Poland Must Block Climate Package

By Olivier Bault for the Visegrad Post

Interview with Polish MEP Jacek Saryusz-Wolski. Jacek Saryusz-Wolski was once a leading figure in the Civic Platform (PO) and one of the main negotiators of Poland’s accession to the European Union. Disgusted by the way his liberal colleagues sought to push through sanctions against Poland in Brussels after their 2015 election defeat, he then distanced himself from the PO and moved closer to the PiS conservatives, with whom he now sits in the European Conservatives and Reformists (ECR) group.

This economist and expert on EU issues was the Polish government’s representative for European integration issues in 1991–96, and then secretary of the Committee for European Integration, responsible for coordinating and planning Poland’s integration into the EU, in 2000–01. Between 2006 and 2010 he was vice-chair of the PO, which was then led by Donald Tusk. In the European Parliament, of which he has been a member since 2004, Jacek Saryusz-Wolski was Chairman of the Foreign Affairs Committee from 2007 to 2009, and Vice-President of the European People’s Party (EPP) from 2006 to 2017. In 2017, he was proposed by the government of Beata Szydło (PiS) to replace Donald Tusk as President of the European Council.

The Visegrád Post interviewed him in 2018 on the occasion of the centenary of Poland’s regained independence. Olivier Bault interviewed him again by phone on 29 October about the conflict between Brussels and Warsaw.

Olivier Bault: On 24 October, Polish Prime Minister Mateusz Morawiecki warned in the Financial Times that if the European Commission did not withdraw its demands for daily fines submitted to the ECJ over Polish justice reforms, it would be “war”. Three days later, the ECJ imposed on Poland a penalty payment of one million euros per day until the Disciplinary Chamber of its Supreme Court was suspended. This is a case where the Polish Constitutional Court ruled in July that the ECJ had no jurisdiction. So do we actually have a war?

 Jacek Saryusz-Wolski: Of course, this was a metaphor, and the Prime Minister was actually referring to the blocking of the national recovery plan submitted under Next Generation EU. This metaphor of the Third World War was intended to draw attention to the seriousness of the situation, to alert people to the fact that the European Commission, by acting in this way against Poland, is breaking all the rules. The Commission’s actions go way too far, and I believe that this policy is double-edged and can harm both sides.

Olivier Bault: But what can Poland do in this situation? There is this penalty payment of one million per day that will have to be paid, otherwise the Commission will deduct that sum from the funds paid to Poland anyway.

Jacek Saryusz-Wolski: First of all, the amount of the penalty payment must be put into perspective; money is not really the most important thing in this situation. It is undeniable that for an individual a million euros a day is a huge sum, but on a national scale the same amount is negligible. For example, Poland spends almost as much per day on the camps for illegal migrants sent by Belarus. If we add to that the defence of the border against the Russian–Belarusian hybrid war, we are spending a lot more, and this without any European aid, and without calling for European solidarity.

What really matters here is that the Commission and the Court of Justice are acting outside the powers provided for in the Treaties. This is a violation of the rules by the Commission, on the pretext of defending the rule of law.

But Poland now has a constitutional shield. Poland has actually had that shield since the Constitutional Tribunal rulings in 2005, 2010 and 2011, and those rulings were delivered at a time when our constitutional court was mostly composed of judges appointed by the opposite camp, namely the Civic Platform party, PO.

The rulings of 14 July and 7 October this year state that acts of the European Commission or the ECJ outside the EU’s competence, i.e. ultra vires, are null and void.

So there is this constitutional shield, similar to the one requested by former EU commissioner and Brexit negotiator Michel Barnier for France, which makes these acts invalid on Polish territory. Therefore, even if the government wished to back down and submit to the diktat of the European Commission and the ECJ, it could not, as this would automatically violate the Polish Constitution, which is the supreme law.

Olivier Bault: That is true, but the Polish Government can always pass a new law, as was announced in August with regard to the abolition of the disciplinary chamber of the Supreme Court. This is not prohibited by the Polish constitution.

