The EU’s role in policing the rule of law: reflections on recent Polish experience

Abstract

Although Brexit has understandably been the primary focus of much recent EU-related discussion, it is not the only threat to the EU’s long-term stability. The growing impact of populism has already influenced the Brexit referendum result and an anti-liberal resurgence within the EU. Events in Poland have led to criticism of the EU’s apparent impotence in counteracting governments determined to implement an antiliberal, national-populist legislative agenda that threatens the rule of law. This article offers a critical analysis of the mechanism contained in Article 7 TEU and the tools created by the European Commission within its New Framework, viewed through the prism of escalating violations of the rule of law in Poland, with particular focus on the destabilisation of the Constitutional Tribunal. It analyses whether such criticisms are justified and, if so, whether a more robust framework for addressing anti-liberal populism is required. We compare the EU’s evolution into an organisation that protects individual human rights with its fledgling evolution into an organisation that seeks to police the rule of law. We argue that, in contrast to its successful human rights evolution, the EU’s current efforts towards enforcing the rule of law give little cause for optimism.