitutional review’ in Poland, the Polish legislation affecting the independence of the Supreme Court, ordinary courts, the National Council for the Judiciary and the National School of Judiciary and Public Prosecution. 6 These problems were also the subject of the subsequent Commission's recommendations for Poland. 7
In May 2024 the Commission decided to close the procedure, as it concluded that ‘there is no longer a clear risk of a serious breach of the rule of law in Poland within the meaning of Article 7(1) of the Treaty on European Union’. 8 This contribution first reconstructs the main legal steps that followed the 2023 parliamentary elections in Poland and led to the closure of the Article 7 procedure. 9 Next, it discusses the implications of the Commission's decision that there is no longer ‘a clear risk of a serious breach’ of common values in Poland. The main argument is that it would be recommendable that the closure is followed by a structured dialogue and cooperation on the reforms planned by a national government. The final part submits that the closure in effect enhances constitutional voluntarism in the EU, insofar as the primary role has been given to the will and intentions of the new government in the process of recovery from illiberalism.
From the parliamentary elections to the closure of the Article 7(1) TEU procedure
Following the general elections of 15 October 2023, Donald Tusk became the Prime Minister of Poland for the third time in his career. Broadly perceived as a pro-EU politician, Tusk served as the President of the European Council from 2014 to 2019, and as the President of the European People's Party from 2019 to 2022. The new cabinet was sworn in on 13 December 2023. The joint function of the Minister of Justice and of the Public Prosecutor General was taken up by Adam Bodnar. Human rights activist and legal scholar, Bodnar served as the Polish Ombudsman for six years during the PiS's government's term and gained international esteem and recognition for his public activity. It is thus not surprising that European commentators have expected a turn in the Polish authorities’ attitude to the standards of the rule of law and democracy, as well as to the European Union as such.
Nevertheless, nobody has expected that changes would occur easily. The new ruling coalition lacks majority to strike down the legislative veto of the President of the Republic Andrzej Duda, who largely supports PiS's agenda and whose term of office ends only in August 2025. The prospects for swift, hard law changes in the justice system have therefore been limited from the very moment when the new majority overtook power. Let us now briefly summarize the main actions with regard to the system of justice in Poland, which the Polish authorities and EU institutions have undertaken in the span of little more than five months, between the swearing in of the new cabinet and the Commission's decision to close the Article 7 procedure at the end of May 2024.
The new government quickly commenced a dialogue with the EU institutions 10 and drafted the Action Plan – a not fully public blueprint for the reform of Poland's justice system, consisting of legislative proposals and the expression of commitment to respect the primacy of EU law and the implementation of the case law of the CJEU. 11 At the same time, Poland officially reversed its attitude to the European Public Prosecutor's Office (EPPO), as Minister Bodnar notified the Commission the intention to join this mechanism of enhanced cooperation. 12 The participation in the EPPO has been relevant among others for the Commission's process of assessment within the rule of law conditionality mechanism under Regulation 2020/2092. 13 The Commission confirmed Poland's participation to EPPO at the end of February 2024. 14
The Ministry of Justice has been communicating parts of the reform blueprint to the public, including legal academia. 15 On 20 February 2024 Minister Bodnar officially presented the Action Plan to the General Affairs Council, stating his wish to bring the Article 7 procedure to an end. 16 Several days later the European Commission announced that it will unlock the first payment for Poland under the Recovery and Resilience Facility and other funding programmes. The Commission based its decision among others on Poland's fulfilment of the two ‘super milestones’ related to the disciplinary regime for judges. 17 In fact, it was still the previous PiS's majority that had adopted most of the legal changes enabling the payment. 18 Apart from those legislative measures, the Commission underlined the Polish authorities’ intention to improve the state of judicial independence. It is thus clear that Poland's ‘clear affirmation of its commitment to the respect of the primacy of Union law and of the jurisprudence of the Court of Justice of the EU’ has become the decisive and previously missing factor for funds release. 19
Indeed, the Polish authorities undertook a number of secondary legislative, non-legislative and ‘soft’ measures, of which some have been meant to underline the intention to comply with EU law, and some to mitigate the effects of the legislation in force. Bodnar exercised his secondary legislative powers to modify the functioning of the disciplinary regime, the organization of the judiciary and of the public prosecution service. 20 He called the Polish judges to respect international law, EU law and the case law of the European Court of Human Rights and of the Court of Justice, also as regards recognising the flawed status of judges appointed by the politicized National Council for the Judiciary. 21 Moreover, the Sejm, the lower house of the Polish parliament, adopted non-legislative resolutions – statements and appeals concerning the independence and constitutional position of the Constitutional Tribunal and of the National Council for the Judiciary. 22
But apart from these instruments, the new majority also started the uneasy and uncertain process of amending the legislation concerning the judiciary and constitutional review. Legislative acts on the National Council for the Judiciary and on the Constitutional Tribunal have been proposed, aiming to restore the independence of these institutions. 23 At the moment of closure of the Article 7 procedure, the two acts concerning the CT and an act concerning the NCJ were in the midst of the legislative process. 24 However, eventually the President of the Republic referred all these acts to the Constitutional Tribunal for the control of constitutionality, thus blocking their implementation, at least temporarily. 25 At the time of writing, the cases are still pending before the Tribunal.
