In October 2021, the Court of Justice of the European Union sentenced Poland to an exceptional penalty, namely the payment of a daily fine of €1 million for its refusal to suspend a judicial reform deemed contrary to the rule of law. Brussels accused the reform of undermining the independence of judges. This reform included the creation of a disciplinary chamber within the Polish Supreme Court.
The court explained the fine was “necessary in order to avoid serious and irreparable harm to the legal order of the European Union and to the values on which that Union is founded, in particular that of the rule-of-law.”
The Polish government agreed to give up the Disciplinary Chamber in August 2021, but this was not enough to ease tensions. Warsaw is challenging the authority of the European Court of Justice and the supremacy of European law over Polish law. The Polish government also claims that certain articles of the EU treaties are incompatible with the Polish Constitution. The European Commission therefore considered Poland’s attempts at justification in a December letter to be unsatisfactory and upheld its condemnation and fine. Poland refused to abide by the ruling, arguing that Brussels had no business interfering in national politics. As a result, the amount of money owed has continued to grow.
On January 19th, Poland received a formal payment order from the European Commission for €69 million, with a payment obligation within 45 days.
Relations between Poland and the European institutions have deteriorated considerably in recent months, leading to an increase in legal disputes between the two parties. In May, the European Court of Justice ordered the closure of the Turow lignite mine, near the Czech border, at the request of Prague, because of the serious environmental damage caused to Czech residents. In September, the Court of Justice sentenced Poland to a daily fine of €500,000 for ignoring the order and generating pollutants from the Turow mine. The fine on the judges’ case was added to this litigation. In December, the Commission finally opened an infringement procedure against Warsaw for challenging the supremacy of European law. The Polish recovery plan has still not been approved by Brussels.
Faced with Poland’s repeated refusals to pay, the Commission has obtained the right to deduct the amounts of uncollected fines (plus interest) in installments from the European funds allocated to Poland. The teams of Budget Commissioner Johannes Hahn plan to deduct a first installment of about €15 million from the next payments. The Polish government has not hesitated to describe these procedures as blackmail.
The “Article 7” procedure, which can go as far as suspending a member state’s right to vote in the Council, has been initiated against Warsaw, but it cannot succeed because it requires a unanimous decision—to the exclusion of the country concerned in the vote. Brussels’ efforts are therefore focused on Polish finances. This would be the first time that the European Union has implemented such retaliatory measures. The European Union has a conditionality mechanism, which came into effect in early 2021, that allows it to block the payment of European funds to capitals that do not respect the rule of law. Hungary and Poland challenged the mechanism at the Court in Luxembourg, but their appeal was rejected in December. A new conditionality mechanism should be published in the coming weeks.
Hélène de Lauzun studied at the École Normale Supérieure de Paris. She taught French literature and civilization at Harvard and received a Ph.D. in History from the Sorbonne. She is the author of Histoire de l’Autriche (Perrin, 2021).