Polish Prime Minister Mateusz Morawiecki will detail his country’s position on respect for the Rule of law in the Member States and particularly the primacy of EU law over national law, on Thursday 21 October, at the first working session of the EU summit, after having done so in person on Wednesday at the European Parliament (see EUROPE 12815/3).
“We will also touch upon recent developments related to the Rule of law during our working session”, European Council President Charles Michel said soberly in his letter of invitation to EU leaders on Wednesday 20 October. He did not really take a position after the Polish Constitutional Tribunal’s ruling challenging the primacy of European law (see EUROPE 12807/1, 12808/1). In his entourage, it is said that it is not up to the Belgian Liberal to pass judgement on this matter, as this is the role of the European Commission as guardian of the treaties.
“The fact that this is being discussed (at the Summit, editor’s note) shows the importance of the subject. There is no denial on the issue”, commented a European source.
The Commission is refining its own analysis of the Polish Constitutional Tribunal ruling and its President, Ursula von der Leyen, has outlined three possible options for responding to this challenge of the EU’s legal order: - the opening of an infringement proceeding; - the triggering of the Regulation making the mobilisation of the EU budget conditional on respect for the Rule of law; - the continuation of the so-called ‘Article 7’ procedure of the European Treaty on the respect of fundamental European values.
Nevertheless, even if it might be shorter than the June discussion on Hungary’s law stigmatising the LGBTI community (see EUROPE 12748/1), “the discussion is impossible not to take place”, according to a senior diplomat, as the Polish Constitutional Tribunal ruling marks a further step in the dispute between Warsaw and the EU level on the cross-cutting issue of the Rule of law. “In Europe, it must be automatic that everybody follows verdicts by courts, especially those of the Court of Justice of the EU. This is how we have built the EU since 1958”, said the diplomat.
Another diplomat said Mr Morawiecki was “very sure of himself, but it is important that he hears the reaction of the Member States and why his position is not tenable”. “If the Polish government thought that it would be able to carry out its reform (of the justice system, editor’s note) and that we would remain good friends, it’s no!”, added a European diplomatic source, without however expecting “a change of heart” from the Polish side.
On Thursday, several leaders will therefore defend a fundamental pillar of European construction. Dutch Prime Minister Mark Rutte will also argue that the Polish recovery plan should not be validated under the current situation.
According to the German Chancellor, Angela Merkel, for whom this should be her last EU summit, the issue cannot be resolved solely in the Court of Justice of the EU and requires political dialogue.
“It is this political dialogue that will take place at this European Council”, according to a fourth diplomatic source from a member country. The source added: “I don’t expect the discussion at the European Council to be ‘I want sanctions. I don't want sanctions’. (...) So it is not a question of asking ‘Did the Constitutional Tribunal get it right?’, but rather of asking the fundamental question of the relationship between the EU and the sovereignty of Member States”.
As for the examples taken from rulings in other Member States that Mr Morawiecki put forward, they are “undoubtedly correct, taken one by one, but incomparable to what is happening in Poland”, the European diplomat said. “The question is: Do we agree that we need to work with independent judiciaries?”.
European Parliament steps up pressure on the Commission
On Wednesday, the European Parliament took a further step towards referring the Commission to the Court of Justice for its reluctance to trigger the Rule of Law Conditionality Regulation.
Its President, David Sassoli, has asked the European Parliament’s legal services to prepare a legal action for “non-application” of the Regulation allowing the suspension of EU budget payments to Member States where the Rule of law is under threat. “A majority of political group leaders supported this action at the meeting of the Conference of Presidents” of the political groups (CoP), a statement said.
Mr Sassoli’s letter to the Parliament’s legal services follows a recommendation to this effect by the European Parliament’s Committee on Legal Affairs (see EUROPE 12813/4). It makes it clear that the Parliament will stop the legal proceedings if the Commission takes an initiative.
“The European Union is a community built on the principles of democracy and the Rule of law. If they are under threat in a Member State, the EU must act to protect them”, Mr Sassoli said.
On Tuesday, the Benelux countries also asked the Commission to go as far as possible in applying the Regulation (see EUROPE 12815/1), while respecting the December 2020 European Council agreement that formal proceedings will not be initiated until the Court of Justice of the EU has ruled on the annulment action filed by Hungary and Poland (see EUROPE 12620/1).
According to the Netherlands, the Commission could already make public draft guidelines on the application of the Rule of Law Conditionality Regulation and say orally in which countries problems exist and could be subject to the triggering of this mechanism.
Link to the European Parliament President’s letter: https://bit.ly/3aRTmXD (Original version in French by Mathieu Bion and Lionel Changeur)