It is however not only the obstruction by the PiS-supportive incumbents that makes the rule of law restoration to be far from a linear, progressive and predictable process. Poland's dialogue with the Venice Commission serves as evidence. In academic discourse and beyond, the issues of the Constitutional Tribunal and the National Council for the Judiciary have been considered as the most complex challenges of the post-PiS reforms. After the closure of the Article 7 TEU, in the summer of 2024, the Polish Ministry of Justice requested opinions of the Venice Commission on some preliminary questions regarding the planned legislation on the status of judges appointed by the destabilized NCJ and on draft constitutional and legislative changes concerning the CT.
In its opinions, the Venice Commission among others criticized the more radical reform proposals on the table. It did not endorse the proposed solutions of the complete replacement of constitutional judges 26 and of the invalidation of all judgments of the CT issued with the participation of the irregularly elected judges. 27 The Venice Commission also did not support the proposal for nullifying all the judicial appointments made by the irregularly elected NCJ, which in fact would amount to discontinuing the term of about 3000 judges. 28 Instead, the Venice Commission commended solutions ensuring, among others, the right to a fair trial, the principle of proportionality and legal certainty. 29
Turning back from ‘a clear risk of a serious breach’ of common values
Just as the initiation of the procedure in 2017 had carried a considerable symbolic load and little likelihood of real sanctions, the recent closure has brought more symbolic and political overtone rather than a radical situation shift for Poland. One should not forget, however, that formally the procedure was preventive in nature, 30 even if systemic and serious deficiencies in the rule of law in Poland de facto already existed. In a strict legal sense, the discontinuation of the procedure thus means that the Commission no longer considers ‘that there is a clear risk of a serious breach’ 31 of common values by that country. The procedure did not reach the Council's determination of the existence of such risk, 32 but remained at the stage of hearings and recommendations for Poland. The closure has been of course politically beneficial for the new government. Among citizens, the end of the procedure is probably perceived as the Commission's general approval of the course of developments in Poland.
But the Commission's decision has brought novelty also within the broader context of EU constitutional law. It conveys an interpretation of the concept of risk of a serious breach of values – ‘a specific creature of the Union legal system’, 33 as distinct from an actual serious breach. The closure of the procedure has been the first time when the Commission determined the end of a clear risk of a grave violation of common values in a Member State. 34 The ‘risk determination procedure’ of Article 7(1) TEU however had not started in void. The Commission had first implemented the non-Treaty instrument of the Rule of Law Framework, for almost two years trying to pursue dialogue with the Polish authorities and issuing recommendations on the situation in Poland. 35 The Rule of Law Framework had been created as a measure that ‘is not an alternative to but rather precedes and complements Article 7 TEU mechanisms’. 36 The Rule of Law Framework thus applies below the threshold of the ‘risk determination procedure’. Accordingly, the Commission launched the Article 7(1) procedure after extensive and fruitless exchange with Polish authorities. 37 What should happen once the Commission considers the risk to be over, as it is now in the case of Poland?
