Unwilling or unable? Assessing the failure of the Rule of Law Framework and Article 7 TEU in Poland

Abstract

Since 2015 the Prawo i Sprawiedliwość (PiS) government in Poland has engaged in a process of rule of law backsliding, viz., it has eroded various forms of checks and balances in order to entrench itself in power. It has, inter alia, disabled effective judicial review, replaced judges in courts across the country, and introduced a disciplinary regime for recalcitrant judges. This process poses a threat to the very existence and functioning of the European Union: by controlling the judiciary, the regime can pick and choose which EU laws will be complied with. Such selective compliance undermines fundamental concepts upon which the very functioning of the EU’s legal order is based such as, inter alia, mutual trust, autonomy, and supremacy.

However, despite this threat, the EU’s institutions have thus far been unable – or unwilling – to adequately resolve this crisis. By considering the implementation of the Rule of Law Framework and Article 7 TEU, this thesis will present four key lessons the EU must adhere to in its future dealings with backsliding Member States. Namely, the EU must resort to hard enforcement; be responsive to the time-sensitivity of backsliding; ensure its tools are accessible; and avoid leaving the protection of its values solely to the protection of intergovernmental institutions. These lessons are believed to be integral to neutralising the threat posed by backsliding and persevering the integrity of the EU’s legal order.