Until 10 years ago, it was impossible to imagine that any judge, acting on behalf of the European judiciary, would prosecute a country under various political pretexts, imposing financial sanctions alone, without any authorisation to do so included in either of the two European treaties.
The text was primarily published in the “TVP Weekly” (“Tygodnik TVP”) online magazine from Polish public television
The unusual cases that have recently happened to Poland in EU institutions prompt us to ask how did what we are witnessing today come about? Of course, when trying to answer this question, it is impossible to ignore the issue of two great conflicts, which constitute the background for these extraordinary cases, without which, with all probability, they would not have taken place.
The first conflict is the result of a violent dispute over power, the likes of which have not been witnessed in recent Polish history, and which is tearing the Polish state and its politics apart. This dispute clearly inspires and drives EU institutions to seek new means of exerting pressure on the Polish government. Sometimes it is even straightforward, as when the hesitant European Commission led by Jean-Claude Juncker prompted a court indictment against Poland with a dramatic demand from former presidents and prime ministers of the Polish state.
The second conflict is, of course, the ideological battle sweeping through the entire West, which causes politicians and “old-style” parties, while maintaining control over European politics, to live in growing fear that one day they may be deprived of that control, as a result of tectonic changes in European politics which bring to the top new parties and figures. These are so different from today’s “mainstream”, such as Éric Zemmour, Viktor Orbán, Matteo Salvini, Santiago Abascal, or Jarosław Kaczyński.
Without this fear, the EU institutions would surely not have such a free mandate to weaken in various ways countries in which the European version of “Alt-Right”, more mild than the US, but still intolerable, has already come to power.
With no authority
Nevertheless, it is obvious that matters between Poland and the EU institutions would never get to the current point if it were not for these two fundamental conflicts, both taking place simultaneously on the level of both pure politics and ideological dispute.
However, another, no less interesting issue, is the transformation of the European institutions themselves, which, at first glance, are acting against one (so far) member state in a way that not only would have been impossible a decade ago, but really only a few, would have then assumed that they would act so. At that time, it was almost impossible to imagine that any judge, acting on behalf of the European judicature, would pursue one state under various political pretexts with such great determination and efficiency, imposing single-handedly financial sanctions on it, without any, even negligible authorisation to take such steps in one of the two European treaties.
These two treaties have so far been regarded as a kind of “constitution” of the EU, that is, acts specifying precisely which competences the Member States have handed over to the EU institutions and which they have not. Hundreds of textbooks state that the EU state’s essence of EU “legalism” lies precisely in the fact that every act of EU authority always results from the competence conferred by the treaties.
Similarly, even a decade ago, no one could imagine that the European Commission, known for promoting the rules of “good governance” at the time, could arbitrarily suspend the implementation of the enacted budget against one state, silently telling its government that it would “release” a budget, provided that the prime minister of that state withdraws from the national constitutional court a complaint with which the EC is dissatisfied.
If such an unusual case were to be viewed through the prism of an analogy between the EU and a federal state, it would be as if, the US government suspended funding for the state of Texas, promising that it would release it if the state abolished the anti-abortion law that has just been passed. Does it sound ridiculous? Today - yes, but it might not sound that way in the US in the next few years.
The pecking order
For in one respect, little has changed in human history: politics has always had, and will continue to have primacy over some “legal principles” or rules of “good governance”. Anyway, this is where both the greatness and the horror of politics come from.
The question is often asked, whether was it not the Lisbon Treaty that has opened the door for this contemporary political “free-for-all” attitude, such as the one that is now going on, almost without rules and laws, between the EU institutions and Poland? If that was the case, it would be easy to blame those politicians who capitulated twice on behalf of Poland under the treaty: first Aleksander Kwaśniewski and Marek Belka, then Lech Kaczyński.
However, it is not like that. That treaty had another significant drawback, when viewed from the perspective of Polish interests. It was the result of a close Franco-German alliance concluded by Jacques Chirac and Gerhard Schröder, who did not conceal the intention of creating a “European centre of gravity” and “giving Europe leadership” (as it was openly written in the Versailles declaration for the 40th anniversary of the Elysée Treaty). The Lisbon Treaty was therefore to create new institutions and procedures that would clearly prioritise the European - so far rather informal - pecking order, so as to be able to control the expected wave of “barbarians,” that is, Poles, who would soon be inside the EU.
Therefore, the main idea of the Lisbon Treaty system was to ensure hegemony for the leaders of the strongest countries, which was to be made possible by the concentration of power in the European Council. Its practical effect was the present Europe which we are familiar with, manually managed, especially during crises, by Angela Merkel, sometimes choosing to help other, politically weaker (along with the weakening of France) tenants of the Elysée Palace to give it a chic appearance.
Yes, it was supposed to be a Europe of superpowers, which already had to put into question respect for our interests. For example in such matters as the unitary market, openness to competition, the threat of protectionism and energy solidarity. The following years were to show that these were not imaginary threats.
