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Brussels–Poland conflicts: point of no return crossed on 19 October

Reading Time: 7 minutes

Poland/European Union – After the reactions to the Polish prime minister’s speech in the European Parliament on Tuesday, 19 October, one would be tempted to paraphrase Winston Churchill when alluding to the double retreat made last year by PM Mateusz Morawiecki: at the July 2020 European Council, when he finally accepted the principle of the mechanism making the payment of EU funds conditional on the European Commission’s assessment of compliance with the “rule of law” and “European values”, and then at the December 2020 European Council, when this mechanism was set to become a reality with the 2021–2027 EU budget and with the Next Generation EU recovery plan, and when the Polish prime minister, followed by his Hungarian counterpart, quickly agreed to waive his veto. And he did so in exchange for an interpretative declaration of no legal value signed by the heads of states and governments of the EU-27 on the new conditionality mechanism. Morawiecki was given the choice between war and dishonour. He chose dishonour, and now he has war. “Not everyone is General de Gaulle or Margaret Thatcher”, quipped a French journalist the day after the Polish–Hungarian retreat in December.

For more details about the new conditionality mechanism, see:
“Towards a federal and uniform Europe with the ‘rule of law’ mechanism”

Mateusz Morawiecki and PiS leader Jarosław Kaczyński then explained their backtracking by referring to the importance of EU funds to continue Poland’s economic catch-up and to make up for time lost with lockdown policies during the Covid-19 pandemic. However, Tuesday’s session in the European Parliament confirmed what was already known: the European Commission only intends to release these funds once Poland has undone its justice reforms and revoked the 7 October ruling of its Constitutional Tribunal. Ursula von der Leyen, the President of the European Commission, made this blackmail fully official just before the Polish Prime Minister’s speech, and representatives of all parliamentary groups except the European Conservatives and Reformists (ECR) and Identity & Democracy (I&D) groups demanded that the Commission simply reject the Polish recovery plan. In the background, there are also Brussels’ demands on societal issues, especially on abortion and the demands of the LGBT lobby.

Limits of EU competences respected by minority in European Parliament

Only the latter two groups have challenged the right of the ECJ to extend its jurisdiction to areas that have not been the subject of a transfer of sovereignty under the European treaties, such as the organisation of the judicial system, in which the EU Court has been interfering heavily in the case of Poland and at the request of the European Commission. As the Polish prime minister pointed out, if Poland were to implement the ECJ rulings empowering Polish judges, in violation of the Polish constitution, not to recognise judicial appointments made after the 2017 reform of the Judicial Council (KRS), this would cause legal anarchy, as “millions” of judicial decisions could then be challenged. In Strasbourg, Morawiecki again explained that the Polish constitutional ruling does not call into question the primacy of EU law or the articles of the treaties signed and ratified by Warsaw, but only their interpretation by the ECJ when that interpretation goes beyond the competences conferred to the EU by the treaties. As in other EU countries – a fact that was emphasised by the Polish prime minister – the national constitution is the supreme law, and the primacy of EU law can only be exercised within the framework of competences delegated in accordance with the Constitution.


If you want to create a European superstate, without nations, first get the agreement of the peoples of Europe”, concluded Morawiecki, who had begun his speech by calling on the European Commission to take on the tasks that fall under its area of responsibility in order to solve the real problems of Europeans, such as the current record energy prices.


Speaking on behalf of the ECR Group, PiS MEP Ryszard Legutko said that Poland was not afraid of European law but of European lawlessness, of the way in which the rules of democracy and the rule of law are being trampled on by the EU institutions and in particular in the European Parliament, where a dictatorship of the majority is being exercised against the ECR and I&D groups. He was apparently not listened to. According to the Polish MEP, to claim that there would be primacy of EU law in areas where the EU has no competence would be as absurd as claiming the primacy of EU law over the law of Texas. Legutko was probably referring to the recent European Parliament resolution calling for the repeal of the Texan abortion law.


It was also in vain that the French MEP Nicolas Bay (RN) pointed out “that the powers of the European Union are only those delegated by the nations to Brussels” and that “the treaties clearly delimit these attributions”. The Frenchman said that Europeans should welcome the Polish court’s ruling and called on the Polish government to stand firm in the face of Brussels’ attacks. It is true to say that the French elections next spring could change the situation, if we are to believe the numerous criticisms of the ECJ’s militant excesses (the Polish prime minister himself spoke of the ECJ’s “judicial activism” during his speech) made, before and after the Polish ruling, by declared or potential candidates in the French presidential election.

Godwin’s law replaced by Putin’s law

German MEP Manfred Weber, as the leader of the centre-right EPP group, took the opposite view that EU rules are more important than member states’ constitutions (a view not shared by the German Constitutional Court, nor by the French Constitutional Council and the French Council of State, to mention but two countries), and that national constitutions should adapt to the ECJ’s evolving case law. “You are sowing discord with your speech today”, he reproached the Polish prime minister, adding that it surely made Vladimir Putin very happy.


