The Paper's special contributor Hu Yukun
Recently, Poland has been on the same page with the European Union.
On October 7, the Polish Constitutional Court ruled that the European Court of Justice interfered in Polish judicial reform and violated the Polish Constitution, and that Polish domestic law had priority over EU law.
As soon as this move came out, the whole of Europe was in an uproar. At the European Parliament meeting on 19 October and the European Council (EU Summit) on 21-22 October, the leaders of the EU and many of its member states collectively challenged Poland. European Commission President von der Leyen accused Poland of "questioning the foundations of the EU and is a direct challenge to the unity of Europe's legal order", saying the Commission would take action to stop Poland from undermining EU values.
In the face of Polish Prime Minister Morawiecki's response to the EU's "threat of blackmail" and "secret expansion of authority", many members of the European Parliament took turns to attack, and the two sides debated fiercely for more than four hours. Outraged, von der Leyen proposed three possible EU sanctions, namely legal action against the ruling of Poland's Constitutional Court, which could withhold €57 billion in COVID-19 bailout loans and suspend some of Poland's rights as an EU member.
Von der Leyen (left) and Moravitsky (first from right) debate fiercely in the European Parliament.
Aware of the possibility of the EU's funding cuts, Moravitsky, in an interview with the Financial Times on October 25, increased his firepower and accused the European Commission of "starting a third world war" and that Poland would take up "all the weapons at its disposal to defend our rights.".
Calling the European Union, why is it always Poland?
In fact, Poland has "called" the EU more than once. Since the polish Law and Justice Party came to power in 2015, Poland and the EU have "exchanged fire" from time to time on constitutional and judicial issues.
At the end of 2015, the newly ruling Law and Justice Party disagreed with the Constitutional Court over the appointment of five new judges to the Constitutional Court; faced with a judicial system that it had not yet dominated, the ruling party led the passage of legislation requiring its nominated judges to perform their duties immediately, ignoring the Constitutional Court's unconstitutional ruling on the legislation, triggering the "2015 Polish Constitutional Court Crisis".
As a result, the EU began to launch its "nuclear option", Article VII of the Lisbon Treaty, to investigate Poland's "threats to the rule of law". Under the clause, if an EU member state is found to have committed a "serious and persistent violation of EU values," the EU has the right to punish it with the consent of a specific majority of the member states, including by cutting EU appropriations and suspending the member state's voting rights in the Council of Europe.
By 2017, the Law and Justice Party-controlled Polish Parliament had passed three bills dealing with judicial reform, giving the party-led parliament, the National Judiciary Council, and the Minister of Justice the power to appoint and remove judges from the Supreme Court and ordinary courts, respectively. After the introduction of the bill, not only caused an uproar in the country, the European Union also launched a second phase of investigation into Poland. In December of the same year, the European Commission described Poland's 13 laws as damaging to the country's judicial system and a threat to the rule of law, describing it as an upgraded constitutional crisis.
Because it was in the critical period of the British "Brexit", the EU had no time to take into account the substantive punishment for Poland, and the threshold for launching the "nuclear option" penalty clause was quite high, requiring the unanimous consent of the relevant member states, Poland and Hungary and other Central and Eastern European countries with the same position could support each other and reject the punishment clause against each other, making it difficult for the EU's countermeasures to produce substantive effects.
Entering 2020, with the official departure of the United Kingdom, the EU, which has freed up energy, is the first time to re-"inside". In January of that year, the European Parliament passed a resolution calling for the continued implementation of the "nuclear option" provisions for Poland and Hungary, triggering a backlash in both countries. Law and Justice said that "the EU has no right to demand such measures from the European Court of Justice against member states", and its leader, former Polish Prime Minister Jarosław Kaczyński, has threatened to leave the EU by threatening to leave the EUROPEAN.
In July, the European Court of Justice ruled that Polish judicial reform violated "the principles of the rule of law" and demanded that Poland suspend the disciplinary review body it established in 2020 specifically for judges. The Polish Government refused to carry it out and resorted to its constitutional courts. That led to the ruling in early October that left the EU outraged.
It is precisely because of the deepening rift between the two sides over the years that Poland's recent moves are also a natural result. It is undeniable that Poland's "deviance" to the EU over the years is closely related to the actual situation in which the country is located.
As a typical right-wing national conservative party, the rise to power of the Law and Justice Party is largely a product of the rise of right-wing populism around the world. Compared with the largest opposition party, Civic Platform, the party holds a protectionist stance in the economic and social spheres. At the same time, the party holds a soft European skeptical stance and is a member of the Conservative and Reformist Parties in Europe. This ideology, which was very different from that of the formerly ruling Civic Platform Party, determined that the new Polish government would inevitably introduce very different policies, and a conflict with the EU, which adhered to traditional values, was inevitable.
In the case of the most serious "constitutional crisis" (or judicial reform), the original intention of the Law and Justice party government is to arrange "loyal" judges in the judicial system so that their legislation and governance will not encounter obstacles from the judicial field. When the party first won power, nine of the Constitutional Court's then 15 judges were nominated for appointment by Civic Platform and its allies, apparently seen by the new government as a potential threat: any bill it tried to pass was ruled "unconstitutional" by ideologically opposing judges meant that governance could be "paralyzed."
At the end of 2019, the Polish Parliament passed the appointment of two Judges of the Constitutional Court, both of whom have exceeded the statutory retirement age (65 years).
