By Jakub Majewski
The ECJ’s rejection of the complaints of Poland and Hungary against the so-called rule of law mechanism could be met dramatically, as some members of the governing coalition have done by talking about the end of the European Union as we know it. But you can also ask: What did you expect? In fact, these two points of view fit together perfectly.
Poland, together with Hungary, has rightly challenged the rule of law mechanism, which allows Member States to withdraw certain EU funds in the event of a breach of vague, undefined “principles of the rule of law”. This challenge was legitimate in two ways, if not threefold. First, the rule of law mechanism was not introduced by a treaty, but imposed from above by a regulation, the content of which did not follow from the previous treaties. Secondly, nowhere is it specified what exactly this rule of law is supposed to be, the principles of which, one would think, should be unanimous throughout the Union. Thirdly, this unanimity definitely does not exist, and what is seen on one side of the Rhine as a violation of the rule of law is accepted on the other hand as a decent, reasonable and, of course, legal tradition.
But what good is it that Poland was right to bring this action if the outcome was predictable? Since the rule of law mechanism was introduced primarily to punish Poland and Hungary for ignoring the ECJ’s rulings, it was obvious that complaining to the same ECJ could only be an empty and useless gesture.
Merit? What does that do!
There is no point in complaining about the merits of the case. Given the treaties that form the basis of EU law, the Polish complaint was, of course, entirely correct. However, in the light of these same treaties, including cases previously heard before the Court of Justice of the European Union, Poland was usually right, and the Court of Justice of the European Union was more of a general court of the European Union than a court of justice. And yet this Court has made decisions that were exactly as they were. Decisions that Poland ignored out of a sense of legitimacy, but in this way contributed to the growing crisis in the Union, just as the Union’s decision-makers decided that they could not afford another crisis after Brexit. So when it became clear that the EU treaties are of no use here because they are designed in such a way that no country can be punished without the absolute unanimity of the others, the decision-makers decided to circumvent their own treaties by introducing additional rules. Who can say no to a rich man?
The reader may be horrified by these words. Finally, what he writes could be understood as a suggestion that Poland perhaps should not even have carried out the reforms of the judicial system at its own discretion, but should have listened politely to the Union, which for years has tolerated and still wants to tolerate the absolute lawlessness of the Polish judicial system. But that is not the point, nor is it about the fact that the reforms of the judiciary that the current government has carried out are, in the opinion of this author, absolutely tragic. The point is that all this is simply irrelevant: it has long been unknown whose interests the European Union is supposed to serve.
In short, how many more times will our politicians complain about ‘dangerous precedents’, about ‘unjust judgments’, before they openly admit – because I have no doubt that they know and understand this very well – that this is what the Union is all about. That there should be two different unions in one – the old union of large and small European decision-makers and a new union of countries on the periphery, which form an economic basis for the rest? Of course, there are many people in Poland – probably even a majority – who are convinced that the Union is a just institution that currently punishes Poland only for absolutely real offences. But the current government probably does not come from this camp. After years of struggle with the EU bureaucracy, their expressions of surprise at the new failures sound not even strange, but simply pathetic.
In search of a rational policy
The politicians of the ruling party answer: Union yes, degeneration no. In other words, the Union itself is valuable, it only needs certain reforms. Such an attitude was reasonable before Poland’s accession, when Poland could try to impose conditions. Since then, calls for reform of the European Union have become increasingly naïve and senseless in the face of successive treaties, each of which has weakened the influence of the new Member States, and in the face of successive events that have tightened the noose of political control.
Today, one can simply say about proposals for the reform of the Union: they are as reasonable as if it had been said in the 1980s that the Soviet Union was actually a great idea, that it only had to be reformed a little in order to give the federal states more autonomy. Why postulate a reform of an organization that aims in a completely different direction with its whole essence and convictions? After all, it is about reform, and so it is. There has been a reform in the form of a new mechanism, approved today by the ECJ, which will allow Member States to be financially penalised for non-compliance with the rule of law. Whether we like it or not, this is a reform, and it is very, very far-reaching – just in the opposite direction to what we might want.
As things stand at present, there are two ways out of the European Union that can be considered reasonable. The first rational way, sad as it may sound, is the path of fidelity. Although this attitude may be described as anti-patriotic, it is rational, i.e. it has its own internal logic in recognising that Poland is to merge with the melting pot of the European Union and that the weakness of the Polish state is to be compensated by opportunities for personal social advancement through a change from the periphery to the centre of the Union.
The second rational way is to realize that since we see that membership of the European Union adversely undermines the sovereignty of the Polish state, we should draw up a profit and loss account and decide whether one or the other benefit of membership is more important to us or whether the losses are greater. And when the losses occur, what are we willing to do to stop them? However, the answer to the second question depends on the first. You have to start with the profit and loss account – and in the meantime you have to prevent further losses at the same time by simply scattering sand into the cogs of the EU machine.
Where Poland has a right of veto, it should use it. This could even be seen as a last, desperate attempt at reform – to say quite frankly that Poland will veto everything until this, that and that are changed. However, we should also consider the possibility that EU decision-makers, as in the case of the rule of law mechanism, will simply introduce a new, non-contractual decision-making method to circumvent the Polish veto – and this will lead to a further deterioration of Poland’s situation. So we’re going back to the income statement. We need to consider alternatives. The aim is to show the countries of the old Union that Poland sees the possibility of functioning outside this system.
One thing seems certain: unfortunately, we can already see today that the two terms of office of the governments of “Good Change” have caused very noticeable damage in connection with relations with EU structures. This is not only the fault of the Eurocrats, but also of the clumsy reactions and actions of Polish politicians, who have often sacrificed the possibility of long-term measures that could improve Poland’s negotiating position vis-à-vis the Union to a loud but symbolic and short-lived protest.
It is therefore good in its own way that the ECJ has rejected the Polish complaint. The fewer illusions there are in our politics, the greater the chance of becoming sober. Despite everything, Poland is still a sovereign state with considerable, if incomplete, autonomy. Poland, too, still has the potential for greatness – for breaking out of the doldrums through an effective policy of calm, not too conspicuous internal reforms. However, if things continue as before, and our politicians, who embark on the successive battles with Brussels, later express their ridiculous disbelief that it has gone back to business as usual, the time will come when historians will describe the present era as the second decline of the republic, after which our homeland, for the second time in its history, will voluntarily in its own Sejm of the dissolution of the State has agreed…
This article was first published by POLONIA CHRISTIANA, our partner in EUROPEAN MEDIA COOPERATION.