The dispute over the right way to deal with Poland and the speculation about a “Polexit” put the European Union under considerable stress. Because Poland demonstratively no longer wants to submit to European law, many European parliamentarians and some heads of state and government are pushing for tough action against the country, specifically: the withdrawal of budget funds. Chancellor Angela Merkel, on the other hand, is trying to defuse the issue before the EU summit on Thursday and Friday this week in Brussels. She apparently shares with others in the EU the concern that the Union could become incapacitated if the dispute escalated and Poland and Hungary blocked all pending decisions. What all sides have in common: Nobody currently knows a way out.
In a speech to the European Parliament in Strasbourg this Tuesday, the Polish Prime Minister Mateusz Morawiecki will probably deny fears that his government wants to lead the country out of the EU. It was precisely this concern that leading opposition politicians expressed during a European debate in the Polish parliament on Thursday last week. There Morawiecki compared the “Polexit” with the Loch Ness monster, but insisted that Poland was being “attacked” by the European institutions. In Strasbourg, Poland’s head of government will presumably defend the constitutional court ruling of October 7th, which he himself brought about, according to which parts of the EU treaties are incompatible with the Polish constitution.
Morawiecki sent a letter to EU heads of state and government on Monday arguing that Poland still respects the primacy of EU law, but does not renounce constitutional scrutiny. The EU could soon no longer be a union of free states, warned Morawiecki in the letter published by the government. “I mean the gradual transformation of the EU into a subject that is no longer the federation of free, equal and sovereign states – but becomes a centrally governed organism run by institutions without the democratic control of the citizens of Europe.”
In fact, Poland is not only disregarding the decisions of the EU Commission and the European Court of Justice (ECJ) when it comes to dismantling the rule of law: After the ECJ ordered in May that Poland must immediately close the Turów open-cast lignite mine in the triangle, which was continued in disregard of EU law End Germany and the Czech Republic, Morawiecki also ignored this order.
In Strasbourg, Morawiecki is likely to insist on the alleged independence of the judiciary in general and the constitutional court in particular. In fact, recently email exchanges between Morawiecki and his head of the firm became known, according to which decisions about judicial posts, for example at a politically controlled special chamber at the Supreme Court, were closely coordinated between the Prime Minister, the Polish President and the constitutional court president Julia Przyłębska, who was not authorized to do so .
Przyłębska meets regularly with Jarosław Kaczyński, who is nominally only Vice Prime Minister, but head of the ruling PiS party and the actual head of government. Since Przyłębska has headed the Constitutional Court, the court has not made a decision of any weight against the government. Accordingly, the judgment of October 7, which is based on a 100-page brief from Prime Minister Morawiecki, was seen as a declaration of war on the EU: Poland will not allow the EU to slow down the government’s policy of bringing the entire judiciary under its control.
Jurists known as “doppelgangers” also took part in the ruling of the Constitutional Court. According to a ruling by the European Court of Human Rights, they were illegally enforced by the PiS – instead of constitutional judges who had already been elected in accordance with the law. The European Parliament already sees the Polish court as “illegitimate”. 26 former constitutional judges, including four ex-court presidents, criticized the verdict containing factual errors. Independent Polish lawyers even consider the judgment to be invalid because of the participation of the “doppelgangers”.
Commission President Ursula von der Leyen, who will also speak in the Strasbourg plenary, is under heavy pressure to take action against Poland. Last week, the Parliament’s Legal Affairs Committee voted with a large majority in favor of an “action for failure to act” against von der Leyen, which was interpreted as a final warning. The President of the Parliament would have to submit the complaint. Also in the debate on Tuesday, the demand is likely to be loud that the Commission should immediately apply the so-called “rule of law mechanism”. It would make it possible to freeze budget funds on a broad front if the rule of law is violated.
The EU Commission could of course have taken action against Poland before the rule of law mechanism came into force, and soon after the start of the dismantling of the rule of law that began there at the end of 2015, it could have immediately sued the European Court of Justice (ECJ) and later applied for fines running into the millions. However, the commission refrained from doing this for years and for a long time relied on an – ultimately fruitless – “dialogue” with Warsaw.
In an order of July 14 and a judgment of July 15, the ECJ obliged Poland to dissolve a number of judicial institutions that had been brought under political control or to make them independent again – in addition to a disciplinary chamber, for example, a state judicial council to select all judges – and to legislate for them change. Poland disregards these ECJ rulings and has not yet submitted a draft law to correct the dismantling of the rule of law.
On the contrary: According to the latest statements by Kaczyński and Attorney General Zbigniew Ziobros, there are already draft laws that end the “anarchy that prevails in Poland’s courts today” (Kaczyński), in other words: to further expand the control of politics over the judiciary. Because of Warsaw’s disregard of the July decisions of the European Court of Justice, the EU Commission has applied for high daily fines from the European Court of Justice – one million euros per day are under discussion. Of course, Poland could easily afford such fines itself if the EU pays other billions from the EU budget to Warsaw.
Poland and Hungary help each other
At the European Council of Heads of State and Government on Thursday and Friday, Poland is not on the official agenda, but some Prime Ministers, such as the Dutchman Mark Rutte, are expected to raise the issue. Patience with Poland is coming to an end. Chancellor Angela Merkel, on the other hand, is known to continue to rely on dialogue. She called the parliamentary threat of legal action “sad”. She advised against using the rule of law mechanism now. One reason: when the mechanism was adopted last year, the governments of Poland and Hungary were promised that the procedure would only be applied once the European Court of Justice had ruled on its legality. That should take a few more weeks.
The Commission likes to defend itself by arguing that, unlike Hungary, Poland is not a corrupt state per se. That is why it is difficult to justify the procedure in such a way that it is also valid before the ECJ. If so, then it would have to be used against Hungary and some other Eastern European countries as well. This in turn could lead to solidarity among the states concerned. Because Poland and Hungary support each other, the ongoing so-called Article 7 proceedings against Poland and Hungary – they can end with the withdrawal of voting rights – seem hopeless.
The Commission may start new infringement proceedings. At the moment, however, it seems most likely that it will continue to block the funds from the Corona Reconstruction Fund (RRF). The payment is linked to “milestones”, in the case of Poland to the restoration of the rule of law. For Poland, a total of at least 36 billion euros are at stake.