Fears at Polish curbs on judicial and media freedom

EU officials returned to their desks this week in the hope that 2015 would be a year they could leave behind. A series of crises, beginning with the terrorist attacks on Charlie Hebdo in Paris in January, followed quickly by the Greek bailout standoff and culminating with the refugee crisis, marked a torrid year for the European Union.

So far the outlook for 2016 looks similarly bleak, as the refugee crisis continues and the possibility of a British referendum on EU membership looms. Of more immediate concern in Brussels, however, are recent political developments in Poland.

The election of Jaroslaw Kaczynski’s conservative Law and Justice Party (PiS) with an overall majority in October’s general election in Poland unnerved many in Brussels. Two months later, some of these fears appear to have been justified. News that the government has pressed ahead over the Christmas break with two controversial laws that could curtail judicial and media freedom has sparked concern.

On December 28th, Polish president Andrzej Duda enacted a new law on the constitutional tribunal, sanctioning sweeping changes to the way the country's highest legislative court works. Most significant is the requirement that the court must adopt rulings by a two-thirds majority, with at least 13 judges present, a rule that will effectively make it more difficult for judges to strike down new laws.

Street protests

The introduction of the law, which first passed through the parliament and the senate, gave fresh impetus to the cause of thousands who have been protesting against anti-democratic measures on the streets of Poland since the October election.

Last Wednesday, parliament passed a controversial media Bill which will give the government power to directly appoint the heads of public broadcasters. It now passes to the senate – where PiS also holds a majority – and the president for approval. The Association of European Journalists said the law would “effectively bring public service television and radio under the direct control of the government” and lead to “systematic editorial bias”.

The latest moves have also prompted a robust response from both the European Commission and Council of Europe.

European Commission first vice-president Frans Timmermans sent two letters to the Polish government in the last week voicing concern. In an interview with a German newspaper on Sunday, Germany's commissioner, Günther Oettinger, accused Poland of breaching "common European values" and warned of EU action. In an indication of the seriousness of the issue, a discussion of rule of law in Poland has been added to the agenda of the weekly meeting of EU commissioners in Brussels next Wednesday.

Non-EU human rights body the Council of Europe has also weighed in on the debate, urging Duda not to sign the new public service media law, which it says was “rushed through parliament” without sufficient public debate.

“The law worryingly places public service media under direct government control by giving the latter the powers to appoint and dismiss the members of the supervisory and management boards of public service television and radio,” the Council of Europe human rights commissioner said, adding the arrangements “contradict Council of Europe standards”.

The commission's intervention prompted the Polish foreign ministry to summon the commission's top official in Warsaw on Tuesday. It also sparked something of a public relations counter-offensive by the Polish government, with foreign minister Witold Waszczykowski undertaking interviews with international media outlets in the last week.

Despite the unease in Brussels about developments in Poland, the European Commission’s power to intervene in the governmental process in a member state is limited.

Under article 7 of the Lisbon Treaty, serious breaches to the values of freedom, democracy and the rule of law by a member state can result in a suspension or loss of voting rights in the EU Council of Ministers.

But politically this is unlikely. A call by the European Parliament to apply the clause to Hungary, for example, gained little traction.

Instead, next Wednesday’s discussion is the first in a three-step “pre-article 7” procedure introduced by the previous commission which allows the EU’s executive arm to monitor “systemic threats” to the rule of law.

Eastern bloc torchbearer

Nonetheless, developments in Poland are deeply concerning. As the largest former communist state to join the EU, Poland matters hugely in Brussels, not least due to its role as a torchbearer for the other eastern European countries in the bloc.

After a year when fresh divisions between “old” and “new” Europe were opened up over the refugee crisis, the EU will be reluctant to further alienate members in the east.