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But all this does not change the fact that in the post-Lisbon EU nothing presaged that soon Brussels and Luxembourg will dream of the role of some sort of the modern Rome, whose lawyers and officials, “like Roman legions, will receive orders to subjugate other peripheral provinces and ruthlessly carry them out” (to use Professor Andrew Tettenborn’s sarcastic parable). It seemed that the treaty clearly separated national, EU and mixed competences, while the mechanism of blackmailing one country with sanctions, for whatever reasons, is rigorously rationed by the requirement of unanimity of all other governments of the member states.
If something was to be feared, it was the brutality of the great powers in the intra-EU game for their interests, but not the excessive demands of the EU community institutions, such as the European Parliament, the EC and the courts.
Therefore, at that time, no controversy was raised by the provision in the content of the second, more detailed treaty, which gave the EC the right to formulate a “reasoned opinion” in the event of a “breach of the treaties” by a state, and in the end - the right to appeal to the CJEU.
I do not rule out that the leading officials of the then EC, led by Roman Prodi, were aware of what could be done with such a provision in the future. But the truth is, outside of Brussels, one had to be very imaginative to anticipate the further developments.
From this innocent-sounding provision of Article 258th of the second treaty, new and bizarre things started to happen. When Hungary adopted a new constitution, for doctrinal reasons very displeasing to the European left, an amazing thing was invented in Brussels. Yet as usual in the EU, it was named using typical bureaucratic newspeak: “The framework for the rule of law”. This “framework”, endorsed in 2014 by both the European Council and European Parliament, gave the EC an extra-treaty power to exert pressure on Hungary to amend its constitution.
System of penalties
As a matter of fact though, the first time that this “framework” was used was in 2016, as a political tool to start a so-called dialogue with Poland, that is - in the language of real politics - initiating the process of harassing the government in Warsaw in defence of the opposition’s nominees to the Constitutional Court. And it was quite a successful experiment. Even then, the EP and the EC showed growing enthusiasm for more competences when it came to the mission of overseeing the policies of at least a few member states.
However, this process would not have accelerated as much had it not been for the great financial crisis, which created firm precedents in this field. The political consequences of the crisis not only re-profiled the mission of the EC itself, but also changed the relationship between the Brussels Eurocracy and the Member States. Initially, the crisis created pressure for gigantic financial “bailouts” and the communalisation of the debts of the affected countries, all the stronger as it was exerted jointly by the most indebted Mediterranean countries, the European left (which is natural), but also bankers who wanted certainty of repayment of the money borrowed.
At that time, Berlin, quite wisely, decided that it had to put an end to this pressure and formulate tough conditions for new “bailouts.” And so in 2011, instead of the dream Eurobonds, the EU first received the so-called a six-pack (with great commitment from the then Polish Presidency in the EU), and then the Fiscal Pact - a solid portion of legally guaranteed restrictions and penal procedures. The French socialist minister then angrily called these acts “pillars of Madame Merkel’s Bismarck policy.” Either way, their essence lay in the unprecedented structure of international supervision over the economic policies of the EU countries.
Until then, this supervision was in practice exercised only with regard to national budgetary balances (the so-called excessive deficit procedure), but new laws commanded the supervision of public debt and other macroeconomic equilibrium elements (for example, the country’s current account). What is more, while no supervision was associated with the threat of sanctions at that time, the new laws created a system of financial penalties and their effective enforcement through forfeiture of deposits made by member states and blocking the disbursement of European cohesion funds.
The key transformation
There had to be an institution that could be entrusted with a completely new mission in the EU of creating correctness criteria, conducting control, building a system of supervision over governments and central banks, and finally - enforcing all these and imposing sanctions. All of this vast, complex and politically controlled “scoreboarding” system has now come under the responsibility of the European Commission. Characteristically, the first country to be punished in this manner was... Hungary. The circumstances of that conflict between the EC led by José Manuel Barroso with the Hungarian government leave no doubt that it was the first time that the pretext was used for a financial attack on the member state, which, although in a fairly good economic condition, was stigmatised by the European left due to the growing ideological dispute.
This new power of financial surveillance over the states merged with a seemingly harmless competence to give opinions on “violations of the treaties” that states might perpetrate. Thus, the EC has become the “guardian of the treaties”, with extensive supervisory and criminal powers, without actually defining their scope. In the EU system, it was a key institutional change that was being completed at that time.
Soon enough, it was about to gain real political momentum, when the fundamental issues of sovereignty and democracy were brought to a knife edge for the first time. Supervisory pressure forced a change of government in Greece, as the prime minister of the country wanted his financial agreement with the EU to be approved by referendum. “A madman,” French President Nicolas Sarkozy, a realist, said of him at the time. A few days later, the same external pressure led to the resignation of the Italian government, which tried to evade that fate by refusing to immediately comply with the “recommendations” it had received.
Thus, the officers of EU institutions became new prime ministers in both countries. Lukas Papademos from the European Central Bank and Mario Monti - until recently a member of the EC. In Athens, the opposition was forced to withdraw from the postulate of quick elections, and in Rome a new budget law was dictated. The honest Mr Monti, shortly before his nomination, openly admitted that “Italy is beginning to be taken over by a technical government with centres in Berlin, Brussels and Paris.”
