The European Commission's repeated admonishments of the Polish government for not respecting EU standards on the rule of law have done little this year.
Warning at the end of July of a systemic threat to the rule of law in Poland, the commission gave the Polish government three months to respond, or else.
But there's the rub.
The Polish government has no intention of taking the measures required by the commission.
But that leaves the only tool left in the toolbox for making member states uphold democracy, the rule of law and fundamental rights, the all or nothing "nuclear" option, of triggering the Article 7 procedure, that may ultimately lead to sanctions, such as suspension of voting rights.
The commission has the power to propose the activation of Article 7, which will be decided by four-fifths of the council, after obtaining the European Parliament's consent by a two-thirds majority.
Given the seriousness of the conclusion of the commission: a "systemic threat to the rule of law," you would expect the commission to take the biggest of the few instruments available.
Although Poland is currently in the sights of the commission, “systemic threats” to the rule of law are not confined to Poland alone.
Singling out one member state, while ignoring others, risks a double standard.
There is nothing like inconsistency in the application of rules to undermine trust and respect for the rule of law.
There isn't even a lack of capacity to monitor member states evenhandedly.
Two ways of looking at a problem
A recent interview with Belgian newspaper Le Soir, commission president Jean-Claude Juncker shows he's thrown in the towel.
He says, "things have slipped in a number of countries and we do not know where they would take us. In the European treaties, Article 7 provides possible sanctions against countries which would go awry with respect to the EU’s universal principles."
"It is a ‘nuclear option’. But there are already some member states which are saying that they will refuse to use it. This a priori refusal cancels de-facto Article 7," he went on to say,
"I note this with sadness and disappointment. I hope that people will not give free rein to those who will, in the end, harm them".
But at last month’s plenary, first vice president Timmermans gave a very different message when debating a proposal of the parliament for an EU pact on democracy, the rule of law and fundamental rights (DRF Pact).
He was confident the existing toolkit is sufficient to tackle serious threats and breaches of the core values and standards of the EU.
"We have a range of existing tools and actors that already provide a set of complementary and effective means to address rule of law issues," he said.
"The existing treaties give us the tools, so let us use them. At the end of the day, this is a very political process."
In essence, Juncker says: we have no more tools.
Timmermans, on the other hand, says: we have all the tools we need.
This makes the two out to be more Laurel and Hardy, than Bob the Builder.
Juncker has the power
But Juncker is not as helpless and empty-handed as he thinks himself.
He has the right and the duty, as custodian of the treaties, to use Article 7 if his commission notes a serious threat to the rule of law in one of the member states, independently of the positions in council or parliament.
He should embrace the proposal put forward by the parliament for a DRF Pact.
The DRF Pact foresees the monitoring of all member states on an equal footing, on an ongoing basis, rather than crisis-driven.
The annual "DRF health check" will closely involve the national parliaments, consult with a variety of independent experts and civil society and make use of a wide range of sources.
The proposal for an EU pact on democracy, rule of law and fundamental rights has the support of a broad and solid majority in the parliament (405 Members in favour, 171 against and 39 abstained).
In addition, the council is discussing options for strengthening the council rule of law dialogue.
Its deliberations reflect many of the principles underlying the parliament proposal.
There is even a group of 13 member states, dubbed "Friends of the Rule of Law group", taking a lead role in the evaluation.
So far from being helpless, Juncker has a more complete toolkit within reach and support in parliament and council.
All he needs to do is follow the momentum, put forward a proposal in response to the parliament's report, and give us new and effective ways to uphold democracy, the rule of law and fundamental rights.
Jean-Claude Juncker, you can fix it!
Frank Engel (EPP, Luxembourg), György Schöpflin (EPP, Hungary), Birgit Sippel (S&D, Germany), Sophie in ‘t Veld (ALDE, The Netherlands), Barbara Spinelli (GUE/NGL, Italy), Ulrike Lunacek (Greens/ALE, Austria) are members of the European Parliament."
The article was first published in the EUObserver. You can find it here.