Poland strikes back in the Rule of Law “chess match”

In the middle of the recovery from the Covid-19 pandemic, the rule of law debate rises again and threatens the core of the European Union. Before the crisis, the governments of Hungary and Poland had performed legal changes reinforcing the powers of the executive and undermining the independence of the judiciary. Progressively, the challenges to the EU’s authority have become more serious. Now Poland’s Constitutional Court has recognised EU law as being subordinated to the Polish constitution, which openly defies the primacy of EU provisions declared by the European Court of Justice. So far, the EU’s attempts to tackle the problem have been unsuccessful. The debate is now causing internal tensions and inter-institutional clashes leading to unprecedent situations: on the 14^th of October, MEPs voted to take the Commission to the ECJ for failure to implement the conditionality tool. The institutions’ actions in the following weeks will be key in shaping the democratic future of the European Union.

Integration through case law

The process of European integration has been shaped through the adoption of legal instruments and case law. These dynamics have resulted in a political model in which the European Court of Justice is a central organ. Two fundamental decisions of the ECJ particularly consolidated the EU legal order: the cases Van Gen den Loos in 1963 and Costa v ENEL in 1964. Through these rulings, the direct effect of EU law and its primacy over national norms were confirmed.

On its Costa v ENEL judgement, the Court unequivocally stated the higher legal status of EU law over national law, including the Member States’ constitutions. The rationale behind this was that primacy was needed to ensure the uniform application of Union law across the Member States. If the national Courts were given the power of interpretation, that would result in divergent national conclusions blocking the correct functioning of EU provisions.

A contested primacy

While the Member States have generally accepted this principle, some national Courts have expressed their reservations and even put them in practice in their jurisprudence. The most influential one has been the German Federal Constitutional Court, which has even developed exceptions to the primacy of EU law, most of them related to the respect of fundamental rights and guarantees listed in the German Constitution. Nevertheless, open defiance to the rulings of the ECJ has been rare.

One of the most recent examples can be seen in the May 2020 ruling of the German Constitutional Court, which claimed that the European Central Bank had overstepped its mandate by purchasing bonds during the European debt crisis. This situation led to the launch of an infringement procedure against Germany by the European Commission, accusing the country of violating the primacy of EU law. Considering the German ruling as a dangerous precedent, the Commission made a move to deter other countries – Poland and Hungary – from following its example by questioning the authority of the ECJ.

Poland’s open battle with the European Court of Justice

Nevertheless, the Commission’s action has not stopped Poland from following the German trend in a far more worrying manner. The country had already been found by the ECJ to have violated EU law on several occasions, notably by lowering the retirement age for judges in 2017 and 2019. In response to that the Polish prime minister, Mateusz Morawiecki, requested the Constitutional Court to analyze whether the EU could interfere in the government’s judicial reforms. Following that request, the tribunal is now openly confronting the ECJ by declaring three articles of the Treaty on the Functioning of the European Union as incompatible with the Polish Constitution.

As for the EU’s response to these developments, numerous Commissioners have affirmed the need for immediate action against Poland. Věra Jourová affirmed that if the EU doesn’t react now, “the whole Europe will start collapsing”. The Commission is currently withholding the approval of the Polish and Hungarian recovery plans over concerns of their progressive democratic backsliding. Countries like the Netherlands have already called on the institution not to approve these two national plans.

A failed conditionality

Almost a year ago, in the context of the negotiations of the seven-year EU budget, the European Parliament and the Council of the EU agreed to link economic conditionality to the protection of core values of the European Union. The aim was to enable the EU to stop funding Member States’ governments that threaten the fundamental values listed in Article 2 of the Treaty on the European Union. Poland would be particularly affected by this conditionality, since it is currently one of the largest beneficiaries of EU funds.

Even if the European Council – which is not a legislative institution of the EU – tried to delay the application of the mechanism in its December 2020 Conclusions, the conditionality tool was finally adopted and entered into force on the 1^st of January 2021. However, the Commission hasn’t used it for the time being. Since then, MEPs have been calling for urgent action from the Commission in this regard, pointing out that the situation in some Member States needs to be reverted immediately.

Inter-institutional relations at stake

After ten months of delay, the European Parliament has voted to take the Commission to the ECJ for failure to act under Article 265 TFEU. On the 14^th of October, the Committee of Legal Affairs formally filed the request for action against the Commission in a very rare inter-institutional dynamic. The next step is for the EP President to instruct the Parliament’s legal service to take the complaint to court. In the Committee’s vice chair Sergey Lagodinsky’s words, the Commission “is the guardian of the treaties and as such accountable to the Parliament”. The legislative chamber is thus stepping up as a major defendant of democracy and the rule of law in the EU.

What’s next?

Even if negotiations on the conditionality mechanism have been paralyzed at the interinstitutional level since December 2020, political and judicial developments leading to further democratic backsliding in Poland and Hungary are still happening every day. The current challenge to the primacy of EU law has been one of Poland’s most provocative moves to date.

The European institutions are at a deadlock, and it seems like reacting urgently is the only choice. For now, Prime Minister Morawiecki is due to appear before the MEPs at a plenary session to discuss the rule of law and the latest events in Poland. The Commission’s president, Ursula von der Leyen, will also go to Strasbourg for the event, where she will most likely be pressured to activate the conditionality mechanism.

The rule of law debate is progressively turning into a series of inter-institutional battles between the Parliament, the Commission and the European Council, institution in which Poland and Hungary still have a say. For now, there are no visible outcomes of the EU’s action in the non-compliant countries, which are now even more openly challenging the Union. Tensions have escalated in the past two weeks, and dialogue no longer seems like a viable approach to the problem. This situation causes uncertainty in the post-pandemic scenario and rises concerns about the future of the European Union.