Again (and still) Poland: rule of law and art. 7 TEU in the European Parliament and the Court of Justice

Abstract

As one of the consequences of the protracted EU crisis aroused by the 2009 Great Recession -the deepest and the longest ever throughout the European process-, both the EU and its Member States have witnessed a growing concern about democratic backsliding and fundamental rights backlashes. Since both the Lisbon Treaty and the ECFR entered into force (December 2009, the EU Institutions have developed new strategies to reinforce and strengthen their ability to test Member States Law making standards as to their due respect to common constitutional values and principles, enshrined in art. 2 TEU ("Copenhagen Criteria p). By doing that, they have unfolded as well new instruments to prevent, control and correct potential risk of backward steps at the Member States National level, be it via constitutional or via legal reforms. Hungary and Poland are paramount cases, in as much as they have called for: extrajudicial actions (Rule of Law Mechanism); infringement procedures by the Commission (art.258 TFEU ), and EP Resolutions calling both the Commission and the Council to initiate art. 7 TEU. This Paper examines recent developments in the sphere of Rule of Law, in view of extending its scope to a new Policy Cycle on Rule of Law, Democracy and Fundamental Rights, encompassing overall and regular scrutiny of all of the Member States by means of objective indicators, as a way to overcome the limits (and unlikely outcome) of the so-called "nuclear option" of art. 7 TEU. It builds on the proposal of linking access to EU Funds and budgetary benefits with full compliance with Rule of Law, Democracy and Rights EU standards. This Article focuses mainly on Poland. It adds to an overview and assessment of the latest ECJ rulings on Polish Judicial reforms led by the far conservative ruling Party (PiS), deemed to be incompatible with EU Law. It ends with conclusive remarks on the need on the need of making progress in the European path to multilayer constitutionalism and binding European Law above "national identity".