European Commission at a loss on tackling Polish judicial reform

The European Commission will debate the Polish government’s latest attempt to take control of the country’s judiciary Wednesday.

POLITICO’s EU sources inside and outside of the Commission say the body feels angry but impotent about the situation and will not propose specific new action during Wednesday’s meeting of Commissioners.

Commissioners from the European People’s Party will caucus ahead of the wider Commission meeting, and Commission First Vice President Frans Timmermans, a Dutch socialist, will lead the debate on the rapidly changing situation.

Three EU officials who spoke to POLITICO specifically rejected any suggestion that Poland would be threatened with a loss of EU funds, either now, or in the EU’s next long-term budget, which comes into effect in 2021.

The debate will come hours after tens of thousands of Poles joined protests Tuesday evening in reaction to new moves by the government ram the reforms through Parliament.

President Duda may ride to Commission’s rescue

The backlash inside and outside Poland has been enough to prompt Polish President Andrzej Duda to buck his political patron Jarosław Kaczyński and make counter-proposals to the government effort to bring the judiciary under its control.

The conservative Polish government’s push to take control of the judiciary is part of a larger effort to undermine democratic checks and balances that sparked fury in the EU and pushed the Commission to trigger an unprecedented rule of law probe.

The president of the European Parliament Antonio Tajani and several party group leaders have expressed outrage at the Polish government, and a senior European diplomat admitted the extent of concern among national governments: “Now nobody can say that rule of law is still valid,” the diplomat said, adding “The problem remains: how to deal with the issue without creating deep division?”

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The answer, said POLITICO’s Commission sources, is to move into a contingency planning mode.

One Commission official described the preparations as like polishing all of the tools in a toolbox so that each is ready to be used in case of an emergency. Another said that it is essential for the Commission to move in a “calm and gradual” manner, and only if and when a judicial reform is approved by both Parliament and Polish President Andrzej Duda.

The first legal action the Commission may undertake if the reforms and new appointments are pushed through would surface only in September and is known as an “accelerated infringement procedure.”

This type of disciplinary procedure would depend on the Commission identifying a specific piece of EU law that Poland has violated with judicial reform. In another recent controversy over Constitutional Court reforms in Poland the Commission was unable to identify such a violation.

In the case of controversial changes to judicial retirement ages in Hungary, the European Court of Justice in 2013 backed a Commission complaint that Hungary discriminated against older judges in an abrupt effort to remove them from office.

The EU’s “nuclear option” on the issue is use Frans Timmermans’ ongoing probe into “systemic threats” to rule of law in Poland to trigger Article 7 of the EU treaty. This would strip Poland’s voting rights at meetings of ministers and leaders.

EU members need a unanimous decision among all 27 member countries to implement sanctions, a difficult feat. POLITICO’s sources said that Hungary and possibly other national governments would block such punishment.

The rule of law procedure against Poland “remains on the table,” commission spokesperson Margaritis Schinas told reporters on Wednesday.