The prologue couldn’t have been more dramatic. On Thursday the Polish Constitutional Court accused the European Court of Justice (ECJ) of interfering in the Polish judicial system and thereby violating the primacy of the Polish constitution over European law. That was an open declaration of war. In Brussels they immediately discussed how to force Poland back on the path of virtue with financial pressure. So it happens that a hearing is pending before the ECJ in Luxembourg on this very issue.
According to a regulation that has been in force since the beginning of the year, payments from the EU budget can be linked to the rule of law in the recipient country. A rule of law mechanism with financial consequences, and the EU Parliament has long been urging to use the new instrument in a hurry. But Poland and Hungary have sued against it, and the EU Commission apparently wants to wait for the verdict first. The ECJ will negotiate the lawsuits this Monday and Tuesday. One will only have to wait a few months, perhaps only weeks, for a judgment; the court is pushing the case forward as an accelerated process. And the crossfire of the Polish Constitutional Court should have dispelled any doubts that the ECJ will ultimately reject the lawsuits of those who deviate from the rule of law.
This EU Budget Protection Act is the last step of escalation in the EU’s efforts to stop the dismantling of the rule of law in Poland and Hungary. At first there was still negotiation and reminders. Then the Commission and Parliament initiated a rule of law procedure under Article 7, but this has so far not happened because of the mutual veto protection of Poland and Hungary. From 2018 onwards, Poland received one conviction after the other from the extremely determined ECJ. The provisional culmination point in mid-July was the decision by the highest court that the Polish disciplinary chamber – the keystone of a state-run judiciary – violated Union law. All of this has had little effect so far.
So the year 2021 is the year of money. The strategy of the financial rein began with the fact that the Commission has not yet released payments to Poland from the Corona reconstruction fund due to the rule of law deficits; it’s about an impressive 36 billion euros, two thirds of which is a grant. In addition, Brussels has applied for fines because Warsaw has not yet implemented the ECJ ruling on the disciplinary body. Here one counts more in millions; In the dispute over lignite mining in the Polish Turów district, for example, the ECJ imposed a fine of 500,000 euros per day as a fine.
The veto of Poland and Hungary no longer works
The regulation with the number 2020/2092 for the protection of the EU budget, about which the ECJ is now negotiating, could cause much more pain. The regulation lays down rules “necessary to protect the Union’s budget in the event of breaches of the rule of law in the Member States”, says Article 1. These “measures” include: suspension of payments, withholding of tranches , Loan cancellation. So the downsizing of justice can be really expensive.
Politically, the route via this regulation was much easier: While the rule of law procedure under Article 7 requires unanimity, a two-thirds majority was sufficient here. This is because, from a legal point of view, it is not about sanctions, but about safeguards for EU budget funds against unlawful use. And for that you need an independent judiciary. That is perfectly fine, says Martin Nettesheim, professor of European law at the University of Tübingen: “The EU allocates budget funds and has a legitimate interest in monitoring their correct use.”
If you look at Poland and Hungary, it is obvious to combine money and the rule of law. The young EU member is interested in payments from Brussels. Nobody can predict whether the financial pressure will really contribute politically to solving the conflict – or rather to exacerbate it.
However, what is stated on the packaging of each drug also applies to such remedies. One has to be aware of the risks and side effects. So the consequences for the entire structure of the EU. And here Nettesheim’s diagnosis is: “This is an intermediate step on the way to a federalization of Europe. We are observing the loss of the constitutional autonomy of states.”
Brussels could gain more power
Because the rule of law, which the EU is allowed to enforce with the leverage of finances, is by no means limited to the absolute minimum. The rule of law, according to Article 2 of the regulation, presupposes transparent, democratic and pluralistic legislative procedures and includes effective legal protection, including with regard to the separation of powers, non-discrimination and equality before the law. All without a doubt desirable basic conditions for every EU country. The question, however, is whether the EU should enforce such a finely detailed rule of law from above – an EU, by the way, which, according to its treaties, is actually not responsible for the judiciary.
In order to put Poland on the curb, it is completely sufficient to restrict oneself to the essentials of the rule of law, to the defense of the independence of the judiciary, which is no longer guaranteed there. In Nettesheim’s view, the fact that the EU definition of the rule of law goes far beyond this leads to a gradual shift of competencies in the direction of the EU: “With formulations such as pluralistic procedures, separation of powers or equality, practically everything can be subjected to Brussels control and regulation.”
It should therefore apply to this crisis what can be observed in all crises of this type: Often the rescuers emerge from it with increased powers. That is not an argument to forego the strategy of tight money to defend the rule of law – especially not after the escalation of the past few days. But it is a warning to look carefully at Brussels and Luxembourg.