Could you comment on the decision delivered by the European Court of Justice on Oct. 27? I am referring to that daily fine of €1 million imposed on Poland for failing to completely suspend its Supreme Court’s Disciplinary Chamber. This comes after the Polish Constitutional Court ruled in July that the ECJ was acting outside the EU’s jurisdiction when issuing an interim order concerning Poland’s Disciplinary Chamber and that executing such an order would go contrary to the Polish constitution. Has the jurisdictional conflict between the EU and Poland turned into a full-fledged war?
I would prefer that the term “war” be reserved for military issues, although I know that in politics it is often misused. However, it is undoubtedly an attempt to deprive Poland of its sovereignty. Poland, of course, has agreed to be part of the European Union, but only on very precisely defined terms enshrined in the treaties. The most important part of what we are talking about is Article 5 of the Treaty and the so-called principle of conferral. Generally speaking, what it tells us is that the EU is not a state. Consequently, it can only have those powers which are voluntarily conferred upon it by the member states. As it happens, Poland has never conferred powers upon the European Union to deal with the organization of its judiciary. This matter is solely a matter of national law and not EU law.
The daily penalty we are talking about today concerns precisely the area of judicial organization. This is a clear violation of the Treaty and of the competences that the Union has. Simply put, it is lawlessness and a violation of the rule of law. This is the first reason why Poland cannot agree to this, because if it agrees to lawlessness in this particular case, in a short while the ECJ will be dealing with yet other matters for which it has no authority.
This is true, but in August the Polish authorities announced that they would abolish the Disciplinary Chamber. However, the European Commission and the ECJ, in its recent rulings against Poland, have objected not only to this disciplinary chamber of the Polish Supreme Court but also to the reformed National Council of the Judiciary (KRS). They also question the legitimacy of the Polish Constitutional Court. Aren’t you concerned that backtracking on the Disciplinary Chamber issue won’t solve the jurisdictional conflict?
As I have said, this is a test of how far the EU institutions can go. The primacy of the Constitution derives directly from our Basic Law, which after all is still in force. Accepting the reasoning imposed by the ECJ would mean that the Polish Constitution is no longer binding. Poland obviously cannot agree to this, because it would mean that Poland has in fact ceased to function, that it is a geographic land, but that decisions concerning what happens in Poland are already being taken outside Poland and that Poland is not a sovereign state, that Poles cannot govern themselves in their own country. For this reason, we cannot agree to these decisions of the ECJ.
A few days ago you made available on your social networking profile a comparison made by the Polish Ministry of Justice, which shows that the executive in Poland has much less influence over judicial appointments than in Germany. You were previously Deputy Minister of Justice, can you describe in a few sentences the main differences between the two countries?
As far as the system of appointing judges is concerned, in brief, it looks like this: in Poland, judges are appointed by the National Council of the Judiciary, the KRS, which is composed mostly of judges. The judges sitting on the KRS are appointed by a three-fifths majority vote in the Sejm, and I remind you that our government does not have such a majority. This means that, in order to appoint someone to the KRS, there must always be a much broader agreement, and in any case, judges are a majority on this council.
In Germany, on the other hand, judges for the federal courts are chosen by a commission that is made up of the justice ministers of the Lander, i.e. politicians for one half, and the other half are people elected directly by politicians, i.e. by the Bundestag, and they are very rarely judges. So in Poland, judges still appoint judges, and it is claimed in Brussels that it is a politicized system, whereas in Germany politicians appoint judges, and it is claimed that it is not a politicized system. This is absurd!
Isn’t such unequal treatment experienced at the EU level by Poland and Germany, just to take Germany as an example, a direct result of the Polish opposition’s overactivity in Brussels? Apart from maybe the Hungarian opposition, I cannot think of any other national opposition in the EU that would behave like this in Brussels.
It is true that the Polish opposition has a very strong influence on what is happening. Why does it behave this way? This is the “good” old tradition, so to say, of the Polish Targowica, which, seeing that it cannot gain power in the normal way envisaged by law, resorts to external forces to help it gain power. These are situations that the Polish First Republic knew very well and this is what led to the fall of Poland at the end of the 18th century. Today’s Polish opposition is behaving along the same lines. Finding itself unable to convince a majority of voters in democratic elections, it wants to gain power with the help of German power.
