A constitutional question for Europe
Max Planck Forum event on the controversial constitutional reforms in Poland
The constitutional conflict in Poland is a topic that involves the whole EU – that was the unanimous opinion of experts in national and constitutional law who came together to discuss how European values can be preserved in the face of the collision course with the Polish government.
Serious institutional reforms initiated by the new Polish government aimed at restructuring the country’s constitutional tribunal as well as interfering in public service broadcasting authorities and the civil service have ignited a lively debate in the EU concerning the protection of the rule of law and democracy within the European constitutional area. This topic was the focus of a Max Planck Forum event entitled “How to Protect European Values – Assessing European Responses to Recent Reforms in Poland” which was held in Berlin in mid-March. Discussion participants included Armin von Bogdandy, Director at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, the Polish Commissioner for Human Rights Adam Bodnar, Christoph Grabenwarter, Judge at the Austrian Constitutional Court and Vice-President of the Venice Commission, as well as Renáta Uitz, Professor for Comparative Constitutional Law at the Central European University in Budapest. The forum was chaired by Alexandra Kemmerer, Academic Coordinator at the Max Planck Institute for Comparative Public Law and International Law.
The discussion centred on the opinion provided by the European Commission for Democracy through Law (“the Venice Commission”) on the current rule of law in Poland requested by the Polish Foreign Minister. This opinion was published shortly before the forum and offered a dramatic assessment: By paralyzing the constitutional court, the Polish government is eroding democracy, human rights and the rule of law.
First dialogue, then sanctions
The criticism expressed in the opinion was picked up on within the discussion. Christoph Grabenwarter pointed out the unusual speed of the process and emphasized that the constitutional court as “custodian of the constitution” may not be at the disposal of the parliamentary majority. Renáta Uitz bemoaned the fact that the constitutional court has become a target in Poland, as in Hungary. Adam Bodnar, the Polish ombudsman, expressed his abashment at the current constitutional crisis and encouraged “creative solutions” away from a hard confrontation between the government and opposition.
Armin von Bogdandy also underlined the necessity for a dialogue-driven approach – including on European level. He went on to highlight Poland’s close connection to the European identity in terms of the nation’s history. “The Polish Constitution of 1791 was a landmark in European constitutionalism, as it became the first written modern constitution in Europe.” He then added that the EU has good reason to get involved in the affair, as fundamental values are threatened; the legal options available are outlined in Article 7 of the EU Agreement. According to this Article, a member state can be excluded from voting rights and financial transfers if there is a danger of fundamental principles being seriously infringed upon. Bogdandy does not view the use of this lever as something unrealistic per se. He said that it required unanimity in the council of the EU states and heads of government. However, he also explained that this can be achieved by specific states withholding their votes.
Lea Brinkmann, Sandra Sobol