Polish ruling puts Ursula von der Leyen under pressure

European Commission President Ursula von der Leyen on Friday vowed to unleash the full arsenal of treaty powers to force Poland to adhere to the EU’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 Leyen’s saber-rattling came after a bombshell decision by Poland’s Constitutional Tribunal that the country’s constitution takes precedence over some EU laws. The move was the latest — and most provocative — development in a long-running battle over rule-of-law standards between the Commission and Poland’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 rhetoric with tough action.

The Polish ruling “undermines the cornerstones of the EU,” Finnish Minister for European Affairs Tytti Tuppurainen told POLITICO, noting that “eyes are now on the European Commission as guardian of the EU Treaties.” 

Irish Minister for European Affairs Thomas Byrne, meanwhile, said in a phone interview that “EU institutions at every level must take a very hard line on this.” And French European Affairs Minister Clément Beaune went as far as calling the court’s move an “attack on the European Union.”

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 Poland’s plan for EU pandemic recovery funding; and launching legal proceedings against Poland — or a combination of these moves. 

But much depends on von der Leyen’s political calculations, and how Warsaw chooses to play its cards. The Commission president has wagered her political legacy on implementing the bloc’s recovery plan and making the European Green Deal a reality — two goals that require Poland’s cooperation to fully succeed. And she has thus far stalled on using the rule-of-law mechanism. 

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 — particularly net contributors to the EU budget — to make good on her rhetoric.

“I am deeply concerned by yesterday’s ruling of the Polish Constitutional Tribunal,” the Commission chief said in a statement on Friday, noting that she has “instructed the Commission’s services to analyse it thoroughly and swiftly” and that “on this basis, we will decide on next steps.”

“All rulings by the European Court of Justice are binding on all Member States’ authorities, including national courts. EU law has primacy over national law, including constitutional provisions,” von der Leyen said, adding: “We will use all the powers that we have under the Treaties to ensure this.”

The Polish ruling will only come into effect if published in the country’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. 

At the Commission’s Berlaymont HQ, there is a sense that there is still some room for maneuver to de-escalate tensions with Warsaw. 

“The ball is still largely in the Polish government’s court,” said one Commission official. 

Polish politicians, meanwhile, were quick to push back against criticism of the ruling. 

Poland’s place “is and will be in the European family of nations,” Prime Minister Mateusz Morawiecki said in a Facebook statement. “We want a community of respect and not an association of equal and more equal. It’s also our community, our Union. This is the Union we want and this is the Union we will continue to create.”

“I am very upset about the reaction of the European elite,” said Ryszard Legutko, who leads the ruling Law and Justice (PiS) party’s delegation in the European Parliament. 

“There is no country that says that the EU has competence everywhere,” he told POLITICO, adding: “It is not a legal dispute, this is a way to humiliate Poland in order to grab more power.” 

Nevertheless, calls are growing for the Commission to put concrete pressure on Poland, including by imposing financial sanctions. 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.   

Iratxe García, leader of the Socialists and Democrats group in the Parliament, said in a statement Friday that “after yesterday’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.”

“We 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,” she said.

For some MEPs, the time for legal debates is over. 

“The Polish government is closing the legal conversation, it’s not possible to have legal proceedings if the other side says: we don’t recognize EU law,” said German Green MEP Sergey Lagodinsky. 

“We will continue pressuring the Commission to launch the rule of law mechanism,” he said. “There are two steps — it’s conditionality and no recovery money should be transferred.”

Recovery fund limbo

While the Berlaymont has declined to say whether the ruling will impact talks over Poland’s coronavirus recovery plan, officials in both Brussels and Warsaw have privately acknowledged that the court ruling is likely to affect negotiations.

“It 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,” said one EU diplomat. “It will have to wait.”

A senior Polish official also said there is an expectation that the court’s ruling will impact the process — but cautioned that depriving Poland of its recovery funding would have consequences for the EU’s reputation among ordinary Poles. 

“The 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,” the official said. 

“The Polish economy is rebounding well so funds from the EU are not critical and can be replaced by funds from capital markets,” the official asserted, adding however that “if this happens, a very serious rift between Brussels and Warsaw will occur. And public opinion may not be on the side of Brussels.” 

Legutko also criticized the notion that the court ruling could further delay approval of recovery funds. 

 “This is complete lawlessness,” he said. “If they decided to block the recovery, certainly the Polish government will not back down because of money.”

As tensions deepen, some officials have cautioned that the dispute could have far-ranging implications.  

“Poland — Polish manufacturing industries — is a vital part of the European economy. And vice versa: the European common market is a necessity for Poland,” Finland’s Tuppurainen said.

“Poland 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,” she noted, adding: “A solution is in the interests of everybody.”  

Luxembourg’s Foreign Minister Jean Asselborn went even further. 

“This government in Poland is playing with fire,” he said in a statement on Friday. “At a certain moment, not only legally but also politically, this can come to a breaking point.”

Hans von der Burchard, David M. Herszenhorn, Paola Tamma and Zosia Wanat contributed reporting