Polish court ruling deepens EU’s Rule of Law crisis

EU closes ranks, warning Warsaw it will use all its powers to ‘uphold’ bloc’s founding principles

By Andreas Rogal

Andreas Rogal is a Brussels-based journalist and copy editor

13 Oct 2021

The EU’s Rule of Law crisis - caused by the Polish Constitutional Tribunal’s (CT) ruling last week and confirmed and entered into the country’s law by its publication in the official gazette Dziennik Ustaw - continues to deepen.

Having declared three articles of the Treaty for the European Union (TFEU) as in breach of the Polish constitution, the government in Warsaw has chosen a course of total confrontation which, most observers believe, cannot be mitigated within the framework of EU law.

Last Friday, European Commission President Ursula von der Leyen expressed “deep concern” at the ruling in a statement, adding that “we will uphold the founding principles of our Union’s legal order. Our 450 million Europeans rely on this… We will use all the powers that we have under the treaties to ensure this.”

She received immediate backing from German Foreign Minister Heiko Maas, who said that “the Commission has our full support for its task of enforcing European law throughout the EU.”

Yesterday (Tuesday), Belgian Prime Minister Alexander de Croo ended his country’s annual State of the Union speech by saying: “For too long we have taken Europe for granted. Look at what's happening in Poland and Hungary. Suppressing minorities. Politicising the judiciary. This is unacceptable in our Union."

On a similar note, the President of the European Economic and Social Council, representing EU civil society, Christa Schweng, tweeted, ”For too long we have taken EU values for granted. #Poland has an obligation to respect EU law. I urge EU institutions to act”.

“For too long we have taken Europe for granted. Look at what's happening in Poland and Hungary. Suppressing minorities. Politicising the judiciary. This is unacceptable in our Union" Belgian Prime Minister Alexander de Croo

And today, six political groups of the Dutch parliament, representing a clear majority, have asked the Commission to not disburse any COVID recovery funds to Poland “until its government restores the independence of its judicial systems”, something the European Parliament’s majority has called for on several occasions.

Writing for the Parliament Magazine, German Green MEP and member of the Budget Control Committee (CONT), Daniel Freund argued on Monday that “European money can only be spent according to European rules!”

He suggested that “one way to enforce this is by using the Common Provisions Regulation. The regulation allows us to immediately freeze all subsidy payments to Poland”.

Siding with Poland, on the other hand, there has been only the usual suspects and partners in crime so far. Referring to the Disciplinary Chamber of the CT, which had been declared unlawful by the European Court of Justice (CJEU) in July, Hungarian Justice Minister Judit Varga told the Financial Times in an interview published today that procedures for disciplining judges were “completely normal and self evident in a democracy”.

The FT went on to quote her: “The witch-hunt is political, even though the EU founding treaties clearly indicate Poland made the right decision. The EU has no business around the Disciplinary Courts.”

In a move to counter arguments against the Polish decision in Parliament, the leader of the European Parliament’s Polish delegation in the ECR Group, Ryszard Legutko, representing the governing PiS party, sent an email to all MEPs on Monday which the Parliament Magazine has seen.

It refers to the crisis as one of the EU’s making and offers Poland’s help to address it: “We can see that the EU Treaties to a large extent are no longer in force or are used only as a pretext. The principle of equality of Member States is also being violated, and sometimes in a very drastic way”.

“European money can only be spent according to European rules... one way to enforce this is by using the Common Provisions Regulation. The regulation allows us to immediately freeze all subsidy payments to Poland” German Green MEP and member of the Budget Control Committee (CONT), Daniel Freund

Legutko also argues - as has been done by the Polish government on a regular basis - that the CT is not alone in “considering” the issues of primacy of the constitution of a Member State, and the CJEU’s “failure to respect the scope of competences delegated to the European Union by Member States”.

The most recent reference case for this argument is the decision of the German Constitutional Court (BVerfG) of May last year, ruling against the German government for complying with the EU’s recovery fund project and censuring the European Central Bank (ECB) for acting beyond its mandate.

The European Commission has recently started infringement procedures against Germany because of that ruling. However, the difference between the German and the Polish courts’ stance is stark, as European Parliament Vice-President Katarina Barley told us in an interview on Wednesday: “For one thing, the ruling of the German court went against the German government and parliament, as they are being sued”.

The former German federal justice minister added that, “in the Polish case, there was not even a concrete law suit. It was just the Polish prime minister requesting the Constitutional Tribunal to rule that the EU treaties violate the Polish constitution, and the court - illegally composed, as we know - happily obliged. It was, in fact, a ruling that the Polish government asked for.”

Some legal experts argue that the Polish move effectively amounts to an implicit triggering of Article 50 TFEU, and Polish EU exit, because it means that Poland has put itself outside the EU’s legal system. Others believe Article 50 can only be triggered explicitly, as was the case with Brexit.

In any case, most experts agree that Poland’s position represents a frontal assault. But, as Lukas Guttenberg of the Jacques Delors Institute think tank put it in a tweet on Wednesday: “One thing renegade governments routinely misunderstand: the EU is a consensus machine. Its essence is process. Within this process, you can escalate, be nasty, and fool others. But you can't cross the line of abusing the process or rendering it meaningless. Then you're on your own.”

“One thing renegade governments routinely misunderstand: the EU is a consensus machine. Its essence is process. Within this process, you can escalate, be nasty, and fool others. But you can't cross the line of abusing the process or rendering it meaningless. Then you're on your own” Lukas Guttenberg of the Jacques Delors Institute think tank

Following the weekend’s mass protests across Poland against the CT ruling many MEPs also expressed solidarity with the protesters and the Polish people.

Czech deputy Mikuláš Peksa (Greens/EFA), chair of the European Pirates, commented on Twitter over a picture of a crowd of demonstrators waving EU and Polish flags: 

“The Polish public has made it clear it does not want #Polexit! According to the latest surveys, 88% of Poles support staying in the EU. Poland definitely belongs in the EU! #we stay”.

And newly elected Vice-Chair of the EPP Group, former Lithuanian defence minister Rasa Juknevičienė tweeted including a similar photo:

“I strongly believe that #Poland not only will remain in the #EU but also will be an important leader in the region. It is necessary for the whole European continent and EU neighbours in the East”.

MEPs will, most likely, expand the already planned debate on abortion rights in Poland with the Rule of Law crisis at next week’s Strasbourg plenary session.

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