On September 7, the European Commission asked the Court of Justice of the European Union (CJEU) to impose daily financial penalties on Poland to ensure that the country will comply with a CJEU order to suspend the work of the controversial Disciplinary Chamber of the Polish Supreme Court. The Disciplinary Chamber can revise disciplinary decisions taken against judges, and further allows for judges to undergo disciplinary proceedings concerning the content of their decisions. The Chamber is composed of a number of judges selected by the National Council, whose members are designated by the Polish parliament. The fear in Brussels (shared also by the European Court of Human Rights) is that the body will be filled with government loyalists, which may compromise its judicial independence. On the other hand, according to Polish ministers, the body is part of a larger judicial reform needed to stamp out the remaining ‘Communist-era’ judges.
The European Commission argues that Poland has not complied with the CJEU’s July decision which ordered the immediate suspension of the Disciplinary Chambers on the grounds that it lacks independence and impartiality. The Polish government announced on August 16 that the disciplinary body would have been dissolved as part of a further reform in the coming months, but asked the CJEU to waive its order. In the meantime, the chamber continued its activities, at least partially.
This dispute could be viewed as the climax of an ongoing rule of law spat between the Polish government and the European Commission which started back in 2015 when the nationalist Law and Justice (PiS) party took power in Warsaw. Since then, there have been disputes regarding anti-LGBT charters, media and judicial independence and abortion rights, raising concerns of democratic backsliding in the former communist country.
The European Commission’s decision to request financial penalties for Poland is a confirmation of a recent trend by the Commission to put more pressure on Poland to comply with EU legislation and values. After years of trying to get Poland to fall in line through legal manoeuvring such as infringement procedures and the Article 7 process (the ‘nuclear’ option, which has little to no possibility of being approved), the Commission is now resorting to financial pressure. Last year, the Commission denied extra-funds for six Polish municipalities in a program for twin towns against the backdrop of their decision to sign alleged anti-LGBT declarations. Moreover, the Commission warned five Polish regions that have adopted similar declarations that they are at risk of losing as much as €2.5 billion in EU structural funds if they do not retract these measures.
In an even bolder move this summer, the Commission stalled the approval of the country’s €57 billion recovery plan, alledgedly due to the resolution of an explosive motion filed by Poland’s Prime Minister Mateusz Morawiecki to the country’s Constitutional Tribunal questioning the supremacy of EU law over Polish law. The filing of this motion has been favoured by the German Constitutional Court, whose landmark decision in May 2020 to refuse a CJEU decision regarding the legality of a bond purchase program led by the European Central Bank opened the doors for other EU member states to ignore CJEU decisions. The result of the filings has the potential to irreversibly damage the relationship between Brussels and Warsaw, with growing fears of a Polish exit from the EU legal system.
In addition, it is likely that within the next few months the European Commission will have a new instrument to put financial pressures on countries judged not to be abiding with EU law. Indeed, as part of the 2020 deal that led to the creation of the Next Generation EU recovery package, EU leaders agreed to set up a scheme that would allow the Commission to interrupt payments to countries deemed not to be meeting certain rule of law criteria linked to the EU budget. However, as part of the agreement Hungary and Poland maintained the right to challenge the mechanism at the CJEU before the tool could be implemented.
For the PiS-led government, the increase in pressure from the Commission arrives in a troubling period. Domestically, the government has been left without a majority in Parliament after Morawiecki sacked the Deputy Prime Minister and the leader of the smaller Accord party over policy disagreements, increasing the risk of a snap election. Moreover, the opposition is gaining ground in the polls, bolstered by the return of Donald Tusk, the former President of the European Council, and the former Polish Prime Minister, who heads the main opposition party Civic Platform. On the external front, the government is under pressure to stem the flow of immigrants coming from Belarus, which is a reaction to efforts by Belarusian leader Alexander Lukashenko to fly people from the Middle East to European countries in order to put pressure on the EU. Furthermore, the US, which is Poland’s most important security partner, is protesting a media law that it considers to be unfairly targeting a US media outlet often critical of the government.
For the Commission, the use of financial and budgetary means to apply pressure to countries that do not comply with EU law could signal the beginning of a more confrontational phase in dealing with affairs concerned with the rule of law at EU level, as shown also by the stalemate in approving Hungary’s recovery plan over shortcomings in combating corruption. Therefore, if the rule of law mechanism linked to the budget will indeed be approved by the court, rule of law disputes could be expanded further into the financial realm. In addition, this will be a warning for other countries where rule of law issues are emerging, such as concerns regarding media freedom in Slovenia, and corruption scandals in Bulgaria.
More fundamentally, though, the Commission’s moves are emblematic of a more authoritative EU executive that is becoming increasingly coercive in its efforts to keep member states in line and avoid a loosening of the core values of the European project, which it sees as fundamental for the bloc to continue the process of integration and expand its influence. Yet, a tougher approach from the Commission could also elicit opposition in the European Council by the targeted member states, thereby making unanimous decisions all but impossible. This would risk stalling a deepening of integration in policy areas where unanimity is required, such as common foreign and security policy (CFSP) and further enlargement. This in turn could further hamper the EU's already strained ability to act coherently on the world stage.