Spain’s Iratxe García Pérez, speaking for the Socialist Group (S&D), agreed with Weber in accusing the Polish government of authoritarianism and demanding a stronger reaction from the Commission. According to García Pérez, who would probably do better to take a closer look at her own government’s problems with democracy and the rule of law, the citizens of Poland, Hungary and Slovenia “are suffering from the authoritarian drift of their government” and “have confidence in the EU”, so the European Parliament “is not going to let them down”, any more than it is going to let down Polish women when it comes to defending their rights. This thinly veiled reference to the Polish abortion law, which is also outside the EU’s remit, came up again more openly in Wednesday’s “debate” on the rule of law in Poland, where abortion was in fact the main topic of the day.


Dutch MEP Malik Azmali, speaking for the centrist Renew group, accused the Polish prime minister of putting the EU’s stability at risk and his government of having been, for years, “affecting the minds of Polish people with lies and manipulation”. Presumably believing that Polish voters are too stupid to see through any such manipulation and to vote accordingly, Azmali then turned to the President of the European Commission and asked her to reject the Polish recovery plan and to trigger the conditionality mechanism to suspend payments linked to the annual budget.


Germany’s “Ska” Keller, speaking on behalf of the Greens/EFA Group, told Poland’s Mateusz Morawiecki: “Your government has turned its back on the rule of law, on the independence of the judiciary, on minorities, on almost anyone who does not fit your reactionary ideology.”


Her fellow countryman Martin Schirdewan, from the Left Group in the European Parliament (far-left), also had some very harsh words for PiS-ruled Poland, and in particular about the infamous “LGBTI-free zones”, which do not actually exist, but which, according to this German “antifa”, “are promoted” by the government of Mateusz Morawiecki. On abortion, Schirdewan said: “I find it outrageous how your government denies women in your country the right to bodily self-determination. We no longer live in the Catholic Middle Ages, where a chastity belt was put on women.” On immigration, he said: “Now your government wants to build a fence against refugees on the border with Belarus. Fences do not solve political problems.”

To see all the speeches with their translation in English or any of the EU languages:

(The first speakers are Ursula von der Leyen and Mateusz Morawiecki)

“So this is war!”

Echoing the words heard on Polish Radio on 1 September, 1939, MEP Jacek Saryusz-Wolski said after Tuesday’s session of the European Parliament: “So this is war, it will not be the amicable way.” Saryusz-Wolski used to be a leading figure in Donald Tusk’s Civic Platform (PO) after he had been one of the main architects of Poland’s entry into the European Union in the 1990s. However, disgusted by the way his Polish opposition colleagues were bending over backwards in Brussels to get EU sanctions imposed against their own country after being ousted from power by Polish voters in 2015, Saryusz-Wolski then moved away from the PO and closer to PiS, with whom he now sits in the European Parliament. He did the right thing, because his former friends continue to demand sanctions against their country after losing the elections again in 2019, as they showed during the October 19 session of the EP, including through the voices of former members of the Polish United Workers’ Party (PZPR, the former Communist party of the dictatorship era) still present in The New Left (Nowa Lewica, an alliance of the post-Communist left and the LGBT left). The former young Party apparatchiks turned old democrats complained again on Tuesday in the European Parliament about the lack of freedom in Poland.


We interviewed MEP Jacek Saryusz-Wolski in 2018, when he told us about what was going wrong with the EU and with the EPP Group, of which he had once been vice-chairman.


He believes that the time for explanations is over and that Poland must now implement its “constitutional shield” against EU actions outside its fields of competence, that it must seek funding for its recovery plan without doing so through the EU (as Hungary has already started to do), and that it must use its right of veto in the European Council at every opportunity. Like Saryusz-Wolski, on Wednesday Polish MP Krzysztof Bosak, one of the leaders of the nationalist, right-wing opposition to the social-conservative, Christian-democratic PiS, called on Prime Minister Mateusz Morawiecki and his government to leave the Next Generation EU recovery plan, saying that “if there is no willingness to cooperate, Poland should not be humiliated by begging for a common credit”.


Being openly supported in this conflict by Hungary in particular, but also by several other Central European countries, Poland could also block the adoption of the Fit for 55 climate plan proposed by the European Commission, or even renege on its commitments in terms of energy transition, as the funds promised to support this transition are currently being withheld in Brussels.


However, it should not be forgotten that the Polish government backed down last year on the issue of the conditionality mechanism when it was in a much less uncomfortable position than it is today, especially as it is now facing a daily fine of half a million euros over the Turów mine, and the Commission made it known this week that it was about to send a first payment order to Warsaw. Faced with Brussels’ demands, PiS has already promised to abolish the disciplinary chamber of its Supreme Court, and other concessions could follow. Whatever happens, the EU is now entangled in a logic of permanent internal conflict that can only get worse. And even if the situation were to improve rapidly, resentment will remain and will have consequences for the future of Europe. In this sense, the foundations for a possible Polexit have been laid, and the Polish opposition will have contributed a great deal. However, the EU’s move towards a government by judges is not just a matter for Poland. This was indeed a major argument in favour of Brexit, as the ECJ’s activism challenged the principle of unlimited parliamentary sovereignty that is the basic principle of British democracy. Others could follow soon…