Renata Uitz (Central European University)
On October 27, 2021 the Vice-president of the Court of Justice (CJEU) imposed a periodic penalty of 1M EUR per day on Poland for failing to suspend the application of various legal provisions regarding the Supreme Court’s Disciplinary Chamber [C-204/21 R], as required by an earlier interim order in the same infringement case [C-204/21 R]. In particular, the vice-president emphasized that
“a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under EU law [and] that the obligation of the Member States to comply with EU law is binding on all their authorities, including, for matters within their jurisdiction, the courts” (para. 54).
This order follows another, 0.5M EUR daily penalty imposed on the Polish government on September 20, 2021 by the Vice-president of the CJEU for failure to conduct environmental impact assessment before extending the license of a coal mine in Túrow, near the Czech border (C-121/21 R).
Just days before this largest-ever daily penalty was handed down, Polish PM Morawiecki accused the Commission of starting a ‘third world war’ with the conditions it set for accessing recovery funds (57 billion EUR), a statement that was later explained as a mere hyperbole. The periodic penalties suggest that the CJEU is ready to push back against Polish reticence towards the primacy of EU law (and ultimately, towards the Court). For its part, the Commission rushed to de-escalate the situation. On October 28, 2021 President von der Leyen offered to unlock 36 billion EUR of recovery funding in exchange for Polish compliance on ‘long standing country-specific recommendation for Poland that is the independence of the judiciary.’
Since the imposition of the new penalty, PM Morawiecki told the European press that Poland is a loyal member of the Union: he spoke to an Italian paper about how “respect for the laws of the community does not mean that they are superior to national constitutions” and wrote in an editorial in El Mundo in Spain that the Union should stop dealing with imaginary problems, and focus on economic restructuring instead. At the same time, Poland continues to adopt controversial legal measures that challenge the Union as a ‘community of values and of laws.’
As a matter of law, sovereigntist aspirations advocated by the Polish government and its allies are hardly compatible with the primacy of EU. As a matter of practice, it is widely understood both in Poland and in EU institutions, that if Poland refuses to pay these penalties, the money will be deducted from payments it is otherwise eligible to receive. As Justice Commissioner Reynders said in an interview with Le Soir, the next potential step is in the Council, where relations between the member states are complicated. Judging by the agenda of the Polish Parliament in the immediate aftermath of the highest daily penalty ever imposed by the CJEU, Poland plans to take advantage of these complicated relations, while inter-institutional conflicts keep escalating in the background. It appears that as illiberal democratic practices became normalized into an everyday experience, the primacy of EU law gets pulverized at the highest levels of European politics at the pleasure of sovereigntist political actors.
A bitter judicial dialogue on judicial independence
A reminder: on July 14, 2021 a Polish 5-member panel insisted that the interim measures ordered by the CJEU affecting the structure and organization of the Polish judiciary were unconstitutional (P 7/20). On July 15, 2021 in an infringement case the CJEU (C-791/19) found that the Disciplinary Chamber of the Supreme Court violated the requirements of judicial independence and impartiality. Although PM Morawiecki indicated that Poland was willing to abandon the Disciplinary Chamber, on October 7, 2021 — in a long-pending case initiated by PM Morawiecki — the Polish Constitutional Tribunal found certain provisions of the Treaty unconstitutional (K 3/21).
In response, the Commission swiftly reaffirmed the primacy of EU law and the binding force of all CJEU rulings on national authorities, including national courts. On October 19, 2021 the European Parliament (EP) held a debate on the rule of law crisis and the primacy of EU law (in the shadow of an Article 7 TEU process that appears to be rather dormant in the Council). In his speech in the EP PM Morawiecki emphasized that the Constitutional Tribunal’s October ruling is narrow and very specific, affecting particular provisions of the Treaty in a specific case. Despite the Polish government’s refusal to comply with the interim measures of the CJEU, PM Morawiecki also mentioned that the Polish government will dismantle the Disciplinary Chamber, as the current regulation of judicial responsibility ‘failed to meet expectations’. This echoed the statement of Jarosław Kaczyński, the leader of the Law and Justice Party in the summer of 2021, who added that “[i]t will also be a test of whether the EU has at least the appearance of showing goodwill.”
For its part, the EP emphasized in its ensuing resolution of October 21, 2021 that it “[d]eeply deplores the decision of the illegitimate ‘Constitutional Tribunal’ of 7 October 2021 as an attack on the European community of values and laws as a whole, undermining the primacy of EU law as one of its cornerstone principles in accordance with well-established case-law of the CJEU; expresses deep concern that this decision could set a dangerous precedent; underlines that the illegitimate ‘Constitutional Tribunal’ not only lacks legal validity and independence, but is also unqualified to interpret the Constitution in Poland” (para. 1.) and that “no EU taxpayers’ money should be given to governments that flagrantly, purposefully and systematically undermine values enshrined in Article 2 TEU” (para. 11).
