Time for the EU to Grow Some Teeth
Better Late than Never

As the judicial situation in Poland has been snowballing in recent days, the EU Commission has recently threatened sanctions against Poland for the current government’s attack on judicial independence. It has warned Poland that unless the current bill is retracted, then the EU will suspend Poland’s voting rights. While there have been commentaries about the bill’s effect on Poland’s democracy, there has not been much written about if the EU would take action. The thing is, the EU has threatened to trigger Article 7 several times in the past against Poland and Hungary for various reasons and nothing has ever come of these threats. So would the EU actually stay by its word this time or would it be yet another red line in the sand?
The EU has used harsh language to describe what is happening in Poland. Commission Vice President Frans Timmermans said that the EU is “very close” to triggering Article 7 on Poland. European Council President and former Polish Prime Minister Donald Tusk described the crisis as Poland going “backwards and eastwards.” That last insult in particular brings to mind Russian autocracy. The question is matching this rhetoric with real action against the Polish government.
The closest that the EU has come to action against Poland in recent months was over Poland’s refusal to relocate refugees allocated under the EU’s relocation scheme. In response the EU launched legal action against Poland, Hungary, and the Czech Republic. However, as other commentators have pointed out, around 70% of Poles do not want refugees from the Middle East and Africa settling in Poland. This opinion spans not only Law and Justice’s right-wing supporters, but no doubt includes the Polish center-right and center who do not support the current government. The EU taking action for this particular reason would have unnecessarily inflamed Poles who are against the government. It would have been the wrong hill for the EU to die on.
But what is Article 7? It’s located in the Lisbon Treaty which was signed in 2007. There are five paragraphs to it; the first three deal directly with the troubled state, first with a warning, then by eventually silencing them. However, the main focus in this case is the third paragraph which determines that:
Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council.
In short, where a breaching of EU protocol and behavior has been seen, the European Council will suspend the voting rights of the state violating EU law. It is not a sort of forced Article 50 that kicks the Member State out of the EU for violating norms. Article 7 has never been implemented even in its warning form, despite cries by some European politicians that Hungary and Poland should have been slapped with this for years. As an example, the current cry for Article 7 has followed after year and a half of Law and Justice taking over public media, a decline in press freedom, and implementing environmental policy that has received worldwide criticism. The EU has drawn this latest line after the Sejm has passed multiple bills threatening the rule of law, including one would fire all of the Supreme Court judges except for those sworn-in by the Justice Minister. President Andrzej Duda has said that he would sign those bills into law. For an excellent English-language explanation of the crisis by a Polish publication, I recommend this ongoing coverage by Polityka Insight.
Ideally, Article 7 should have been thrown at Hungary a few years ago, when Prime Minister Viktor Orban defended policies that threatened the independence of the Hungarian judiciary and the independence of the Hungarian Central Bank. Since then, independent media in Hungary has been attacked, newspapers critical of the government have shut down, and the public media is directly under the state control similar to Poland. As the EU did nothing, Orban, and Law and Justice since 2015, have felt emboldened to implement policies that centralize the state under their control. Yet the EU has done nothing in response. Despite angering the EU and using Eurosceptic discourse to rally their political base, Poland and Hungary are enormous recipients of the EU’s Cohesion Policy for underdeveloped areas. Just as an example, the EU has relocated €86 billion for development in Poland from 2014–2020. This has angered some Western European critics of their politics most infamously the new French President Emmanuel Macron comparing their treatment of the EU to a “supermarket” and calling for sanctions against them.
The time has come for the EU to defend the rule of law. The EU is setting itself up for a show of strength or toothlessness. Laying down another red line that Law and Justice would simply cross would signal that the EU will do nothing against Member States undermining the EU’s fundamental freedoms and would only encourage the Polish and Hungarian governments to seize more control in the country. It would be nice for the EU to finally do something about the backsliding of democracy in Central Europe, but history has shown that the EU’s red line is weak. Triggering Article 7 against Poland would at least show that the EU does have a red line. The ball is in the EU’s court.