Why the EU’s rule of law mechanism won’t resolve its democratic crisis
It is crucial for the European Commission to resolutely defend the rule of law. If it settles for a rotten compromise with Warsaw, there will be a risk of legal chaos in the EU.
It was an important, even historic, judgement. On 16 February, for the first time, the Court of Justice of the European Union (CJEU) ruled that the union has its own constitutional identity and that the rule of law, especially the independence of judges, is an integral part of this. This is true also for Poland, where the nationalist Law and Justice party (PiS) government has taken control of the judiciary. If the independence of a country’s judicial system continues to come under attack, this will threaten the EU’s entire legal system. If there is nothing to prevent politicians in EU countries from pressuring judges into certain decisions, trust-based cooperation between the union and its member states will break down.
Therefore, in such cases, the EU needs a mechanism to cut its budget funds to the country in question. The CJEU has finally confirmed that such a mechanism conforms to the EU treaty. Is this a breakthrough in the dispute over the defence of EU principles, in which Polish and Hungarian populists have so far fooled the EU? Not at all.
To draw this conclusion would be analytically inaccurate and politically unwise. Those who, like many members of the European Parliament, have too high hopes for the new mechanism are indulging in wishful thinking. The EU can only use the new instrument if it proves that the violations concerned lead to the misuse of its budget. In the case of institutionally corrupt countries such as Hungary, this approach can succeed. In contrast, where democratic principles are trampled but EU money is still correctly administered – as in Poland – this is much more difficult. And the procedure takes at least six months before there is a decision by EU member states. They will have to vote on whether to take the money from a partner country. So, the process can turn out to be an empty threat.
Therefore, the fate of the European Commission’s effort to defend EU principles will not be determined by the application of the rule of law mechanism. The true battle will take place in a different theatre and be fought using other weapons.
Since 15 July 2021, the Polish government has refused to implement an important ruling by the CJEU. The ruling requires the complete reform of the judicial disciplinary system, which has for several years allowed the Polish government to persecute and intimidate judges for political reasons. This is the central issue in the EU’s dispute with Poland over its legal status. Warsaw does not want to be subordinate to EU law. The Polish Constitutional Court, which is controlled by the government, ruled in October 2021 that CJEU rulings on the judiciary can be ignored. This is tantamount to a declaration of war against the highest EU court. The Commission has rightly prevented Poland from receiving money from NextGenerationEU, the union’s coronavirus recovery fund, until the government in Warsaw implements this key ruling.
It is crucial for the Commission to stand firm on this issue rather than settle for a rotten compromise with the Polish government. Now, the government is negotiating a compromise with Brussels and trying to use bogus concessions to secure the release of the money. Both the Polish president, who is close to the government, and the PiS have presented draft reforms to this end. None of them come close to abiding by the CJEU ruling.
Most notably, under the current system, judges are punished for referring to the EU law and standards of judicial independence defined by the CJEU. Under the draft reforms, this would continue to be the case. There are a growing number of Polish judges who do not comply with the EU’s legal requirements. And their verdicts are invalidated by the European Court of Human Rights and other courts. This is legal chaos in the making.
This is a cat-and-mouse game in which the PiS government wants to dupe the Commission. It hopes that the war in Ukraine – a geopolitical crisis requiring European unity – and the Commission’s political interest in a compromise with Warsaw will allow it to perform this trick. The dispute with Poland is a constant source of irritation for Brussels. And many fear that the Polish government is trying to block important EU initiatives in retaliation for the Commission’s intransigence on the rule of law. The threat of such a permanent blockade is grossly exaggerated. However, one should not underestimate its political effectiveness.
Should the Commission succumb to the pressure and settle for a sham compromise, the consequences would be catastrophic. How could it credibly defend European standards on the rule of law after disregarding the jurisdiction of the highest European court, thereby rewarding the Polish government’s violations with billions of euros? If the Commission backs down – by accepting anything less than the full implementation of the CJEU judgement of 15 July 2021 as a precondition for the release of the EU funds – it will lose a key battle over the rule of law in the EU. And the Commission has never been so close to success in this battle as it is today.
Anyone who cares about the future of the EU should insist that the Commission stand firm at this decisive moment in its dispute with the Polish populists. Far too often, the Commission has lacked the courage and steadfastness to defend the rule of law. Yet much more is now at stake for the EU than in the eventual application of the rule of law mechanism, which could easily turn out to be a paper tiger.
The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of their individual authors.