Jacek Saryusz-Wolski: As we have seen, backing down only encourages bold demands. Note that today it is no longer a question of suspension but of dissolution, and that the problem is no longer only the Disciplinary Chamber but the entire Supreme Court, of which it is a part. We are asked to reinstate judges who have been the subject of disciplinary proceedings, and so on. These are endless demands because at the end of the day it is not about the rule of law or justice. It is, in fact, about changing the Polish political system, as an experiment, to create a European federal state. Poland was specifically selected for this experiment. If it does not resist, the same method will be applied to the other recalcitrants, even though a majority of them are unaware of that.

Thus, backing down will not lead to anything. All efforts to resolve the disputes amicably have proved futile, as the aim is actually to bring Poland to its knees and thus create a precedent showing that the EU has competence in the field of justice, which is contrary to the letter of the Treaties.

Therefore, because of this logic and the legal argument, Poland has no room to back down and cannot submit to this diktat. The Commission will send a financial note to serve this penalty payment, which Poland will refuse to pay. The Commission will then deduct the sums from the EU funds intended for Poland, which in turn will deduct these sums from its contribution to the EU budget. So it will be a vicious circle.

Olivier Bault: In addition to this penalty payment of one million euros per day, there is the Next Generation EU recovery package, with billions not being paid to Poland…

Jacek Saryusz-Wolski: In the case of the conditionality mechanism, which is still before the ECJ and whose purpose would be to link the disbursement of funds to respect for the so-called rule of law, it violates the Treaties, but there is a legal basis, albeit a false one. The blocking of Next Generation EU funds goes even further than that, since this time there is no legal basis at all. This is pure political voluntarism, a posture openly adopted by Commissioner Gentiloni, Commissioner Reynders, and President von der Leyen. They are blatantly violating their own rules regarding the recovery package. If the Commission keeps withholding those funds, we can borrow the same money on more advantageous financial terms on the financial markets, and without political conditions, because we have a higher financial credibility than the EU average.

Olivier Bault: However, the EU recovery package includes not only loans, but also non-refundable grants.

Jacek Saryusz-Wolski: The part called “subsidies”, or “grants”, will actually have to be repaid by an increased contribution to the budget. So both parts of the recovery package will have to be repaid, not just what is to be repaid directly under the loans. What differs is the time frame and the repayment mechanism.

Olivier Bault: Are you calling on your country to simply withdraw from the Next Generation EU recovery package?

Jacek Saryusz-Wolski: First, we can get the money elsewhere, as has been said by Prime Minister Morawiecki and by the president of our central bank, Adam Glapiński. The Polish budget is in excellent shape, the economy is doing very well, and finding funding elsewhere will not be a problem.

Secondly, Poland could take the European Commission to the Court of Justice for this blocking of funds, for this violation of its own rules, for its action against the rule of law, since the Commission should be paying us these funds and is not doing so. We are therefore covered both financially and legally. Poland could also take the Commission to the ECJ because by treating member states differently, the Commission is violating the principle of equal treatment of states and companies within the Internal Market. Its actions favour those who have received the funds and disadvantage those who have not, and this constitutes a serious violation of the rules of the Internal Market.

Thirdly, it is a rule of international law, and in particular Article 60 of the Vienna Convention, that if a party to an agreement does not fulfil its obligations, the other party may withdraw from the agreement. Poland, by voting for the recovery package, has provided guarantees. It could now withdraw its guarantees for loans contracted by the European Commission on behalf of the member states.

Fourthly, having not received the necessary funds for the energy transition, Poland should veto the Fit for 55 climate package.

These are, in short, the four points on which the Polish Government could base its argument.

Olivier Bault: There is still the new conditionality mechanism that will soon come into effect. No one doubts that the ECJ will approve it, given its record of judgments pushing the EU towards ever greater federalism. We know that the European Commission understands the concepts of the rule of law and European values in a rather political and ideological way. One can safely predict that it will soon implement this mechanism against Poland and Hungary. What will Poland be able to do in the face of this mechanism, which the Polish prime minister would have been well advised to block at the July 2020 European Council and then at the December 2020 Council, by maintaining his veto on the budget and the recovery package?