Diffusing tensions in the face of mounting pressure
Considering the extraordinary steps the CJEU took to defend the primacy of EU law in the face of mounting attacks on its authority, the decision of the Commission seeking to de-escalate tensions with Poland the day after the CJEU imposed a massive fine on Poland is rather odd. It may be explained as a good will gesture in the spirit of constructive dialogue, but it makes little sense in the context of democratic backsliding in the Union.
The Polish judiciary reforms — and especially the Disciplinary Chamber — continue to attract widespread condemnation in Europe. In September 2021 in its periodic assessment, the Council of Europe’s Group of States against Corruption (GRECO) emphasized that:
“rather than excluding potential undue influence from the executive powers in the disciplinary procedures applicable to judges from ordinary courts as required by the recommendation, these amendments to the Law on Ordinary Courts of December 2019 increase the potential influence of the executive in such proceedings, leaving judges increasingly vulnerable to political control, having a cumulative chilling effect on the judiciary as whole. As such, these amendments represent a step backwards and exacerbate an already grave situation.” (§ 73).
Note that the Commission itself drew a connection between safeguards against corruption and judicial independence in its talks with Poland and Hungary as a condition of their access to the recovery funds.
On October 28, 2021 the European Network of Councils for the Judiciary (ENCJ) expelled the Polish Council for the Judiciary — one of its founding members — as it “does not safeguard the independence of the Judiciary, it does not to defend the Judiciary, or individual judges, in a manner consistent with its role as guarantor, in the face of any measures which threaten to compromise the core values of independence and autonomy.” This was the first such expulsion for a professional network that seeks to keep its members in check through dialogue.
Also, in response to the Polish Constitutional Tribunal’s October ruling defying the CJEU the Commission took a stand in defense of the primacy of EU law. And although the EP’s starting point on the illegality of the Polish Constitutional Tribunal echoes the earlier legal position of the European Court of Human Rights and of the Commission’s latest rule of law report, the Commission is reluctant to treat it as such: a defiant political statement that goes against the basic premises of EU membership. Rather, despite the EP’s insistence, it refuses to activate the budgetary conditionality mechanism, until the CJEU resolves the challenge Poland and Hungary submitted against it earlier this year. And — as if to soften the blow of the CJEU’s order of periodic penalties — the Commission is willing to make concessions to the violator to enable its access to recovery funds.
The Commission’s de-escalation response may be explained with the general logic of seeking financial sanctions under Article 260 TFEU. The Commission perceives financial sanctions predominantly as a means of securing the orderly transposition of directives and ‘ensure that Union legislation is genuinely effective’ (pt. 7), and not as a tool to break obstruction / non-enforcement of the CJEU judgments by recalcitrant governments. This default approach is of course understandable, considering the general lack of ‘good compliance’ with EU policies in the member states (to use Gerda Falkner’s phrase). Yet, falling back on this default approach sounds tone deaf in the context of democratic backsliding within the EU. To the extent conditionality works when it is backed up by credible incentives, the Commission’s last minute de-escalation move considerably undermines the CJEU’s efforts to defend the primacy of EU law.
In their comprehensive article on infringement actions to defend the founding values of the Union, Scheppelle, Kochenov and Grabowska-Moroz (2021) point out that if the Commission’s infringement action is tailored too narrowly initially, subsequent attempts to address non-compliance under Article 260 will not be able to address the more general points of principle that a technical infringement case was meant to address (as explained in fiery communications to press and on social media). In the current case of de-escalating the impact of the periodic penalty imposed by the CJEU, the Commission did not simply remove the incentive — it also managed to considerably undermine the CJEU when doing so.
The politics of “us” from “them”
A facial attack on the primacy of EU law is not the only project the Polish government has pursued in recent weeks. Following a familiar pattern and practices from the illiberal playbook, the Polish leadership has ratcheted up its own fight against illiberal immigration and LGBTQI rights, building a supranational alliance with a new, and very different Europe in mind.
