The constitutional crisis of Poland has entered a new, uncharted territory
On Wednesday, December 20, the Commission has decided to activate for the first time in history the procedure of Article 7(1) TEU. According to this provision, the Council may determine the existence of a ‘clear risk of a serious breach’ of common EU values: democracy, the rule of law, and human rights. Under Article 7(1), the Council decides at a four-fifths majority after receiving the European Parliament’s consent. The Commission’s Reasoned Proposal, however, still leaves some room for dialogue and successful resolution of the crisis before the EP and the Council take a formal vote: Polish authorities have three months to implement the measures requested by Brussels; should they do so, the Commission would ‘reconsider’ its position.

The decision of the Commission follows almost two years of unfruitful discussion between Brussels and Warsaw under the so-called ‘Rule of Law Framework’, triggered in January 2016 as a result of the controversies concerning the composition and functioning of the Polish Constitutional Tribunal. Polish authorities have refused to implement the three ‘Rule of Law Recommendations’ issued by the Commission. On the contrary, earlier in December they decided to adopt a broader, and widely criticized, reform of the judiciary. The new reform largely reproduces the measures adopted before the summer and originally vetoed by President of the Republic Duda. According to the Commission, as well as several independent observers, the measures adopted unduly interferes with the independence of the Supreme Court, of lower courts, and of the National Council of the judiciary. Furthermore, the Commission still notes a lack of independent and legitimate constitutional review.

'Nuclear option'
The importance of the Commission’s move cannot be overstated, not only in the context of the Polish crisis, but for European constitutional law and politics at large. It has rightly reached the headlines of major news outlet, at EU and national level and has been widely discussed on social networks. However, there seems to be some confusion and approximation about the nature of the procedure activated. Several comments linked the Commission’s decision to the idea of EU ‘sanctions’ against Poland. Moreover, the idea of Article 7 as a ‘nuclear option’ still pops out in the first analysis. Yet there is nothing truly ‘nuclear’ in the Commission’s reasoned proposal. More specifically, there is no explicit connection between Article 7(1) and a possible, future imposition of sanctions against Poland – or for what matters, against any other EU Member State. Article 7(1), as noted above, can only lead to the determination of a ‘clear risk of a serious breach’ of EU values.

For sanctions to be imposed, another separate, not related procedure has to be followed: first, the European Council, previous consent of the EP, must establish at unanimity a ‘serious and persistent breach’ of EU values; then, a second separate vote of the Council decides on sanctions. Article 7(1) is not a pre-requisite for the activation of the other procedures contained in Article 7(2) and (3). Most importantly, its logic is not a punitive one. It serves on the other hand a preventive function and aims to resolve threats to EU values through dialogue between EU institutions and the Member State concerned. For this reason, it is arguable that the Commission could and perhaps should have activated it even earlier, after the failure of the Polish government to implement the previous Rule of Law Recommendations. However, the popularity of the unfortunate and ultimately mistaken label of ‘nuclear option’, as applied to the entire Article 7 scheme (also to the preventive ‘arm’ of the first comma), may explain the reluctance of the Commission to activate the procedure.

European constitutional law at large
If this is true, however, it might follow that the decision to proceed under Article 7(1) is actually not as significant as the Commission put it, and that it will hardly contribute to resolve the rule of law problems in Poland. I would suggest otherwise. First, the Commission’s move obviously increases the pressure on the Polish government by raising public attention on the crisis. In this sense it is important to underline that the reasoned decision comes in a package that also contains a fourth Rule of Law Recommendation and the last step of an infringement procedure concerning the Law on Ordinary Courts. If the requested measures are not adopted, Poland will also have to face a Court of Justice’s judgment. Furthermore, the decision is groundbreaking because it further ‘Europeanizes’ the Polish crisis. In the coming months, the crisis will not be merely a conflict between ‘Brussels’ (i.e. the Commission) and Warsaw, as Polish authorities have often attempted to frame it, adopting a ‘us’ v ‘them’ logic, opposing ‘European technocracy’ to national democracy.

The need for a vote in the Council implies that Berlin and Paris, Athens and Madrid, but also Budapest London, and Vienna - to name some certain and possible future allies of the Polish government – will also be forced to participate to the debate and they will ultimately play a crucial role. In a press conference after the December’s European Council, President Macron and Chancellor Merkel seemed inclined to take a strong stance, but it is still to be seen how other national governments will position themselves. It has to be recalled that under 7(1), 22 out the 27 participating Member States – Poland will be excluded from the vote – must vote in favor for the ‘serious risk’ to be established. Even a negative Hungarian vote, as promised several times by Prime Minister Orban, would not block the Council decision.

Wholly different stage
The Commission’s decision thus radically changes the context of the debate. For Poland it becomes much more difficult, if not impossible, to accuse EU authorities of overreaching into domestic affairs, if pressure comes from their ‘peers’ in the Council rather than from the Commission. In other words, the conflict would not be anymore between the Commission and Poland, but between the EU as a whole – supranational institutions and the Member States – and one of its Members. We are now therefore at a wholly different stage of the crisis. An uncharted one, as noted earlier. In a moment of crucial discussions on the future of Europe – with Brexit and Eurozone reforms being arguably the two most controversial subjects – EU Member States will also be called to formulate a public position on a question which tests the limits, the boundaries of European constitutional law.

Further developments of the Polish saga will test the claim the EU is a ‘Union of Values’, as often repeated by Commission Vice-President Timmermans in the recent debate, and ultimately shed light on the Member States’ own understanding of the nature of European integration: do they still consider the EU, first and foremost, an economic project, or is it really a political, values-based polity? This is truly a fascinating moment for anyone interested in European constitutional law.