With regard to the intra-EU changes, it is not important at the moment whether these drastic measures actually saved these countries, or perhaps - quite the opposite. The important thing is that it was Brussels who had a strong conviction that the policy of these countries should be such and not different. And under the influence of such a conviction, political turning points were brought about in two countries and what changed was not only the political direction of the local authorities, but also the authorities themselves. Such a change would aim for the takeover of government for some time by trusted functionaries of EU institutions. And here lies the essence of the political precedent that cannot be overestimated and is well remembered in the EU.
Exactly a decade ago, while reflecting on the future effects of such changes, I made a hypothesis that perhaps a new and extremely interesting phenomenon was emerging on the European periphery, which would be the “mandate state” revitalised in the history of Europe. This hypothesis, of course, referred to the well-known idea of an “international mandate”, the purpose of which was to reform and modernise countries that were dominated by the central powers before WWI, and to the famous content of Article 22 of the 1919 League of Nations Convention. Its creator - the British minister Lord Balfour, described it as a supervision, which combined the ideas of monitoring, support and management.
The mandate itself is to contradict the colonial idea, because it is not about exploitation, but about helping those who - according to the outside world - are unable to cope on their own. Therefore it would resemble, to some extent, a temporary and partial subjugation, in order to lead to difficult matters that such people could not cope with on their own.
Undoubtedly, the most far-reaching - though unrealised - contemporary project of the “international mandate” was the appointment of a special EU commissioner responsible for Greece’s implementation of international recommendations, put forward in 2012 by the German government. Since then, the conviction in Europe that such a temporary “international mandate” may be a way to overcome the problems caused by the peripheral states that have joined the EU since 2004 has by no means faded away.
Courts seizing power
All the institutional changes that enabled the dispute with Poland were completed by the trend, which was still going strong over the last decade, to increase the political role of the courts in the EU system. Let’s make it clear - this is not a trend specific to the EU courts, because its strength and momentum can be observed almost every week in judgments issued by the national courts of the Member States.
Polish judges, openly refusing to apply laws passed by a parliament with a conservative political majority, may have gone extremely far here. But we could observe a similar phenomenon of “seizing power,” traditionally belonging to democratically elected politicians. For example in England, judges tried to decide on the country's continued EU membership. In Germany and Spain, during the [COVID-19] pandemic they usurped the most classic right of a sovereign - to define prerequisites and conditions essential to announce the state of emergency.
There are many reasons to believe that this trend is one of the most important systemic and political phenomena taking place in present-day Europe. When it comes to the Luxembourg court, the idea that it is to be the only constitutional court in Europe ultimately deciding on the content and validity of all rights that would be established anywhere in the EU has been present in its various judgments for many years.
A political novelty, which took place no sooner than in 2018 precisely in the case of Poland, is that the EC, deciding to file a court complaint demanding the annulment of the Polish judicial reform by the CJEU, created a precedent of historical importance. She gave the judges a signal of political consent to such action, which no longer respects the treaty division of competences, but expects to put a government whose continued existence is not accepted at EU summits up against the wall.
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I dare to believe that the CJEU has been waiting for such an opportunity for a long time. For the first time, a plan to demonstrate to a Member State that all its legislation will henceforth be politically overseen by the EU, regardless of what is written in both treaties, this time, will prove effective. It would be a real milestone for the judges and the so-called Venice Commission, who postulated for a long time to transform Europe into “jurisdictional democracy.”
The judges have been given wings by the fact that the dispute between the EC and Poland, in which they were supposed to get the final word, concerns the status of a judge corporation in Poland, thus an additional opportunity appeared to manifest pan-European corporate solidarity.
Although, frankly speaking, the CJEU had skillfully prepared the ground for this long-awaited main dispute with the government in Warsaw. It was made possible when a Spanish judge, at the request of the EC, first ordered Poland to stop logging trees in the Białowieża Forest [in the eastern part of the country], and then - in an absolutely unprecedented manner - the CJEU justified its right to strengthen this order by ordering financial sanctions.
The merits of the case were of a rather marginal nature, so, at first, to be honest, I underestimated the true revolutionary potential of the CJEU’s decision rejecting the arguments of the Polish government. It was just then that it justified the thesis that even the so-called temporary decree against the state may be enforced with financial sanctions, also if such a possibility is not mentioned by any of the treaties which Poland referred to.
There is no doubt that the judges acted with the awareness of the importance of this precedent when it came to deciding the fundamental accusation against Poland by the EC.
It was then, in 2018, that all the institutional equipment needed to convict a politically inconvenient criminal was completed, as well as the scaffold on which an international execution would take place. The only problem that remained was that in order to fully implement the “international mandate”, the convict must somehow be led to the scaffold, because only then would it be possible to establish a new, politically correct, better authority on the mandate territory. As it stands this problem has not yet been resolved.