A(nother) lost opportunity?

The October meeting of the European Council (EUCO) was its first occasion to react to the declaration by the Polish “Constitutional Tribunal” (“Trybunał Konstytucyjny” – TK), that several provisions of the Treaty on European Union (Articles 1, 2, 4(3) and 19) are incompatible with Poland’s Constitution and consequently inapplicable to the country.

The express denunciation of fundamental provisions of EU primary law by one of its members (with the support of another), while insisting on his country remaining part of the Union, is a situation the EUCO could hardly overlook.

And yet, not a word about the unfolding constitutional crisis was included in the EUCO Conclusions. Apart from individual statements (e.g. here), only a few remarks by the President were made public:

“The discussion, which took place in a calm atmosphere, helped us to establish that we are all convinced that the rule of law and the independence of the judiciary are fundamental principles, and to recognise that we have at our disposal legal and institutional instruments that have either been activated or can be activated. We also considered that political dialogue was necessary and that it should continue with the aim of finding solutions and making progress on this vital issue.”

The EUCO itself remained silent. Various elements may explain the restraint. However, the complete muteness from the EU crisis-manager-in-chief is more questionable and may carry a disquieting message.

Limits of the EUCO mandate

It was clearly premature for the EUCO to consider the compatibility of the TK decision with the requirements of EU law. Such an assessment is the responsibility of the Commission, as guardian of the Treaties, and the Court of Justice, whose mandate is to “ensure that in the interpretation and application of the Treaties the law is observed”.  Admittedly, the EUCO is empowered to establish a Member State’s breach of the fundamental requirements of membership, namely respect for the values of Article 2 TEU. However, that presupposes that the EUCO is seized of the matter, on the basis on Article 7(2) TEU (see further below).

Moreover, the EUCO (rightly) resisted being drawn into a broader discussion about the interpretation of EU Treaties. The Prime Minister of Poland sent a letter prior to the meeting, in which he painted an alternative reading of (key elements of) EU primary law, and of the core obligations of EU membership. The hope may have been that a discussion would generate some understanding among other Heads of State or Government, for his apparent crusade against the “competence creep”. His view is that the EUCO holds a quasi-EU-primary-law-making function. At an earlier EUCO meeting he declared that, “[t]he [EUCO] conclusions are a permanent act of the (sic) European law … close to primary law … close to the treaty”. On this view, the EUCO may clarify and reformulate EU norms, as well as Member States’ obligations and EU institutions’ role. That understanding was partly proven right at the EUCO meeting of December 2020, at which he (together with his Hungarian colleague) pushed his counterparts to intervene in the EU legislative process that led to the adoption of the General Conditionality Mechanism, and to interfere with other EU institutions’ mandate (see further below).

Undeniably, the EUCO has an important role in articulating the terms of EU membership: It may refine the conditions of eligibility in relation to candidate states (Article 49 TEU), and recall Member States’ privileges and protect their exclusivity in dealing with a withdrawing state (Article 50 TEU). But it does not have the power to reformulate the Treaty-based terms of Member States’ membership in the EU. Admittedly, the (then) UK Prime Minister managed, in 2015, to engage his peers in a renegotiation of his country’s EU membership. Yet, the process was formally handled by the Heads of States or Government meeting in the European Council, not by the EUCO itself. Even if it has been disputed, the exercise and its outcome were to be “in conformity with the Treaties”. While the New Settlement for the UK within the Union foresaw that the UK as Member State was “not committed to further political integration into the [EU]”, and that “references to ever closer union [did] not apply to the [UK]”, the document did not permit the country to negate core membership obligations, such as those deriving from Articles 2, 4(3) and 19 TEU.

As EU institution, the EUCO operates within the framework of the Treaties; it can only act within the limits of its powers (Article 13(2) TEU). Any change in Member States’ fundamental obligations, of the kind the TK decision points to, would have to be negotiated and agreed by an inter-governmental conference based on Article 48 TEU, and approved by all Member States in accordance with their constitutional requirements.

Crippled leadership

Although not written in the Conclusions, the EUCO did take a stance, if only by default. It held on to the conciliatory approach it has hitherto embraced in attempting to assuage its enfants terribles, even if it may have contributed to the current predicament. That approach culminated in December 2020, with the adoption of a contentious (see here, here) compromise on the General Conditionality Mechanism which in effect rewarded obstructionist behaviour within the EUCO, while disrupting the EU system of checks and balances. Not only did it hijack an on-going EU decision making process, it also pressured the Commission, and instrumentalised the European Court of Justice, to delay the activation of the conditionality mechanism. The President of the European Commission confirmed after the EUCO discussion of 21 October that her institution would wait until the Court of Justice’s verdict on the legality of the Conditionality Regulation before activating it fully, as instructed by the December 2020 compromise.

