EU leaders offer no way out of Polish rule of law crisis

European Council President Charles Michel , Germany's Chancellor Angela Merkel and French President Emmanuel Macron, during a family picture, being supposed to be Angela Merkel's last, during an EU summit in Brussels, Belgium, 21 October 2021. EU leaders meet in Brussels on 21 and 22 October, to discuss COVID-19, digital transformation, energy prices, migration, trade and external relations. [EPA-EFE/OLIVIER HOSLET]

EU leaders failed to offer a way forward on Poland’s challenge on European legal order in a “serene” discussion that barely lasted two hours on Thursday (21 October), a relatively short meeting by EU summit standards.

Following the meeting of bloc leaders when asked what has been achieved in discussions with the Poles, Belgian prime minister Alexander De Croo said: “to put it bluntly, not much”.

The Polish Constitutional Tribunal, considered illegitimate by its critics, ruled earlier this month that certain provisions of EU treaties are incompatible with the Polish constitution.

It also said the Polish Constitution stood above European rules in areas defined by the Tribunal, going against the legal principle of primacy of EU law.

The lack of results only highlighted the growing schism between EU countries. Hungary supported Poland in its view that national law ultimately stands above European rules.

“There is a witch-hunt in Europe against Poland. The truth is on the side of the Poles,” Hungarian Prime Minister Viktor Orbán said upon arriving in the Europa building.

“There is a creeping expansion of powers that is going on here that must finally be stopped, and the Poles have taken the courage to open this battle. Our place is there with them”, he added.

Meanwhile, big European players like Germany, France and Italy were pushing for dialogue during the discussions, EURACTIV has learned.

“The rule of law is a core pillar of the European Union. On the other hand, we have to find ways and possibilities to come together on this – because a cascade of legal disputes before the European Court of Justice does not solve the problem of how to actually practice rule of law,” the outgoing German Chancellor Angela Merkel said as she arrived at the meeting.

In her view, the underlying question is how EU countries envisage the Union. “Is it as an ever closer union, or do they envisage more of the nation state? And this is certainly not just an issue between Poland and the European Union; it is also being discussed in other Member States,” she said.

Merkel added that the Conference on the Future of Europe, seen by many as a politically moribund exercise, “is actually a good place to discuss, amongst others, such questions.”

Asked by EURACTIV if Ireland agreed with Merkel’s assessment, Dublin’s Minister of State for European Affairs Thomas Byrne said “she makes a very fair point that it is a good place to discuss” because “that is a problem if we have different views about where the European Union is going”.

European Parliament expects action

As EU leaders failed to provide a united vision on how to tackle the rule of law crisis, European lawmakers in Strasbourg have come out strongly on the Polish situation.

In a resolution that found the support of an overwhelming majority, MEPs “deeply deplored” the decision of the Polish Constitutional Tribunal on Thursday (21 October).

The European Parliament said the Tribunal was transformed “into a tool for legalising the illegal activities of the authorities” and called on other EU institutions to act, demanding that no EU taxpayers’ money go to those who “flagrantly, purposefully and systematically” undermine European values.

Little political guidance for the Commission

Meanwhile, the European Commission has been given few political signals on how to act on the complex situation.

In a speech given in front of the MEPs on Tuesday (19 October), European Commission President Ursula von der Leyen said the ruling by the Polish Constitutional Tribunal called “into question the foundations of the European Union” and was “a direct challenge to the unity of the European legal order”.

She added that the Commission was considering three main courses of action: suing Warsaw before the EU Court of Justice (CJEU), the same court at the centre of the legal battle with the Polish Constitutional Tribunal.

Alternatively, the Guardian of the European Treaties could trigger the mechanism tying the disbursement of EU funds to the rule of law.

However, the Commission has been hesitant to do so and is currently on the brink of being sued by European Parliament for its sluggishness.

European Parliament lawyers up for rule of law battle with the Commission

Following a long will-they-won’t-they saga, European Parliament President David Sassoli announced on Wednesday (20 October) his institution will sue the European Commission if it fails to trigger the regulation linking EU funds to rule of law before 2 November.

Finally, Von der Leyen could initiate the Article 7 procedure, whereby other member states could strip Warsaw of voting rights.

Nevertheless, the highly political process is unlikely to advance in the near future, especially since the Commission already triggered Article 7 against Poland in 2018. Still, the procedure, which would require unanimity of all EU countries at the last stage, has been stuck in the Council ever since.

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