The long running Rule of Law dispute between the European Commission and the Polish government has entered a new and, according to most observers, game-changing phase.
With the Commission’s request to the European Court of Justice (CJEU) on Tuesday to impose - and determine - fines on Warsaw for non-compliance with the court’s rulings from July, the financial aspect has, for the first time, explicitly been brought into play.
At the same time, the Commission also decided to send a letter of formal notice under Article 260(2) TFEU to Poland, for failing to fulfil an obligation under the treaty, in this case to comply fully with the court’s judgement finding that Polish law on the disciplinary regime against judges is not compatible with EU law.
Manfred Weber, the leader of the European Parliament’s largest political group, the centre-right European People’s Party (EPP) commented on the decisions on Wednesday, saying “It is a sad day for Poland, but inevitable as the Polish government continues to refuse the rulings of the European Court of Justice.”
“Rule of Law is not a political tool, it is a basic principle all EU Member States must respect. Without the Rule of Law there is no European Union.”
Polish S&D MEP Marek Belka - an economics Professor and former Polish finance minister –told the Parliament Magazine, "Unfortunately, imposing fines for ignoring ECJ rulings seems to be the only language that the Law & Justice (PiS) government understands when it comes to respecting the rule of law.”
"Unfortunately, imposing fines for ignoring ECJ rulings seems to be the only language that the Law & Justice (PiS) government understands when it comes to respecting the rule of law” Polish S&D MEP Marek Belka
He added that, “nevertheless, I am not sure if PiS leader Jarosław Kaczynski is aware of the severity of the situation. The disciplinary chamber of the Supreme Court must cease to exist. In that respect, the Commission has the full support of the European Parliament majority.”
Many law professors, experts and practitioners also welcomed the decision as long overdue. Marlene Wind, professor and director of the Centre for European Politics (CEP) at the University of Copenhagen tweeted on Thursday: “Finally Brussels steps up its action on the Rule of Law against the Polish PiS government for its punishment of ‘disloyal’ judges and its challenge to the supremacy of EU law. Good!”
Magistrats Européens pour la Démocratie et les Libertés (MEDEL), a European association of judges and public prosecutors, said in a statement: “MEDEL hopes that these initiatives will bring the Polish authorities to comply with the decisions of the CJEU and make all Member States reflect on the need to protect and respect the Rule of Law, in all its aspects.”
Professor Laurent Pech, head of the Law and Politics Department at Middlesex University quoted a particularly poignant statement by Commissioner Didier Reynders from an interview with the Financial Times on Wednesday with the EU Justice Chief saying, “I must say that we are at the end of the so-called dialogue on this with Poland.”
Commenting himself, Pech said, “Finally. It has taken almost six years of repeated/deliberate violations of Polish and European law to see the start of meaningful EU legal actions combined with financial actions.”
Also commenting on Reynders’ remark, Jakub Jaraczewski, Rule of Law research coordinator at the Berlin-based NGO Democracy Reporting International commented said, “One can argue that this dialogue was dead before it began, as the Polish authorities were seemingly never interested in engaging seriously with concerns raised by external stakeholders.”
“This is the right way in which words should be followed up by concrete actions. Injustice must not be allowed to become justice. There must be no exception to that and most certainly not if a cornerstone of our European Union, namely Rule of Law, is being undermined” Vice-Chair of the European Parliament’s Legal Affairs Committee (LIBE), German EPP Group deputy, Marion Walsmann
“Only now that financial pressure is being applied, we will hopefully see some changes.”
Many MEPs agreed. German Greens/EFA group deputy Daniel Freund of Parliament’s Budgetary Control Committee (CONT) commented, saying, “Reynders puts a hefty price tag on the Polish disciplinary chamber. Rightly so! You can't just violate the Rule of Law and keep receiving EU money.”
But some observers pointed out that daily fines imposed on Poland - yet to be set by the CJEU but generally believed to be between one and five million euro a day - would hardly amount to serious damage for the Polish government.
Thu Nguyen, policy fellow at the Berlin think tank/academic research hub the Jacques Delors Centre tweeted that, “even if Poland were to refuse to implement the ECJ judgement for a year, the sanction would be €365m” - if the fine were to be set at €1m per day - “a fraction of the €23.9bn at stake under the Recovery and Resilience Facility (RRF)”.
However the RRF tranche for Poland is still being “analysed” by the Commission and, recently, several members of its College have very publicly hinted that clearance of it will be linked to progress on the Rule of Law dispute.
German EPP Group deputy, Marion Walsmann, a Vice-Chair of the Parliament’s Legal Affairs Committee (JURI) told the Parliament Magazine, “We have been calling for the approval of EU funds to be linked to the observance of European fundamental values for a long time. This is why I very much welcome that the Commission has not yet paid any funds from the RFF to Poland. “
“This is the right way in which words should be followed up by concrete actions. Injustice must not be allowed to become justice. There must be no exception to that and most certainly not if a cornerstone of our European Union, namely Rule of Law, is being undermined.”
“The British showed that the dictatorship of the Brussels bureaucracy did not suit them and turned around and left. We do not want to go out… , but we cannot get chased into something that will limit our freedom and something that will limit our organic development” Deputy Speaker of the Polish Parliament (Sejm), Ryszard Terlecki
Reactions from Polish government and its representatives in the Sejm, the Polish Parliament have so far shown precious few signs of conciliation.
While the Financial Times reported that Michal Dworczyk, Prime Minister Mateusz Morawiecki’s chief of staff, had said on Wednesday that “misunderstandings” between Warsaw and Brussels may have contributed to the Commission’s move, the English language website Polish News reported on Thursday a more l belligerent response by Deputy Speaker of the Sejm, Ryszard Terlecki.
Speaking at the annual Economic Forum in Karpacz, Lower Silesia, Terlecki said that, “if it goes as it looks like it will, then we have to look for drastic solutions. “
“The British showed that the dictatorship of the Brussels bureaucracy did not suit them and turned around and left. We do not want to go out… , but we cannot get chased into something that will limit our freedom and something that will limit our organic development.”
The next big date coming up in this saga will be the new, and government appointed, Polish Constitutional Tribunal’s hearing on the supremacy of EU law on 22 September.
If the Polish Constitutional Tribunal rules against the primacy of EU law, then for the vast majority of MEPs in the European Parliament, that would be according to JURI vice-chair Walsmann “the straw that broke the camel’s back.”