When closing the Article 7 procedure, the Commission committed to monitor the implementation of the Action Plan. 38 It is submitted here that in order to enhance the legitimacy of the Commission's actions, a structured framework of cooperation, parallel to the Rule of Law Framework, would be desirable to implement at this point. While the Commission uses the Rule of Law Framework as a ‘pre-Article 7 procedure’, 39 a similar scheme could also be used in the ‘descending order’, immediately after the decision to terminate the preventive Article 7 procedure. It is true that the Commission has not ceased to analyse developments and to communicate with Poland on the rule of law. The Commission chose to approach Poland's Action Plan with confidentiality and continued dialogue, just as the first stage of the Rule of Law Framework has been meant to rely on them. 40 In addition, there are other monitoring instruments that continuously apply to all Member States, including Poland, such as the Rule of Law Report 41 and EU Justice Scoreboard. 42
Nonetheless, it might be still advisable to have a scheme such as the Rule of Law Framework to be implemented following the decision that ‘a clear risk of a serious breach’ of common values in a given Member State has expired. The Rule of Law Framework aims to formalize dialogue, to ensure ‘an objective and thorough assessment’ and to suggest ‘swift and concrete actions’ 43 in a sensitive situation that qualifies neither for the usual Commission's monitoring and enforcement, nor for the Article 7 procedures. Most importantly, in the period of (hopefully) serious attempts of recovery from illiberalism, the transition to a scheme such as the Rule of Law Framework could amount to a safety net, in terms both of practical coordination and of legitimacy. 44 As to the latter, a structured framework of cooperation could help ensure that the closure of the Article 7 procedure does not give a blanket approval of national reforms and policies. Such a solution might be prudent taking account of a society division in Member States such as Poland, where the previous government still enjoys a considerable support. In addition to the existing monitoring schemes, the Article 7 procedure, as political in character, should be followed by an equally political framework. Such a mechanism would be commensurate to the complexity of the transitional period, and to the highly polarized political landscape in a Member State experiencing the rule of law crisis. It would stress a specific legal and political situation of such a Member State, in contrast to the rule of law protection tools which are meant to apply equally to all Member States. The continued dialogue with national authorities would serve enhancing the transparency of the transition process. 45
One possible objection would hold that instruments such as the Rule of Law Framework aim to identify and correct actions or inactions of national authorities that are clearly on their way to causing a serious threat to or violation of EU common values. Instruments such as the Rule of Law Framework are thus not meant to monitor reforms reverting from violations, especially since Member States enjoy discretion to decide on the exact direction to follow. 46
In this regard, one must note that there is actually some ambivalence in the original Commission's communication on the Rule of Law Framework. On the one hand, the Rule of Law Framework has been created for situations when Member States’ policies or omissions ‘are likely to systematically and adversely affect’ the rule of law. 47 This is arguably not the case if we take Poland's Action Plan as designed and pursued in good faith. However, on the other hand, the Commission had expressed the expectation that at the assessment stage of the Rule of Law Framework, a Member State in question ‘cooperates throughout the process’ and adheres to the principle of sincere cooperation. 48 Such cooperative, good faith approach is unlikely to occur on the side of a Member State which intentionally curtails the independence of its judicial system. 49 The post-Article 7 implementation of a mechanism such as the Rule of Law Framework could therefore be performed at least at the stage of assessment, possibly including dialogue and opinion by the Commission. 50 There would finally be prospects for an institutional dialogue in good faith between the Commission and a Member State, as opposed to the exchange between EU institutions and the previous Polish government. 51 Such dialogue might help to follow up on a Member State's intentions in a structured way. In addition, the framework would signal that the situation of the rule of law in a specific Member State is still fragile and not to be taken for granted. 52 As argued in the following section, the closure of the procedure against Poland entails a risky dose of reliance on the will of national authorities.
The enhancement of constitutional voluntarism
One should not dismiss the Polish government's soft instruments too easily. Expressions of commitment and official governmental declarations have weight in the constitutional relation between the EU and its Member States. The principle of primacy ultimately hinges on ‘the attitude of national courts and authorities’. 53 The Commission's decision to close the Article 7 procedure against Poland reaffirmed this fact in the context of the rule of law crisis.