Now the situation is such that there is this daily penalty placed on Poland by the ECJ for as long as the Polish Disciplinary Chamber will not be fully suspended, there is the European Commission which is blocking money from the Next Generation EU recovery fund for Poland, and soon the so-called “rule-of-law” conditionality mechanism will come into force, as no-one seriously expects the ECJ to reject this mechanism, even if it is a clear attempt at bypassing Article 7 of the Treaty on European Union. So what can Poland do even if it is right from the legal and moral point of view?
Poland has many tools at its disposal. Unfortunately, we have lost some of these tools by making unnecessary concessions, but I do not want to go back to that. However, let us remember that Poland will soon become a net contributor, which means that Poland will pay more to the budget than it will receive in terms of EU funds. This is going to happen with the next multiannual financial framework, and Poland could deduct this money from its contribution to the budget. Of course, if one were to take all financial flows into account, the situation today already looks quite different than it does from the EU budget alone.
The second thing Poland can do right now is to withdraw from the EU’s insane energy policy and from the European carbon emissions trading system, the ETS. We should keep in mind that according to government documents, even before the Fit for 55 package was presented by European Commissioner Frans Timmermans, the energy transformation, without rising prices due to the ETS, was to cost Poland 1.5 trillion zlotys over the next few years. This is a lot more than Poland receives from all the EU funds, and given that Timmermans’ ideas are still to be implemented, this amount will actually be many times greater. Poland does not have to implement this, and this is the second thing Poland can do, besides deducting the amounts withheld by the Commission from Poland’s contribution to the budget.
Poland has a lot of possibilities to defend itself, but we have to start conducting an assertive international policy.
Should we expect frequent vetoes from Poland from now on in the European Council, where unanimity is required as a rule?
The problem is that European Council decisions are not sources of law. As far as the climate package is concerned, much has already been decided, and unfortunately, Poland did not use its right of veto, and Fit for 55 will be adopted in the Council rather by a qualified majority. Poland, on the other hand, must withdraw from the ETS.
Shouldn’t Poland go even further and make it known in Berlin and Paris that without the money from the EU recovery fund and in the face of increasing daily fines imposed by the ECJ, Poland will not be able to finance the announced barrier on the border with Belarus and the further protection of its part of the EU’s external border against the current immigration wave orchestrated by Belarus? After all, these illegal immigrants from the Middle East and Africa do not want to stay in Poland but want to go further to the west…
Generally speaking, there should be strong talks with the European Union on immigration issues. I would just put it that way.
What do you think about the idea of terminating Polish guarantees under the EU’s common debt to finance the Next Generation EU recovery fund and doing without it? Given that the EU has already broken the arrangements regulating the creation of this fund since the European Commission has far exceeded the deadline for approving the Polish plan, it is in breach of contract, and in theory, Poland could terminate its participation, couldn’t it?
I, for one, have been skeptical about this whole package from the outset and I do believe indeed that we should already be looking into the possibility of terminating it. You have to remember that this money is credit money, which we also take while acting as a guarantor for other countries, so no one does us any favors.
Don’t you think that the French elections next April give hope for a change in the balance of power in the EU?
There is, of course, that hope. A change of power in France, whether it be with Marine Le Pen, Éric Zemmour, or any other candidate, would certainly herald a change in the balance of power across the EU. All major French opposition candidates have supported Poland’s position on the primacy of national constitutions over EU law. That means they must have polls showing that a majority of French citizens also support it. This is a good sign, and it could indeed make a big difference if there was a change of power in France, and this in the context of a weakening of the German government after the departure of Angela Merkel.
How do you assess the idea of a meeting between Prime Minister Morawiecki and Marine Le Pen last Oct. 22? Until recently, such a meeting seemed impossible, and Donald Tusk said having such a meeting on the day of a European Council meeting was a diplomatic mistake.
I think that Poland should maintain as many different contacts as possible. It is not unusual to meet also with opposition leaders when meeting with the head of government of a major country. This is absolutely normal in politics.
Do you think that something positive will come out of the recent meeting in Paris between President Duda and President Macron?
Let’s hope something comes of it. We certainly have many common interests, but there must be French will. The French also have many problems of their own: with security, with immigration, with their drastically declining power vis-à-vis Germany, and they should look for allies, but those are their decisions.
And do you have hopes linked to the change of government in Berlin, with the SPD likely to take the leadership?
One can hardly be optimistic.
