Rule of Law dispute between Poland and EU sees both sides further entrench their positions

Constitutional crisis ‘on the road right into the abyss’, warns senior MEP Ska Keller
The Constitutional Tribunal sign is seen on April 15, 2021 in Warsaw, Poland. Credit: Aleksander Kalka/ZUMA Wire/Alamy Live News

By Andreas Rogal

Andreas Rogal is a senior journalist at the Parliament Magazine

19 Oct 2021

When the escalating Rule of Law dispute between Poland and the EU reached the second October plenary session for Tuesday’s key debate, it, once again, was made as clear to everyone who still cared to listen that the two sides have dug in and we are witnessing the political equivalent of trench warfare.

“You had the opportunity to rehabilitate yourself”, prominent Polish opposition politician Robert Biedroń (S&D) told his country’s prime minister Mateusz Morawiecki in his one-minute response to the latter’s 33-minute monologue, “but you missed it.”

Morawiecki made no attempt to correct the impression of sheer contempt for the European Parliament evoked by his letter to the European Council and EU institution presidents on Monday.

The European Parliament was not mentioned once in the parts of the prime minister’s letter which argued that there is a democratic deficit and a lack of representation of citizens in the EU.

It was no surprise, therefore, that the vice-president chairing the beginning of the debate, Pedro Silva Pereira (PT, S&D) expressly welcomed Morawiecki to “the home of European democracy”.

However, the Polish prime minister either failed, or chose to ignore the hint.

In what, for the first twenty minutes sounded like an alternative State of the Union speech, Morawiecki elaborated at length about the threat of energy prices, the NorthStream 2 gas pipeline and Belarusian weaponising of migrants at its EU borders, painting a picture of a Europe in clear and existential danger.

"In what, for the first twenty minutes sounded like an alternative State of the Union speech, Morawiecki elaborated at length about the threat of energy prices, the NorthStream 2 gas pipeline and Belarusian weaponising of migrants at its EU borders, painting a picture of a Europe in clear and existential danger"

When Silva Pereira reminded him that he had exceeded his allotted speaking time, Morawiecki snapped, switching into English, “I have 35 minutes and I intend to fully make use of them.” And when the vice-president replied, “I cannot confirm this”, the prime minister simply told him “Do not disturb me”.

The EPP Group’s Vice-Chair Siegfried Muresan (RO) commented on Twitter: “The Prime Minister of #Poland Mateusz #Morawiecki had 5 minutes speaking time allocated in the European Parliament. He spoke for 33 minutes. He broke the rule the moment he entered the European Parliament. He broke a rule, he knew he broke it and did not care. Everyone saw it.”

And if he had hoped to change any hearts and minds with his speech, Morawiecki found himself mistaken.

The defenders of the Polish government’s actions and position remained limited to members of his own party and parts of their group, the Hungarian ruling party, and the far right, who gave Morawiecki a standing ovation.

Opening the debate, for the European Council’s rotating Presidency Slovenian Minister of Foreign Affairs Anže Logar underlined the importance of the Rule of Law and the primacy of EU law over national law.

Following him, the President of the European Commission, Ursula von der Leyen, reiterated her “deep concern” saying, “This ruling [of the Polish Constitutional Tribunal] calls into question the foundations of the European Union. It is a direct challenge to the unity of the European legal order.”

She also reminded that, in the eyes of the European legal system, including the European Court of Human Rights, the Constitutional Tribunal is not a legitimate court.

"The President of the European Commission, Ursula von der Leyen, reiterated her “deep concern” saying, “This ruling [of the Polish Constitutional Tribunal] calls into question the foundations of the European Union. It is a direct challenge to the unity of the European legal order.” She also reminded that, in the eyes of the European legal system, including the European Court of Human Rights, the Constitutional Tribunal is not a legitimate court."

Von der Leyen did announce that the Commission would use one of three options to react:  infringements, “the conditionality mechanism and other financial tools”, or “coming back” to the Article 7 procedure, the current one being currently held up in the European Council.

She did not, however, offered more concrete details, explaining that the Commission was still analysing the Constitutional Tribunal’s 8 October ruling.

This did not go unnoticed by MEPs, and member after member called for swift action, as dialogue - most recently suggested as a continued way forward by the outgoing German Chancellor Angela Merkel – had, for most deputies, run its course.

Renew Group Vice-Chair Malik Azmani (NL) demanded of the Commission “to act immediately on the following: reject the recovery plan for Poland, trigger the conditionality mechanism: no more ifs, or buts.”

Parliament had expressed its dissatisfaction with the Commission’s hesitation in implementing the Regulation many times before, and the Committee of Legal Affairs (JURI) voted last week to take the Commission to the European Court of Justice (ECJ) over it.

This plenary will not vote on it in this plenary session, but EPP Group Chair Manfred Weber had another idea in this debate: “Some are discussing to take the @EU_Commission to court. But shouldn't we in fact challenge the European Council for inaction on the #RuleofLaw? Prime Ministers make nice statements before Summits, but when the doors close, there is silence. This is a big failure for Europe”.

The Polish government’s supporters argued, once again, that the decision of the Constitutional Tribunal was just another constitutional court asserting its position vis-a-vis the ECJ but two former national ministers of justice among the MEPs debunked this argument authoritatively.

"Greens/EFA Co-president Ska Keller (DE) summed up the situation up with these words: “I haven’t heard any ideas from you [Prime Minister Morawiecki] on how to get out of this crisis. Which is the way forward? It seems to be the road right into the abyss”

EPP Vice-Chair and former Irish Justice minister Frances Fitzgerald said “I remember what we signed up to when our country joined the EU. EU law is above national law. I know because we changed our constitution to make it so in 1972, as so many others did.”

And the former Justice Minister of Germany, Parliament Vice-President Katarina Barley (S&D), pointed out the substantial difference between the German Constitutional Court’s (BVerfG) argument and adverse ruling against the ECJ, for which the Commission has now nevertheless initiated an infringement procedure.

She told the plenary that the BVerfG “ruled against the government which heavily fought for a different outcome. In the Polish case, the government asked for a decision and the court delivered it. The Polish constitutional court was designed to serve the government, not to control it.”

In a rather bizarre twist, the Polish Justice Minister announced yesterday that he would take Germany to court for a “politisation” of its system of appointment procedure for judges.

The most enthusiastic irony-free response to it in this debate came from the German delegation of the ID Group.

During the last hour of the debate, the supporters of the Polish government seemed to mysteriously have run out of speakers, and the prime minister heard some passionate pleas to change his collision course and some rather blunt criticism.

Former Polish Commissioner Janusz Lewandowski (EPP) quipped: “The Polish government is driving on the wrong side of the road and is blaming everyone else.”

In her closing statement, the Commission President clearly seemed annoyed at the Polish prime minister. “Don’t try and run away from the issue”, she told him, after he had, once again made reference to the NorthStream 2 pipeline when reacting to criticism that he played into Russia’s hands by weakening the EU, in his closing remarks.

While underlining the need to respect all steps of the process, von der Leyen seemed, if anything, more determined to react strongly to Poland’s digressions with the tools at the Commission’s disposal than at the beginning of the debate.

Greens/EFA Co-president Ska Keller (DE) summed up the situation up with these words:

“I haven’t heard any ideas from you [Prime Minister Morawiecki] on how to get out of this crisis. Which is the way forward? It seems to be the road right into the abyss.”

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