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Conflict of jurisdiction between Brussels and the EU’s East getting nasty (Part 1)

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Warsaw demands EU treaties be complied with and refuses to pay fines imposed by the ECJ


A series of three articles by Olivier Bault dealing with the current conflicts between the European Commission, the ECJ and the member states opposing judicial activism at the EU level. Warsaw, Bucharest and Budapest are particularly targeted by the Brussels authorities on this issue, whereas the rulings of French and German constitutional judges are actually similar to those of their Polish, Romanian and Hungarian counterparts. The first part of this series of three articles is devoted to the deepening differences between Poland and the ECJ.


The limits of the ECJ’s jurisdiction and of the European institutions’ fields of competence are presently being drawn, with ongoing conflicts involving three countries and their constitutional courts in particular: Poland, Hungary and Romania. These are countries that are net beneficiaries of EU funds, and Eurocrats in Brussels probably think that it will be easier to bend them than to make the German Constitutional Court back down.

With Germany now having a government with an overtly Eurofederalist coalition programme, Berlin will likely take on the task of setting its own constitutional court straight, after it questioned, in a May 2020 ruling, the applicability in Germany of an ECJ decision validating the ECB’s sovereign debt purchase programme.

The judges in Karlsruhe consider that the member states remain “masters of the treaties” and that it is up to the national constitutional courts to control the judges in Luxembourg when they take too much liberty with those treaties.

The ECJ’s 11 December 2018 ruling on the ECB’s sovereign debt purchases was thus declared by the German constitutional judges to be ultra vires (delivered beyond the powers of the European court) and therefore not applicable in Germany. On 9 June 2021, the European Commission opened an infringement procedure against Germany in relation to this judgment, but without the angry statements about violations of the rule of law and European values and about the questioning of the primacy of European law that have been heard on later occasions, with talk of a constitutional court’s decision undermining the whole edifice of European integration. And most of all, in the German case the Commission’s infringement procedure is not supported by financial blackmail as in Poland’s case. And for good reason! Germany is the biggest net contributor to the European budget. This is in contrast to Poland, which is still the largest net beneficiary, at least if we take into account only the budget itself and not all financial flows or the CO2 emission allowances market.

That is why the Polish Constitutional Tribunal’s 7 October ruling – which also acknowledged as ultra vires the ECJ’s recent decisions giving Polish judges the right not to recognise the legitimacy, and therefore the rulings, of judges appointed after the judicial reforms that came into force in 2018 – was an opportunity for the European Commission to use, albeit without saying so, the new conditionality mechanism, also known as the “rule of law” mechanism, with regard to the allocation of funds from the Next Generation EU recovery plan. In so doing, the Commission has been violating the rules governing the allocation of these funds, and has also gone counter to the conclusions of the December 2020 European Council, which had set the framework for the use of this conditionality mechanism. In the eyes of many Eastern Europeans,

this has come as a confirmation that the new “rule of law” mechanism is in fact meant to become a powerful instrument of blackmail, enabling Brussels to impose its views even in areas that theoretically fall within the competence of the member states under the EU Treaties.

The Commission’s refusal to approve the recovery plan submitted by Warsaw – a prerequisite for the Council’s green light for this plan – preceded the Polish Constitutional Tribunal’s ruling, and it was from the beginning overtly used, by the Commission’s own admission, to put pressure on its judges after the Morawiecki government refused to withdraw its referral. When the Polish Constitutional Tribunal delivered its ruling on 7 October, the outraged reactions contrasted with the concerned but very moderate reactions to the German Federal Court’s judgment of 5 May 2020. In both cases, however, the national constitutional courts have merely reaffirmed the primacy of the Constitution in the national legal order and the fact that the European Court cannot take decisions that would involve a transfer of sovereignty not enshrined in treaties duly signed and democratically ratified, or that would otherwise violate those treaties. Without going so far as to confront the ECJ, since there was no conflict of jurisdiction in this case, the French Constitutional Council’s position was no different when it noted in its ruling of 15 October 2021, with regard to European law, that “the transposition of a directive or the adaptation of domestic law to a regulation cannot run counter to a rule or principle inherent to the constitutional identity of France, except with the consent of the constituent.

In the case of Poland, on 22 December the European Commission nevertheless opened an infringement procedure “for violations of EU law by its Constitutional Tribunal”. It should also be recalled that, in relation to a similar judgment in July by the Polish Constitutional Tribunal denying the ECJ the right to issue an interim order suspending the Disciplinary Chamber of the Polish Supreme Court, the ECJ has imposed on Poland, at the request of the Commission, a daily penalty payment of 1 million euros, which Warsaw refuses to pay.

Responding to the ECJ’s actions, the Polish minister of justice, Zbigniew Ziobro, has therefore referred to the Polish Constitutional Tribunal the question of the conformity with the Polish Constitution of this daily fine decided by the ECJ on a question concerning the organisation and functioning of Polish constitutional bodies, in this case the judiciary. The Polish Constitutional Tribunal is scheduled to consider this issue on 22 February. At the same time, Warsaw also refuses to pay the daily fine of €500,000 ordered single-handedly by the ECJ Vice-President for failure to comply with her own interim order to shut down the Turów lignite mine pending a judgment on the merits. Poland considers that the closure of this mine, which provides fuel for a power plant that produces between 5% and 7% of the country’s electricity, is a

violation of the European treaties, which give member states control over their energy mix and energy security, and points out that a decision of this magnitude, taken by a single judge before a ruling on the merits, is a first in the history of the European Union.

On 23 December, Minister Ziobro announced that he was also referring to the Constitutional Tribunal the question of the compatibility of the conditionality mechanism with the Polish constitution. As this mechanism effectively allows the Commission to make demands outside the areas where member states have relinquished sovereignty, it would not be surprising if the Constitutional Tribunal were to find its implementation incompatible with the Polish Constitution, even if the ECJ decides, as its Advocate General suggests, that this mechanism does not violate the EU treaties.

In an interview for the Gazeta Polska codziennie newspaper published on 23 December, PiS leader and deputy prime minister in charge of national security Jarosław Kaczyński insisted that the blocking of funds from the Next Generation EU recovery plan had no legal basis whatsoever and was in clear violation of the principles of the rule of law. More generally, in Kaczyński’s view, it can be said today that “the treaties have ceased to apply within the European Union and the ECJ has become the new legislator.

To be continued:

Part 2: EU case law vs national constitution: rulings and counter-rulings by ECJ and Romanian Constitutional Court

Part 3: Hungarian Constitutional Court says national authorities must make up for EU inaction on immigration