Hence it is understandable that the Commission acknowledged the significance of the national authorities’ intention. Soft instruments such as statements, resolutions or official blueprints may be interpreted as confirming the will to comply with EU law, in particular if they release the judiciary and the prosecution service from the disciplinary chilling effect. Under the previous parliamentary majority, the Constitutional Tribunal has been the most notorious opponent of EU law primacy among the Polish authorities, 54 and it remains under the control of the judges elected by the previous majority. The current government has decided to stop publishing judgments of the current Constitutional Tribunal in an official gazette. 55
Nonetheless, beyond the issue of EU law primacy, EU institutions endorse a voluntarist vision of the post-illiberal recovery, as they considerably rely on good will of the Polish authorities. Constitutional voluntarism is a conception of political power and authority that gives primary role to the will (voluntas) of the wielders of power, rather than to their rational agency and judgment. 56 The Commission in fact enhances voluntarism in the post-Article 7 period, since it puts a lot of confidence in the power of will and intention of national authorities in the process of departing from illiberalism.
Meanwhile, it is clear that the rule of law predicament in Poland is deeply embedded and involves multiple actors. Intentions of the office-holders clash with structural challenges and non-ideal solutions on the table. The 2024 Rule of Law Report shows that the level of judicial independence in Poland remains low in popular perception, 57 while the perception of the level of corruption is high. 58 Hence social legitimacy, transparency and communication with the public seem crucial after an illiberal government steps down. Following the highly polarized electoral campaign, the 2023 elections gave PiS as much as 35.38% of votes – more than the result of Civic Platform, the main party in the current coalition. 59 The complex implications of potential reforms (as evidenced e.g., by opinions of the Venice Commission), unresolved problems of the judiciary preceding even the PiS's rule, social polarization – these various factors create an environment in which the will and intention of government have only limited force. In this context, it seems unrealistic to put excessive trust in the sovereign will to reform. The voluntarist vision of post-illiberal recovery should be mitigated.
The understandings of constitutional authority that depart from the voluntarist vision – as Maria Cahill argues with regard to sovereignty in the EU – hold that will may and should be constrained among others by reason and self-restraint. 60 Public institutions thus should engage in reasoned justification-giving and in a structured, sincere dialogue with other institutions and sites of authority. 61 Also in the context of recovery from the rule of law crisis, the implications would be that both national and supranational authorities should continuously substantiate their actions and communicate with the public in a clear and comprehensive way. In this vision, dialogue between national and supranational institutions might help enhance reasonableness and legitimacy of changes. Reason-giving and cooperative exchange might mitigate the reliance on the will of national authorities, which itself is insufficient in the face of structural problems with the rule of law in a Member State such as the current Poland. A structured post-Article 7 framework might turn out helpful in this regard.
Conclusion
As these words are being written, the Polish constitutional system undergoes a dynamic and complex process of post-PiS changes. The end of the process is nowhere to be seen on the horizon. This commentary has examined the nature and implications of the first ever closure of the Article 7 TEU procedure against a Member State. Going beyond the question of whether or not Poland did enough to deserve the closure of the preventive Article 7 mechanism in the Spring of 2024, the contribution attempted to situate this development in the framework of EU constitutional law. The discontinuation of the mechanism, apart from the release of the EU budget funds subject to the rule of law conditionality, has been the main EU level reflection of the changes happening in Poland after the 2023 parliamentary elections. The intentions of the Polish authorities, their acknowledgment of EU law primacy and the commencement of reforms were sufficient for the Commission to close the procedure initiated in 2017. As reaffirmed by the Commission, the will and intention of national authorities are key in the sustenance of the principle of primacy. But since the Article 7 procedure has not been followed by a robust plan for monitoring the reforms, the Commission's decision has also underscored the role of intentions in the process of post-liberal recovery. In turn, the complexity and fragile legitimacy of this process has not been given due regard. One way to mitigate the voluntarist vision of post-Article 7 recovery might be to create a monitoring and cooperation instrument parallel to the Rule of Law Framework.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
