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European Commission President Ursula von der Leyen on FridayÂ vowed to unleash the full arsenal of treaty powers to force Poland to adhere to the EUâ€™s legal order. But her tough talk seemed merely cover while Brussels once again confronts the legal and political obstacles to compelling rebel member countries to respect the rule of law.
Von der Leyenâ€™s saber-rattling came after a bombshell decision by Polandâ€™s Constitutional Tribunal thatÂ the countryâ€™s constitution takes precedence over some EU laws. The move was the latest â€” and most provocative â€” development in a long-running battle over rule-of-law standards between the Commission and Polandâ€™s conservative government.
European institutions have faced criticism for failing to effectively address democratic backsliding in Poland and Hungary, and the controversial court decision immediately amped up pressure on von der Leyen and her team to back up their rhetoricÂ with tough action.
The Polish ruling â€œundermines the cornerstones of the EU,â€ Finnish Minister for European Affairs Tytti Tuppurainen told POLITICO, noting that â€œeyes are now on the European Commission as guardian of the EU Treaties.â€Â
Irish Minister for European Affairs Thomas Byrne, meanwhile, said in a phone interview that â€œEU institutions at every level must take a very hard line on this.â€ And French European Affairs Minister ClÃ©ment Beaune went as far asÂ callingÂ the courtâ€™s move an â€œattack on the European Union.â€
The Commission now has several options: triggering a new mechanism that links EU funding to rule-of-law criteria; continuing to hold up approval of Polandâ€™s plan for EU pandemic recovery funding; and launching legal proceedings against Poland â€” or a combination of these moves.Â
But much depends on von der Leyenâ€™s political calculations, and how Warsaw chooses to play its cards. The CommissionÂ presidentÂ has wagered her political legacy on implementing the blocâ€™s recovery plan and making the European Green Deal a reality â€” two goals that require Polandâ€™s cooperation to fully succeed.Â And she has thus far stalled on using the rule-of-law mechanism.Â
But von der Leyen has also pledged to defend democratic norms, and she is now under significant pressure from the European Parliament and some member countries â€” particularly net contributors to the EU budget â€” to make good on her rhetoric.
â€œI am deeply concerned by yesterdayâ€™s ruling of the Polish Constitutional Tribunal,â€ the Commission chief said in a statement on Friday, noting that she has â€œinstructed the Commissionâ€™s services to analyse it thoroughly and swiftlyâ€ and that â€œon this basis, we will decide on next steps.â€
â€œAll rulings by the European Court of Justice are binding on all Member Statesâ€™ authorities, including national courts. EU law has primacy over national law, including constitutional provisions,â€ von der Leyen said, adding: â€œWe will use all the powers that we have under the Treaties to ensure this.â€
The Polish ruling will only come into effect if published in the countryâ€™s official journal, and the Commission is still waiting to analyze a written explanation from the court before making a decision on whether to launch an infringement proceeding.Â
At the Commissionâ€™s Berlaymont HQ, there is a sense that there is still some room for maneuver to de-escalate tensions with Warsaw.Â
â€œThe ball is still largely in the Polish governmentâ€™s court,â€ said one Commission official.Â
Polish politicians, meanwhile, were quick to push backÂ against criticism of the ruling.Â
Polandâ€™s place â€œis and will be in the European family of nations,â€ Prime Minister Mateusz Morawiecki said in aÂ Facebook statement.Â â€œWe want a community of respect and not an association of equal and more equal. Itâ€™s also our community, our Union. This is the Union we want and this is the Union we will continue to create.â€
â€œI am very upset about the reaction of the European elite,â€ said Ryszard Legutko, who leads the ruling Law and Justice (PiS) partyâ€™s delegation in the European Parliament.Â
â€œThere is no country that says that the EU has competence everywhere,â€ he told POLITICO, adding: â€œIt is not a legal dispute, this is a way to humiliate Poland in order to grab more power.â€Â
Nevertheless, calls are growing for the Commission to put concrete pressure on Poland, including by imposing financial sanctions.Â MEPs are expected to debate and vote on a resolution on the issue during the next European Parliament plenary session, which starts on October 18. Â Â
Iratxe GarcÃa, leader of the Socialists and Democrats group in the Parliament, said in a statement Friday thatÂ â€œafter yesterdayâ€™s ruling by the PiS-controlled Tribunal questioning the primacy of the EU law, we are more worried than ever about the path taken by the PiS government.â€
â€œWe call on the European Commission to immediately trigger the new rule of law conditionality mechanism and to open infringement proceedings against Poland for breaching the Treaty,â€ she said.
For some MEPs, the time for legal debates is over.Â
â€œThe Polish government is closing the legal conversation, itâ€™s not possible to have legal proceedings if the other side says: we donâ€™t recognize EU law,â€ said German Green MEP Sergey Lagodinsky.Â
â€œWe will continue pressuring the Commission to launch the rule of law mechanism,â€ he said.Â â€œThere are two steps â€” itâ€™s conditionality and no recovery money should be transferred.â€
Recovery fund limbo
While the Berlaymont has declined to say whether the ruling will impact talks over Polandâ€™s coronavirus recovery plan, officials in both Brussels and Warsaw have privately acknowledged that the court ruling is likely to affect negotiations.
â€œIt seems quite obvious that the Commission will not be able to give a positive assessment of the Polish plan next week and kick the ball to the Council,â€ said one EU diplomat. â€œIt will have to wait.â€
A senior Polish official also said there is an expectation that the courtâ€™s ruling will impact the process â€” but cautioned that depriving Poland of its recovery funding would have consequences for the EUâ€™s reputation among ordinary Poles.Â
â€œThe feeling is that the European Commission has targeted Poland and is applying different rules for Poland. The government in Poland has been elected democratically so will listen to the will of the people not bureaucrats in Brussels,â€ the official said.Â
â€œThe Polish economy is rebounding well so funds from the EU are not critical and can be replaced by funds from capital markets,â€ the official asserted, adding however that â€œif this happens, a very serious rift between Brussels and Warsaw will occur. And public opinion may not be on the side of Brussels.â€Â
Legutko also criticized the notion that the court ruling could further delay approval of recovery funds.Â
Â â€œThis is complete lawlessness,â€ he said. â€œIf they decided to block the recovery, certainly the Polish government will not back down because of money.â€
As tensions deepen, some officials have cautioned that the dispute could have far-ranging implications.Â Â
â€œPoland â€” Polish manufacturing industries â€” is a vital part of the European economy. And vice versa: the European common market is a necessity for Poland,â€ Finlandâ€™s Tuppurainen said.
â€œPoland needs Europe for her own security. And the EU needs Poland. Especially around the Baltic Sea, Poland is needed for the balance and security of the area,â€ she noted, adding: â€œA solution is in the interests of everybody.â€Â Â
Luxembourgâ€™s Foreign Minister Jean Asselborn went even further.Â
â€œThis government in Poland is playing with fire,â€ he said in a statement on Friday.Â â€œAt a certain moment, not only legally but also politically, this can come to a breaking point.â€
Hans von der Burchard, David M. Herszenhorn, Paola Tamma and Zosia Wanat contributed reporting