The dispute between Poland and the European Commission (EC) and the European Court of Justice (ECJ) is about whether the member states or the European Union’s (EU) institutions have general power of competence. The judicial reform introduced in Poland could be the worst or best in the world, or somewhere in between, but that is not the issue. The issue is to what extent EU institutions have the right to intervene over it.
And here the answer lies in the treaties. The rule of law is one of the values of the EU listed in Article 2 of the Lisbon Treaty. The only mechanism envisaged for adjudicating whether a member state is in violation of Article 2 is described in Article 7, under which the EC may suggest to the European Council that sanctions be introduced, or a suspension made, but it is only the members of the European Council on the basis of unanimity who can actually impose those sanctions or enforce a suspension. The Treaties do not make judicial systems the competence of the EU. The EU is still a member-based organization in which it is the members and not the institutions of the community that hold general powers of competence. The competences of EU institutions are defined in EU treaties that only the member states may change.
The ruling by the Polish constitutional court is the only one it could reach. The competences of the EU are defined in the Treaties, and the EU law and judiciary may only have jurisdiction when it stays within those Treaties.
Michał Broniatowski, in a recent Politico Europe article, introduces a red herring in the shape of Article 91 of the Polish constitution. That article states that when Poland secedes powers in an international treaty then that secession supersedes the constitution. Indeed. That is why Poland fully accepts the jurisdiction of the EU in matters relating to agriculture, fisheries, the single market etc. and has seceded sovereignty in those areas by signing its EU accession treaty. But that cannot mean that if Poland joins an international body and then that body exceeds its powers Poland is bound by its decisions.
Poland along with other member states is concerned about the way the EC, the European Parliament and the ECJ are pushing the boat out to increase their competences outside of the treaties. Claims that Article 2 entitles the EU to force member states to change their judicial systems and family law are certainly in that category.
Equally concerning is the recent practice of the ECJ of instigating injunctions that pre-empt verdicts. The case of the Turow coal mine is a good demonstration of this. The Czechs brought an action to the ECJ to force Poland to close that mine. They had the right to do so and certainly the ECJ had the right to adjudicate. What the ECJ did not have the right to do is to pre-empt the case by telling Poland to shut down the mine before it actually makes a ruling. That was like beginning court proceedings over a murder case by the judge ordering the execution of the suspect so that he does not escape jail. Poland rightly refused to do that and was treated to the judge from the ECJ ordering it to be fined.
If the EC and ECJ are to have general power of competence, then the EU becomes not about the pooling of sovereignty but removal of sovereignty of the member states. It would mean that the governments of member states are no longer sovereign in all areas of policy rather than just those that are actually the subject of EU treaties.
Poland to lose EU funds? That would be the next step in European institutions stepping outside of their powers. Those funds can only legally be stopped on the basis of an Article 7 action or by forcing their return if it can be proved that they have been misspent. The latter in the case of Poland is unlikely as Poland has actually been far more diligent on staying within EU procedures than have many other EU member states.
What is extraordinary is the attempt by the EC to link the funds not only to rule of law concerns, which it has no power derived from the Treaties to do, but also to member states realizing climate goals and other goals set for them. That is a backdoor attempt to force Poland’s hand on issues such as its coal industry at a time when problems with the energy mix are creating havoc on energy markets.
And on energy, as on migration, Poland has been proved right. The EC now grudgingly supports Poland on its border with Belarus. It would also gladly stop Nord Stream 2 if only Germany would let it. Poland had for years warned about Russian gas blackmail, the type to which western Europe is now being subjected. Russia has weaponized gas and migration just as China has weaponized trade and debt. The EU geopolitically is nowhere, as the recent AUKUS story showed.
Given the EU’s strategic weakness it is understandable that central EU institutions such as the EC, EP, and ECJ want more power over the member states that cannot agree on security, energy, foreign policy, further enlargement, and much else. But that cannot be done by them exceeding their powers as that simply generates more internal problems without solving any of the existing ones.
The EC along with some member states will of course be tempted to attempt to do to Poland and Hungary what was done to Greece and Italy whose governments have in the past been either brought down or to heel. But neither Poland nor Hungary is in the kind of economic turmoil that both Italy and Greece got themselves into. Bringing down either Kaczynski or Orban will be much harder than bringing down Berlusconi, the Five Star mavericks, or bringing the trendy neo-Marxist Tsipras to heel. Given the geopolitical situation, having Poland and Hungary going rogue would be a huge mistake.
Some will argue that they have gone rogue anyway. Those who think single sex marriage, abortion, and the rights of former communists to preside over the judiciary are the most important things in Europe and the world will certainly agree. But those who believe that containing illegal migration, defending the eastern flank of NATO and the EU, maintaining a strategic alliance with the USA, and keeping fiscal rectitude (here central Europe compares most favourably with the fiscally incontinent southern Europe) will take a different view and should begin to speak up. Poland especially is actually a country that has been highly constructive on energy security, containing migration, delivering fiscally responsible development, and working well with the USA.
I do not for a moment buy the argument put out by some of the right in Poland that the EU wants to stop Poland developing. That would be madness and cutting off the EU’s nose to spite its face. The west of Europe has benefitted hugely from Polish and central European membership of the EU. It has benefitted from millions of highly educated and diligent workers who have come onto its labour markets, open access to increasingly lucrative central European markets, and vastly increased volume of trade. Both central Europe and western Europe have benefitted hugely from EU enlargement. It is very much in the interests of western Europe to see central Europe continue its development. That would be put at risk should the dispute between Poland and Hungary and the European institutions escalate and get out of control.
For instance, should there be serious political and civil unrest in Poland stirred up by the false narrative of ‘Polexit,’ that could in the present circumstances embolden both Lukashenka and Putin to escalate aggression on the EU’s and NATO’s eastern flank. Central Europe came within the orbit of the west very suddenly at the end of the 1980s. We should not risk it disappearing from under Western influence just as quickly.