The spectre of "Polexit" roams Europe

At the last EU summit in Brussels (October 21-22), Angela Merkel needed extraordinary political skill to persuade her colleagues to do without sanctions against Warsaw. But Euro-tolerance was insufficient even for a week: the European Court of Justice (the highest legal authority, to which the founding fathers, already at the start of integration, imposed the obligation to monitor compliance with Euro-agreements) issued a daily (!) fine of €1 million to Warsaw just two working days after the summit.

The statement of the European Court says: "Poland is sentenced to pay €1 million a day in favour of the European Commission, until it suspends the national legislation, which, in particular, belongs to the jurisdiction of the Disciplinary Chamber of the Supreme Court”. Separately, the court's ruling notes: it is necessary to "avoid serious and irreparable damage to the legal system of the European Union and the values on which it is based, in particular the rule of law."

The case in the practice of the EU is unprecedented, especially since the European Commissioner for Justice Didier Reynders asked for a fine of "only" 100,000. After the fact, it should be added, it turned out that in the EU there is even no procedure for forcing such payments.

So why did the European-Polish confrontation over the "contradictory", as diplomatically expressed in Brussels, judicial reform of this country, which has been protracted for many years, reach such a fundamental level?

The last straw for the old-timers of the EU accustomed to thinking consensually was the decision of the Constitutional Court of Poland on October 7. Having proclaimed a number of euro-laws and regulations contrary to the basic law of the country, the Constitutional Court put Polish law above the Union law and created a rattling precedent, laying a mine under Brussels, against which even the English "Brexit" looks like a prank.

It smells more than just "Polexit" (this term is already walking around Europe). The question is: what is the point of the European Union in principle, if its members can choose at their discretion which general norms to follow and which not? A country with a 15-year European experience, showered with a hail of donations and grants from Brussels, put the entire European structure at risk.

The ideologists of judicial reform from the ultra-conservative Law and Justice party launched it to "clean up" the judicial corps in the light of their tasks, but in the end they made the whole of Europe hostage to their showdowns with objectionable judges and prosecutors. It was invented to rein in the latter through the same disciplinary chamber – it has the power to deprive of immunity, subject to criminal prosecution, and cut salaries.

The head of the European Commission (EU government), Ursula von der Leyen, said that this contradicts the norms of European law. Warsaw replied that this question does not concern Brussels. After that, the parties filed a lawsuit in the court, moreover, each one in their own court. Quite expectedly, everyone won in their own court. What's next?

It's not clear yet. There is no timetable for consultations, decision-making is much less seen: the parties prefer non-public diplomacy, which results in a fray on nerves. The EU is waiting for "work on mistakes" - the abolition of the disciplinary chamber or the adjustment of its powers, as well as the "reintegration" into the judicial corps of those whom it has already sanctioned, Ursula van der Leyen recalled.

Remarks about "blackmail", "abuse of fines" and "protection of sovereignty" are heard from Warsaw. Prime Minister Mateusz Morawiecki went further than others in it, having managed to declare that any measure to reduce the euro funds promised to Poland would provoke a "third World War". "If the European Commission will start World War III, we will defend ourselves with any weapon," he said in an interview with the Financial Times.

Meanwhile, real sanctions are at stake. First of all, we are talking about the Recovery and Sustainability Fund (the decision to create it was made at the end of last year) with a total amount of €750 billion, which the EU intended to distribute among member countries to restore the economy after the pandemic. Poland was to become one of the main recipients – it was planned to allocate to it €23 billion in the form of EU grants. Plus another 32 billion in the form of cheap loans.

All this is up in the air. Warsaw submitted a national plan for spending these funds to Brussels for approval in May. The first tranche (13% of the promised share – about €4.6 billion) was expected in August. But the review is delayed – if a decision is not made by the end of the year, there will be no payments before the summer of 2022.

In September, European Commissioner for Economics Paolo Gentiloni made it clear that the allocation of EU money to Warsaw is the subject of negotiations, which, "as the Polish authorities know well," concern "including the issue of priority of EU law." 

The European Union is obviously delaying discussions on the Polish recovery plan. Although they are not directly waving the threat of large-scale sanctions - it is dangerous. After all, it's not a secret that tough discussions on the borders of national sovereignty and competencies, especially with countries from Eastern Europe, are no longer uncommon in the EU. As well as the use of financial pressure as an argument.

Hungary's economic recovery plan also hung up this summer (the country did not receive $7.2 billion from the EC), and this happened after Budapest passed a law prohibiting showing materials about homosexuality to children. Who's next?

It is quite likely that the matter is not even in liberalism or the rule of European law. It's just that the old-timers of the EU, who are the main "donors", are tired of financing the "disobedient ones", especially the "defiantly disobedient ones", and decided to remind who is the boss in the European house. However, it was done in such a way that it led to a dead end: as millions of Polish fines increase every day, it becomes more and more obvious that they are unlikely to be paid.

Because of hopelessness, the case is likely to end with a compromise that will reveal the weakness of the EU institutions, and the question of what law is the decisive one will remain unanswered. And this precedent – the "precedent of impotence" - is perhaps even more dangerous for the EU than the spectre of "Polexit", which has not yet materialised either in Poland or in Europe.