Poland – The European Commission has given Poland until 16 August to suspend its Supreme Court’s new Disciplinary Chamber, failing which it will again refer the matter to the ECJ to apply a daily fine. The financial penalty will increase with each day of non-implementation of the precautionary measures adopted by the ECJ, which have been found by the Polish Constitutional Court to be contrary to the national constitution, as they were ordered in an area – the organisation and functioning of the judiciary – where Poland has never ceded its sovereignty to the EU. But if Poland refuses to pay, the money will be withheld from the budget and recovery plan funds allocated to it.
The European Commission Vice President for Values and Transparency, Věra Jourová, said at a press conference on Tuesday 20 July:
“The European Commission decided today to empower Commissioner Reynders, as commissioner for justice, to adopt measures to induce the Republic of Poland to comply with an order and a judgement of the Court of Justice. We have sent a letter on this matter. We have asked Poland to confirm to the Commission that it will fully comply with the order of the court of 14 July on the disciplinary chamber. Poland needs to inform us about the measures foreseen to that effect by 16 August as requested by the Court. Failing that, the Commission will request the European Court of Justice to impose a penalty payment on Poland. ”
The Polish government responded by pointing out that many much older ECJ rulings have still not been implemented by various countries, without this type of threat being delivered by the European Commission. Moreover, as MP Radosław Fogiel, one of PiS’ spokesmen, repeated on 20 July after government statements made along the same lines: “No one has ever transferred competences concerning the judicial system to the international institution which is the European Union.”
For the Poles, the European Commission’s double standards are also all too obvious in the light of the full year it took it to merely initiate proceedings against Germany after the Constitutional Court in Karlsruhe questioned the ability of the ECJ to validate European Central Bank operations that did not comply with the European treaties on sovereign debt purchases. Nor was there an ultimatum when, on 8 June, the Constitutional Court in Bucharest prohibited Romanian courts from applying an ECJ ruling that fell outside the scope of the powers transferred to the EU.
Hungary is obviously the other victim of this double standard of the European Commission, which is now demanding a reform of the Hungarian judiciary before it can approve the Recovery Plan submitted by Budapest and subsequently release the corresponding EU funds. It should also be remembered that, at the same time, the Commission has announced its intention to force, by devious means (namely by invoking various directives that are not directly related to the object of its attack), Poland and Hungary to align their policies with the liberal-progressive ideology that is now predominant in Western Europe, particularly with regard to “LGBT rights”.
In these circumstances, it will be interesting to see how the European Commission reacts if France refuses to implement the ECJ ruling of 15 July on the working time of military personnel. By extending the application of the 2003 EU Working Time Directive to the military, the ECJ is in effect encroaching on a very sensitive area of exclusive competence of EU Member States: defence. Initial French reactions suggest that the validity of this ECJ ruling could be challenged by Paris, in the same way that Warsaw has been challenging the validity of European judges’ rulings on its judicial system.
“The Minister of the Armed Forces Florence Parly strongly protests against this decision of the European Court of Justice”, the spokesman for the Ministry of the Armed Forces told Le Figaro. “Florence Parly has had the opportunity on several occasions to remind Parliament that her determination was complete to preserve a powerful French army within a strong Europe. We will respond to the law with the law.”
This sounds much like Poland’s position with regard to its judiciary, since this statement augurs a referral to the Council of State (France’s supreme administrative court) and the Constitutional Council in order to have them reject the ruling of the ECJ concerning the working time of military personnel. This is also what Jean-Louis Borloo, a former top member of François Fillon’s governments under the presidency of Nicolas Sarkozy, called for in Le Figaro, when he argued:
“In issuing this ruling, the ECJ disregarded France’s national sovereignty concerning its security and the defence of its essential interests. In stating that the Working Time Directive applies to the armed forces, the cornerstone of national sovereignty, the Court makes an incredible and intolerable mistake. It is arrogating to itself a power that it does not hold. By its decision, it is calling into question the constitutional principle which gives the French Head of State ‘the free disposal of the armed forces’, so that he can ensure the independence of our country. It would be irresponsible for the French public authorities to allow the European ruling to be imposed on them on such a subject. ”
It is almost as if one were listening to Poland’s political leaders or members of their parliamentary majority talking about the interference of the ECJ in the organisation and functioning of the judiciary in their country, especially when Borloo goes on to say:
“It is therefore of the utmost importance that the President of the Republic and the government refuse to submit to the ECJ’s decision. The battle is a legal one – the Constitutional Council and the Council of State must fight it. It is even more a political one, and it is up to France’s leaders to lead it. There can be no abdication in this matter. The non-negotiable sovereignty of France and the best interests of the European Union are at stake. ”
Édouard Philippe, Emmanuel Macron’s previous prime minister, said something similar in Le Monde:
“I am fiercely pro-European. Everything in my political commitment and my intellectual lineage confirm my attachment to European integration. But this decision of the highest European court is in its principle contrary to the most elementary national interests. It goes to the heart of France’s sovereignty and security. It is not acceptable. ”
But it is true that France, as a net contributor to the European budget, is better placed than Poland to resist threats to withhold funds from Brussels. As far as Poland is concerned, in view of Prime Minister Mateusz Morawiecki’s retreat at the December European Council on the essential issue of the “rule of law mechanism”, it is highly likely that Jarosław Kaczyński’s party will decide to urgently amend their own reform of the Supreme Court so as to respond to the ruling delivered by the ECJ on 15 July and make its earlier preliminary measures void. On 15 July the ECJ, on the issue of the Polish Supreme Court’s reform which had been referred to it by the European Commission, ruled that the new Disciplinary Chamber was incompatible with European law as, according to the ECJ, it allows the executive and legislative branches of power to exert an undue influence on judges. But since this is not the only criticism levelled at Poland by the European Commission, it is just as likely that the conflict over the judicial reforms carried out in Poland will continue to spoil the mood in Brussels alongside ideologically charged societal issues. The European Union will not emerge from this artificially created crisis stronger.
And as an editorial in the pro-Brexit British newspaper The Telegraph noted on 20 July about the ruling on military personnel’s working time, “France is finally realising the cost of the EU dogma of ever closer union”, and “it is possible the ECJ has bitten off more than it can chew this time.”
It will, nonetheless, be interesting to see whether the Commission gives France the same ultimatum as it gave Poland.