Jacek Saryusz-Wolski: This mechanism is, indeed, currently before the ECJ, since its principle has been challenged by Poland and Hungary. These two countries consider that the conditionality mechanism runs counter to the Treaties because it bypasses Article 7, which alone defines the procedure to be followed to ensure member states abide by the values enshrined in Article 2, including the rule of law. It must be stressed that even the Council’s legal services have confirmed with great force that the conditionality mechanism is contrary to the letter and spirit of the Treaties. However, this opinion, which was issued at the request of the Council, was expressly kept secret until last year and was rejected by the ECJ during its deliberations on the mechanism. Moreover, if this mechanism were to be used for matters concerning the Polish judicial system, this would clearly fall outside the competence of the EU, as results from Articles 4 and 5 of the Treaty on European Union.

The ECJ should declare this regulation on the conditionality mechanism null and void under the European Treaties. But will it do so? I greatly doubt it, because the ECJ is politicised and politically influenced, and it adheres to a centralist and federalist oligarchic political logic.

However, even if the ECJ validates the conditionality mechanism, Poland will be protected by its constitutional shield. It will be able to say that this regulation, which makes funds conditional on the rule of law, is of no legal effect on Polish territory. We are therefore entering a vicious circle. In the meantime, the number of constitutional courts saying the same thing as the Polish court is increasing significantly, starting with the German court, the French Conseil d’État, and so on. In total, the constitutional courts of ten member countries have already ruled the same as the Polish Constitutional Tribunal. Poland is therefore building on a solid foundation.

There is a political war and an information war. All the accusations against Poland are based on fake news, because neither democracy nor the rule of law are in danger in Poland. It is just a battleground chosen to change the political system of the European Union by circumventing the Treaties, because we cannot change them, and to attack conservative governments or even overthrow them.

Olivier Bault: In this situation of escalating conflict, should we expect frequent vetoes by Poland in the European Council, when decisions have to be taken unanimously?

Jacek Saryusz-Wolski: On two occasions last year, Poland showed maximum goodwill, and even more than that. The first time was when it refrained from using its perfectly legitimate right of veto in July 2020, and the second time in December when the multiannual budget and the Next Generation EU recovery package were voted on. It was then promised that the use of the conditionality mechanism would be reserved for cases of fraud involving EU funds only and that this mechanism would not have the aspect desired by the European liberal left and by the European institutions, which would make it a tool, a weapon, to punish countries that do not obey, that is to say that make conservative political choices.

We erred on the side of naivety in believing that the December political declaration would commit all parties. Political leaders like Merkel and Macron, acting in bad faith and through their agents in the European Parliament – Séjourné, Weber, etc., not to mention the Socialists – are questioning what they have agreed. The original idea was to restrict the use of the conditionality mechanism to cases of fraud and corruption, but the blocking of the recovery package funds goes ten times further. This means that, without any legal basis, they can do whatever they want and blackmail the member states. So we have been naive twice. Poland will not make the same mistake a third time. It can block everything that is potentially blockable, that is to say, all decisions requiring unanimity, namely all issues concerning taxation, the budget, or even the climate, which will be the first opportunity.

Olivier Bault: The Fit for 55 package?

Jacek Saryusz-Wolski: Fit for 55, yes. Article 192(2), read in conjunction with Article 194, of the Treaty on the Functioning of the European Union states that decisions on major sources of energy supply must be taken by a unanimous decision of the Council. In order to waive the unanimity rule in this area, there must first be a passerelle, that is to say, a unanimity vote accepting that decisions are taken by qualified majority. This means that Timmermans’ Fit for 55 climate package, made up of legislative acts which the Commission is basing on Articles 192–194 of the Treaty on the Functioning of the EU, presents the opportunity for a first veto which Poland will be prepared to use. This was publicly stated by Prime Minister Mateusz Morawiecki, including in the 24 October interview for the Financial Times.

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