Illegitimate actions of EU authorities regarding the rule of law in Poland. Ordo Iuris opinion

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The issue of connecting the disbursement of EU funds with the so-called rule of law provoked many comments. The Ordo Iuris institute sent a legal opinion to all members of the European Parliament on the proposed regulation on the matter. This is a response to the unjustified actions of the EU institutions aimed at Poland and Hungary due to the alleged lack of respect for the rule of law. The Institute draws the attention to the fact that in some EE countries there are significant violations of the rule of law which are not discussed by the European Commission.

In November the European Parliament and the Council concluded the so-called provisional agreement on the adoption of a proposed regulation which introduces the EU budget conditionality mechanism, under which the allocation of funds depends on the “rule of law” in individual Member States. As part of the procedure provided for in the agreement, the European Commission may request the EU Council to take “appropriate measures” if “an infringement of the rule of law affecting the financial interests of the European Union” occurs in a given Member State or when “a serious risk of such a breach arises”. An “appropriate measure” may be various types of unspecified sanctions, including limiting access of a Member State to EU funds. This regulation will enter into force on 1 January 2021, subject to the European Parliament approval.

As a response, the Ordo Iuris Institute's International Law Center prepared a comprehensive opinion analysing the proposed regulation. In the opinion, the Institute shows that the European Union has no competences to intervene in matters related to judicial systems in Member States. EU competences are described in detail in Article 3, 4 and 6 of the Treaty on the Functioning of the European Union, and none of them provides for the possibility of regulating solutions related to the administration of justice at the Community level. The Institute also refers to two opinions of the Legal Service of the Council from 2014 and 2018, in which EU lawyers considered unacceptable attempts to introduce additional mechanisms of control of the rule of law beyond the procedure provided in Article 7 of the Treaty on European Union (where sanctions occur, however, subject to the unanimity of the Member States).

The opinion also highlights selectivity in the European Commission's approach to the rule of law in the Member States. The European Commission has initiated two proceedings against Poland over the alleged threat to the rule of law, despite the fact that the government is consistently implementing all CJEU rulings concerning Poland and is also fairly implementing its election programme in the area of judicial reform, taking advantage of the democratic legitimacy that comes from the majority of the society. At the same time, the European Commission did not intervene when Spain in 2019 refused to comply with the CJEU ruling on a Catalan politician who, despite being granted the MEP mandate and the related immunity, is in prison in Spain. In France, on the other hand, at least since 2018, there have been numerous violations of freedom of assembly and freedom of speech caused by unjustified police and secret service violence, which has been repeatedly pointed out by the well-known organisation Amnesty International. The Ordo Iuris Institute also describes the key points of the judicial reform in Poland, showing that the accusations against the autonomy of the Polish judiciary are completely unfounded.

“The legal basis for the proposed budgetary regulation is Article 322 of the Treaty on the Functioning of the European Union. This provision refers to ‘financial rules specifying in particular conditions for establishing and implementing the budget’. Meanwhile, the project is not limited to regulation of financial rules, but enters into structural and political issues related to the so-called rule of law. This clearly goes beyond the competence regulated in Article 322 of the Treaty on the Functioning of the European Union. This provision can be used to create a 'conditionality mechanism' for the disbursement of budgetary funds, but it must be precise and include only criteria directly linked to the proper use of funds. The concept of the rule of law has nothing to do with the proper using of funds, and in addition, it is unclear because there are different models of the judicial system in European countries, and it is difficult to say according to what criteria one should assess whether they are sufficiently 'lawful'”, said Dr Tymoteusz Zych, Vice-President of the Ordo Iuris Institute.