The Polish Dilemma

With the unfolding of events in Poland, the Union is heading towards yet another crisis. Unfortunately the EU is getting used to live in a state of constant emergency, but the Polish crisis, if we can call it a “crisis” at this early stage, is very different from all the rest.

The economic crisis has transformed the ECB, turning it into a key Institutions of European integration. The refugee crisis is about to transform the Commission’s role in the handling of immigration policy and frontier control. The Polish crisis could also change the Commission and the role of the European Council in Article 7 TEU scenarios, but, above all, it will probably affect the Court of Justice the most.

The Polish case is a crisis of the rule of law. Something similar has been taking place in Hungary and, to a lesser extent, Romania. But having a “Hungarian scenario” in the Union’s sixth largest country, a role-model country among the new Member States, is enough to set all the alarms. If Poland is to fall under the spell of the politics of fear and populism, it is easy to envisage other Member States following the same path. The rise of the Front National in France and its success in the past regional elections is only a hint of what could follow. Populist parties are proving to be extraordinarily efficient in dismantling the institutions of the State for their own benefit once they reach government. The first victims are usually the guardians of the Constitution: Constitutional Courts. The media go next. From that point onwards, the domino effect does the rest.

The Polish case is therefore about the rule of law, because the means deployed by the sitting government are exactly the same ones we have seen in the past: a full-front attack against the guardian of the Constitution (packing it or blocking it) and a seizure of independent public media for the purpose of keeping the message in focus. Therefore, because the Polish case is about the rule of law, it raises serious issues about the values enshrined in the Treaties. These values are not a frivolous manifesto. On the contrary, they are stained by blood and a deadly history of war, genocide and abuse in the European continent.

The Court of Justice has no jurisdiction to rule on the substance of an application under article 7 TEU. If the Commission or the European Council ever come to the point of implementing the cumbersome procedure established in article 7 TEU, Poland would not be able to challenge the final decision on substantive grounds due to article 269 TFEU, which limits all means of judicial review to procedural issues.

However, it is precisely on the grounds of procedure where the battle might have to be fought. In that case, the Court of Justice will become a key player in the Polish crisis.

If the Commission launches its Rule of Law mechanism, as it appears portrayed in the 2014 Commission Communication, Poland could easily question the Commission’s competence to start a procedure that is nowhere to be found under the current provisions of EU Law. And if the Commission finally decides to formally launch Article 7 TEU proceedings, the final determination of the European Council will demand a unanimous vote which, almost certainly, Hungary will veto. There are ways to sort out this obstacle, as recently explained by Kim Lane Sheppele in Politico, but they will surely be challenged by Hungary or any other Member State sidelined in the European Council. And even if there is a unanimous vote, there are always tricky and ambiguous cases with no clear line between procedure and substance that could be brought by Poland that only the Court of Justice can solve.

Either way, it is undeniable that Article 7 TEU is a very poor piece of law, probably drafted with the prospect of never having to use it. But now that the time is ripe for making good use of the tool, the Court of Justice will have to face difficult choices.

The Court of Justice will first have to decide whether to make a broad or a strict interpretation of the term “procedural stipulations”, as it appears in Article 269 TFEU. The scope of this term determines the scope of the Court’s jurisdiction, but past case-law shows how generous has the Court of Justice been with itself when interpreting provisions of the kind. However, if the Court decides to do a strict interpretation and puts itself in the sidelines, the message will be clear: rule of law issues in Member States are for the European Council to deal with, not for me.

However, if the Court of Justice embraces a broad interpretation (as it is to be expected), then it must assume that it has become a guardian, or a co-guardian (together with the European Council), of the rule of law in a Member State. In other words, the Court will become a crucial actor in safeguarding the constitutional values of a Member State.

In fact, the result of neutralizing a Constitutional Court is that the national Constitution has lost its guardian. In the absence of such guardian, the Union is called to intervene. Therefore the Union, through the European Council and the Court of Justice, indirectly becomes the guarantor of the national Constitution.

This outcome would be revealing of the kind of constitutional creature the Union can turn into. The Constitution of a Member State must make some adjustments to ensure its fit under EU Law, but this also comes with considerable benefits: in case of system failure of the domestic instruments guaranteeing the integrity of the Constitution, EU Law provides extra help. Therefore, the traditional relationship between the Court of Justice and Constitutional Courts does not only serve the effectiveness of EU Law, but it can also be built on the assurance of mutual assistance in case of system failure.

And this brings me to a final point: if the relationship between the Court of Justice and Constitutional Courts is not only a question of cooperation, but also one of active assistance in times of system failure, doesn’t this change the nature of the relationship between these courts? After all, having an operative and well-functioning Constitution in a Member State is also in the interest of the Union and, more particularly, of the Court of Justice. EU Law relies heavily on the existence of national courts governed by the rule of law. In fact, Article 19 TEU insists on the importance of national remedies in the EU’s judicial architecture. How is a Member State to guarantee “effective remedies” in its judiciary if its judicial umpire, the Constitutional Court, is undermined and dismembered?

The Polish scenario could drive the Court of Justice to play a new and important role in the European judicial architecture: to become the final sentinel of the rule of law in Europe, particularly when the national sentinel (the Constitutional Court) has been pushed aside by the forces of fear and populism. The Court of Justice could uphold the Commission’s imaginative efforts to exert pressure over the recalcitrant Member State, or it could support the European Council’s decisions avoiding the veto of other Member States with dubious plans ahead. The Court of Justice could even step with care into the terrain of substance and state what the rule of law is under Article 2 TEU, so that all Member States take note.

But the Court of Justice could play exactly the opposite role and get scared: scared of being accused of activism, scared of empowering the Commission too much, scared of setting a dangerous precedent, scared of being declared ultra vires. The politics of fear could also succeed in the Luxembourg court.

The Polish crisis could thus turn into the Polish dilemma: the Court could feel intimidated by the size of the challenge and decide to step back by using Article 269 TFEU as an excuse to divert the burden towards the European Council, where compromise and appeasement is to be expected; or it could become the guarantor of national Constitutions when the domestic guardian comes under attack. The first option, betting on an appeasement strategy, could have terrible consequences for Europe if it finally results in the triumph of populism and the politics of fear. The second one, the activist approach, would certainly entail many risks, but the rule of law would prevail and national Constitutional Courts would realize that the Luxembourg court, in times of crisis, is ready to stand by their side. The dilemma would be unprecedented in the history of the Court of Justice, but these are exactly the decisions that change the face of history (and of institutions too).

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