Shortly after the CJEU imposed its 1 M EUR a day penalty on Poland, on October 29, 2021 the Polish Senate approved spending 350M EUR on building a wall on the border with Belarus, to halt what Jarosław Kaczyński called Belarus’ — and ultimately Russia’s — “hybrid war against the EU.” The construction project complements the creation of a legal framework that supports push backs — and undermines asylum-seekers access to international protection. The border area has been under a state of emergency since early September 2021, meaning that humanitarian organizations and the press are banned from entering. In the meantime, victims of mass expulsion through “direct coercion measures” turn to the European Court of Human Rights. This is a pattern of practices familiar from Hungary. When the CJEU stood up against push backs, its most consequential judgment (C-808/18) was ultimately ignored by the Hungarian authorities. In protest Frontex suspended its operations in Hungary in late January 2021.
Securing the EU’s borders remains a highly contested topic of European politics on the highest levels. The effectiveness of Frontex is being sharply criticized by human rights defenders, its own management board and the LIBE Working Group on Frontex Scrutiny in the European Parliament, resulting in a recommendation to impose financial sanctions. Although Commission President von der Leyen has said that the EU will not finance “barbed wire and walls,” Poland is committed to proceeding with the construction project. Meanwhile, in early October 2021 several member states requested that the Commission finance a border wall — ultimately supporting a course of action actively pursued by Poland.
Also on October 29, 2021 the lower house of the Polish Parliament (Sejm) started discussing a bill (submitted via popular initiative) that would ban the promotion of homosexuality and LGBT parades. This bill follows the Commission’s infringement action, commenced in July 2021 against the creation of LGBT free zones in Poland. The same infringement package also addresses the recent Hungarian law adopted in June 2021 against the promotion of homosexuality, in the name of protecting children from paedophilia, a measure sharply criticized by the EP as “another intentional and premeditated example of the gradual dismantling of fundamental rights in Hungary.” Indeed, PM Orbán keeps insisting that the Commission’s refusal to release Hungary’s share of the recovery fund is due to the Commission’s disapproval of Hungary’s take on LGBTQI rights — and not the consequence of Hungary’s refusal to put meaningful anti-corruption and judicial independence safeguards in place, as requested by the Commission. As early warnings by various European constitutional actors did not deter the Hungarian government from turning the bill into law, similar measures are unlikely to deter Poland — a champion of the fight against gender ideology and ideological colonisation.
To communicate their refusal to yield to European pressure and defend national sovereignty PM Morawiecki and PM Orbán met recently with Marine Le Pen who is aiming for the French presidency. Le Pen praised Poland’s “beneficent courage” when facing off the EU, “an empire that is built by the submission of nations.” As if continuing a conversation, at the Budapest press conference PM Orbán addressed the unprecedented ideological pressure the EU exerts on Poland and Hungary, calling it “the modernised EU version of the Brezhnev Doctrine.” These meetings followed up on an initiative launched this summer by 16 right-wing parties to build an alliance for a ‘camp of sovereignitists’ in Europe. It was also in this spirit that PM Orbán met in Rome with Giorgia Meloni, the leader of the Fratelli d’Italia party on the side of the annual conference of Catholic legislators in August 2021. At the annual summit on demography in Budapest in September 2021, key speakers insisted that the future of Europe depended on the prosperity of traditional families. This spirit has been nurtured for a while since Poland started to look for support for a convention on the rights of families in 2020, to counter the Istanbul Convention. In a similar vein, in November 2021 the Political Network for Values will hold its fourth Transatlantic Summit in Budapest on building and strengthening a pro-freedom agenda globally.
While PM Morawiecki may be open to compromise with the Commission on the Disciplinary Chamber of the Supreme Court in exchange for the first instalment of the recovery package, Justice Minister Zbigniew Ziobro (the leader of PiS’ junior coalition partner, United Poland ) tends to take a hard, sovereigntist line (to be point of being accused of blackmailing his own government). Against this background it is not impossible that the recovery fund dialogue with the Commission will result in a hard-won deal that will permit dismantling the Disciplinary Chamber of the Supreme Court without removing political control over the judiciary. If and when such a deal is reached in the future, all sides will be eager to claim victory.
If and when it is reached in the future, such a solution will undermine the standing and authority of the CJEU and will open the political hunting season on the primacy of EU law once and for all. The guardians of the Union as a ‘community of values and of law’ may think that this dark scenario can be averted through masterful negotiations. Their sovereigntist challengers however are doing their best to make it happen (and have an impressive track record to this effect). While the founding values of the Union may be ‘fuzzy,’ the primacy of EU law is the foundation of the EU legal order. When it is pulverized through dialogue, it will take the four freedoms with it — challenging the foundations of the economic union.
Renáta Uitz is a Professor of Comparative Constitutional Law at the Central European University.
The views expressed in this blog reflect the position of the author(s) and not necessarily that of the Brexit Institute Blog.