Rather than adjusting its approach to the escalating crisis, the EUCO has in effect stuck to it: hoping for more dialogue, while still hindering the use of (some of the) available EU mechanisms. Despite – or perhaps because of – the Member States’ disagreement regarding the foundations and functioning of the EU legal order, the EUCO is unable to change its course, because there is (obviously) no consensus to do so. It appears incapable of recalling the fundamentals of EU law and EU membership, as set out in the Treaties and ratified by all Member States. The inability to agree on a common reassuring language, suggests that the EUCO political leadership is becoming paralysed as the constitutional crisis intensifies.

This paralysis cripples the Union, internally and externally. The inability to express clearly a common understanding of the EU when needed, means that any discourse on strategic autonomy will sound hollow. The same holds true for policy initiatives discussed at the same EUCO meeting of October. In sum, the EUCO is being incapacitated in delivering on its own mandate: viz. to “provide the Union with the necessary impetus for its development and […] define the general political directions and priorities thereof” (Article 15 TEU), and “to promote the [EU] values, advance its objectives, serve its interests, those of its citizens and those of the Member States” (Article 13(1) TEU).

Danger of decentralised, uncoordinated (legal) disintegration

The EUCO’s silence may also provoke uncertainty as to the validity of “the fundamental premiss that Member States share a set of common values on which the European Union is founded”, and which in the words of the Court of Justice underpins “mutual trust between the Member States, and in particular their courts and tribunals”. This could have repercussions across the EU legal order, particularly within Member States’ courts.

Executing decisions enacted by the captured and dysfunctional Polish judicial system has become challenging for other Member States’ courts. To avoid their own independence and impartiality being tainted by the lack of it in the Polish judicial system, to preserve their trustworthiness domestically, but also to protect human rights, national judges will question, if not to stop observing, the EU requirement of mutual recognition in relation to decisions taken by Poland’s judges.

National judiciaries may thus actively use the restricted exception to the requirement of mutual recognition (as here, here) which the ECJ has hesitantly acknowledged in LM/Celmer  – and confirmed since in L&P. They may also ask the Court to re-examine that case law considering the deteriorating constitutional situation in Poland, as the Irish Supreme Court (which applied the initial LM test to Celmer as recalled here) did. The decision not to execute a decision from a Polish court was recently taken by a court in Norway which, although not an EU Member State, nevertheless has a “special relationship” with the EU, involving in particular its participation in the European Arrest Warrant system, through the  surrender procedure agreement. The judge considered that surrender in this case would conflict with Article 6 of the ECHR. Some national courts may follow suit and consider ignoring the LM test altogether, thus suspending in relation to Poland the operation of EU law instruments involving mutual recognition.

The Polish authorities’ disregard of fundamental requirements of EU membership has a potential dramatic knock-on effect. Paradoxically, the disruptions to the EU legal order that such disregard entails may in turn trigger, and be relayed by, decisions of other Member States’ courts (and administrations), which may ultimately sanction the breakdown of trust (already apparent here) in the Union, further weaken the authority of the Court of Justice, and catalyse erosion of the EU core principles. It is critical that EU institutions and Member States (re)act, resolutely to prevent such a decentralised and dispersed exclusion of Poland’s legal system from that of the EU, and the consequent fragmentation of the EU legal order.

Taking back control: Article 7(2) TEU

Member States cannot simply pass the buck to the Commission and the Court, and expect them alone to tackle the constitutional crisis, especially when otherwise interfering with their ability to act. Like the European Parliament, they too must fulfil their mandate under the EU Treaties, and defend the EU constitutional order, – the way they successfully managed in the context of Brexit.

For now, the EUCO, as consensus-based institution, is partly incapacitated. Its involvement tends to be counter-productive, even when it remains completely silent.  The way for it to regain relevance and effect leadership in protecting the EU from further deterioration is for Article 7(2) TEU to be triggered. This can be done by one third of the Member States or by the Commission. That would give EUCO the decisive role in establishing whether the Polish Government is in serious and persistent breach of the fundamental membership requirements, namely respect for the values of Article 2 TEU, and in taking measures to prevent a chaotic disintegration from below.

Article 7(2) TEU is often characterised as a hopeless endeavour, given the taxing requirements for a decision to be made. The suspension procedure, read in the light of Article 354 TFEU, foresees that agreeing on an assessment of the situation presupposes unanimity minus one. Article 354 TFEU also suggests that the decision can be reached in the EUCO even if some members abstain. Abstaining to defend the EU constitutional order, and Polish membership thereof, from further deterioration does not seem as unpalatable as it may sound.

In the meantime, the EUCO should at least refrain from meddling with the EU institutions’ ability to engage, especially when calling on them to do just that. The European Council needs to defend the institutions’ trustworthiness, not diminish it.