How the rule of law toolbox fails to tighten the screws

On the 11th of January 2020, judges from 20 European countries marched with their Polish colleagues through Warsaw in a silent protest against repressive new measures aimed at Polish judges. The many EU flags rising above the crowd could be seen as cries for help to Brussels. We cannot defend our independence alone, we need the EU to step in and step it up. But the EU’s current rule of law toolbox has been painfully ineffective to enforce the principle of judicial independence (JI) in Poland. Concerned about the Polish government’s judicial reforms, the Commission has used every tool in the toolbox. But, after two years of unfruitful dialogue under the Rule of Law Framework – ending with launching the Article 7 procedure in 2017 – and four infringement proceedings (and counting) later, the first edition of the new Rule of Law Report in 2020 does not paint a flattering picture of the current state of the Polish judiciary’s independence. This blog post argues that these failures were quite predictable, as the rule of law toolbox fails to put the right tools in the right hands. Notwithstanding the blame rightly put on the EU institutions for failing to make effective use of the available mechanisms, the different tools all have inherent qualities that hinder their effectiveness to enforce the principle of JI upon a Member State (MS) – especially when threats are widespread and deliberate. The new rule of law budget conditionality mechanism can hopefully offer the Commission a more powerful tool to force MS compliance, but doubts remain whether it will be applied effectively.

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