2021 has seen an unprecedented escalation of the conflict between the European Union’s institutions and the Polish government on the Rule of Law.
As the damage to judicial independence and the erosion of checks and balances in Poland worsened - as seen in the recent World Justice Project Rule of Law Index - the reaction from the EU has ramped up significantly.
Three major events defined the dynamic of the struggle over the Rule of Law in Poland when seen from the perspective of a clash between Brussels and Warsaw.
First, in July the “Battle of the Courts” took place, where the Court of Justice of the European Union and Polish Constitutional Tribunal clashed over Poland’s obligations arising from EU law.
The Luxembourg court issued an interim order and a judgement in two infringement cases concerning the Disciplinary Chamber of the Polish Supreme Court and the system of disciplinary action against judges.
In return, the Polish Tribunal declared that interim orders issued by the Court of Justice of the European Union (CJEU) in judiciary and courts were incompatible with the Polish Constitution. The interim order was followed up on later by the European Commission, which successfully requested the CJEU to issue a financial fine for non-compliance by Poland with that order.
The penalty for that was set at a record value of a million euros a day. The July CJEU judgement, however, wasn’t yet followed up on by the Commission with a similar request, despite Poland flouting that as well, something those in the Berlaymont could consider during the last few working days of 2021.
"While the Resilience and Recovery Facility (RRF) was not foreseen as a tool designed to help enforce EU values, the Commission found a way to link the approval of RRF plans to the state of the Rule of Law in EU Member States, halting the approval - and the pay out - of funds for Hungary and Poland"
The second clash took place in September, when the Commission withheld the approval of Poland’s Resilience and Recovery Facility (RRF), namely the EU’s Covid-19 recovery fund spending plan, over concerns regarding the Rule of Law and independence of the judiciary.
While the RRF was not foreseen as a tool designed to help enforce EU values, the Commission found a way to link the approval of RRF plans to the state of the Rule of Law in EU Member States, halting the approval - and the pay out - of funds for Hungary and Poland.
For Poland, this amounts to €36bn, a massive amount and a vital one given the increasingly strenuous economic situation of the country. In addition, Poland faces the prospect of a potentially devastating wave of the Omicron variant of Covid-19 and the danger of a Russian attack on Ukraine and its consequences for Poland.
Despite intensive negotiations on unlocking the funds and some voices in the Commission calling for Poland to be let off the hook, so far, those in the EU Executive who are in favour of using the fund as leverage for protecting the Rule of Law have fortunately prevailed.
Third, in October the Polish Constitutional Tribunal heard another case concerning EU law brought about by Prime Minister Mateusz Morawiecki. The Tribunal handed out an unprecedented judgement finding that the primacy of EU law does not apply with regards to laws concerning Polish judiciary.
While ostensibly presented as a clash between the Polish Constitution and EU treaties, this case was a political attack on the CJEU and an attempt to provide the Polish government with the superficial legal ground for ignoring CJEU rulings concerning the judiciary.
"Time will tell whether the Commission will be able to keep up the pressure on the Polish government and won’t cave into “pragmatic” voices calling for economic interests prevailing over the values of democracy, human rights and the Rule of Law"
Soon afterwards, the Polish Constitutional Tribunal launched a similar assault on the European Convention on Human Rights. This clearly showed that the struggle for the Rule of Law in Poland isn’t just about a disagreement between Brussels and Warsaw on how the EU is to be set up.
These developments have sparked worries about other EU Member States abusing their constitutional courts in bad faith against the common legal order and human rights law. CJEU President Professor Koen Lenaerts has expressed his worry about a clear danger to EU law posed by such developments.
The Commission did not let that challenge pass unanswered and just days before Christmas has initiated an infringement procedure against Poland over the recent judgements of its constitutional court.
2022 is shaping up to be a dramatic year for the struggle for the Rule of Law in Poland - with dozens of incoming judgements from both CJEU and the European Court of Human Rights, as well as further actions by the Commission and responses to those from increasingly antagonistic Warsaw.
Time will tell whether the Commission will be able to keep up the pressure on the Polish government and won’t cave into “pragmatic” voices calling for economic interests prevailing over the values of democracy, human rights and the Rule of Law.
The concept of the EU being a value-based actor is being tested right now, and its ability to push back against damage to the Rule of Law in countries such as Hungary and Poland will define whether the EU can live up to its noble commitments.