It is not uncommon to use the judiciary as a tool for party politics, but Poland's move is too eye-catching, in the words of the Financial Times, to "gradually subordinate the judicial system to the executive system", which is naturally incompatible with the EU's emphasis on "judicial independence", and critics even call it a rebellion against EU values. The Polish government's explanation of "reforming inefficient systems" is clearly not convincing to the EU.
More than Poland: The Challenge of the EU's Structural Contradictions
Judicial reform in Poland has brought about more than just the differences between Poland and the EU on judicial issues themselves. A ruling by the Polish Constitutional Court and the Polish government's response to the EU's "illegal ultra vires and interference in Polish justice" not only raised concerns in some media about Poland's possible next "Brexit", but also unveiled the EU's long-standing structural contradictions.
First of all, the escalation of contradictions between Central and Eastern European countries represented by Poland and Hungary and the EU highlights the long-standing "east-west rift" within the EU.
After the recent wave of large-scale eastward expansion in May 2004, 10 Central and Eastern European countries, including Poland, Hungary and the Czech Republic, became members of the European Union. As these countries entered the European Single Market and customs union area, they also enjoyed the dividends of European integration, and after the transformation of the economic system in the 1990s, they more smoothly caught the fast track of economic growth and entered the ranks of high-income countries.
Annual GDP growth in Central and Eastern European countries from 2000 to 2019, of which negative growth occurred in 2009 due to the international financial crisis, source: world bank
However, the dividends of economic development may not last, but the imbalance between Central and Eastern Europe and other EU member states in terms of socio-economic development has increased unabated, and there are long-term differences in historical traditions, geographical location, social mechanisms, values and other fields behind them. In this case, the emergence of any hot topic may trigger a dispute between Central and Eastern European countries and the EU over the choice of "European values" and development methods.
As far as migration issues and refugee policies are concerned, Eastern European countries such as Poland are located on the easternmost land border of the EU, which is the first "line of defense" for refugees from outside the region to pour into the EU by land, and it is also a must.. In recent years, the situation in hot spots such as the Middle East has been unstable, and the refugee crisis has broken out, and Poland, Hungary and other countries have naturally borne the brunt of it. In recent days, Belarus has tried to use the "borrowed" refugee group to pressure the EU, and the most nervous must be Poland and the Baltic states bordering it.
At the same time, the level of economic development, population and social pluralism of these Central and Eastern European countries cannot be compared with the Western European countries that are geographically farther away from the "border", and the economic and social carrying capacity is even weaker. In this case, Hungarian Prime Minister Orbán called the immigrants "Muslim invaders" and proposed to ban any immigration for two years, which naturally received more understanding from Poland, but was blamed by the European Union.
Hungary has set up a barrier on its border with Serbia to stop the influx of migrants.
On issues such as abortion and media control, the conservative policies of Central and Eastern European countries such as Poland are also inseparable from the conservative religious and social soil of these countries, as well as the historical development background different from Western European countries. If the EU were to measure only the progressive ideas that had a deep tradition in Western European countries, there would be no understanding and consensus with Central and Eastern European countries on this issue.
Even when it comes to the EU's largely consistent foreign policy, the Central and Eastern European countries are not quite on the same footing with the rest of the EU, especially when it comes to Russia. After all, Poland, Hungary and other countries and Russia are very different from Western European countries in terms of geographical distance and post-World War II historical origins, and it is not surprising that they seem to be more ideologically oriented in the "Nord Stream-2" gas pipeline project and the issue of dealing with Russia.
This round of judicial reform and the struggle for legal priority touches on another far-reaching and enduring structural contradiction in the EU: the difficult balance between supranationalism and the idea of sovereign statehood, as well as the inevitable conflict.
"Supranationalism" and "intergovernmentalism" are the two pillars of the European Traditional League, and the collision and integration of these two ideas also constitute the main theme of the European integration process. The former emphasizes that the EU has authority and power over that of member states, while the latter focuses on the importance of member states in the EU's rule-making process. But in any case, the debate on these two pillars has always revolved around the establishment of effective rules and regulatory operating mechanisms for the EU Community.
According to the EU's official interpretation, the EU is unique in this supranationalism: although the member states maintain their sovereignty and independent status, they decide to cede some of their "sovereignty" to the EU in areas where cooperation is needed. The first and second half of the sentence literally contradicts itself with the naked eye, and when it is implemented in political practice, it is bound to become more acute.
With regard to the demarcation of the border between EU authority and the sovereignty of member states, the EU has determined it on many occasions through the conclusion of treaties. As far as the legal authority dispute between Poland and the EU is concerned, both sides are appealing to the same annex to the Lisbon Treaty. According to the document, if the relevant EU law conflicts with the relevant laws of a member state, then EU law takes precedence over the latter.
The problem was that the document also recognized that this principle did not exist in black and white in the body of the Lisbon Treaty, but only in a brief statement, which later became an annex to the Lisbon Treaty. In addition, according to the description of the text, the principle of eu law precedence was developed and established through the case law of the European Court of Justice, adding uncertainty to specific practice. Thus, Poland, Hungary and the European Union interpret the same legal text in opposite directions.
The ambiguity of the treaty's text stems from the inevitable contradiction of the EU's supranational concept.
For member states, including Poland, the dividends of European integration and the rights and benefits enjoyed in the EU (such as huge loans to bail out the epidemic) are reluctant to give up; but they have to bear excessive obligations for the EU or "pay" for other member states in the crisis (such as the European debt crisis), which makes them suspicious from time to time. Once the country's sovereignty was contracted and suppressed to the limit of tolerance, the contradictions between Poland, Hungary and the European Union became open.
Of course, Poland is not really "leaving the EU" for this legal power struggle. The Law and Justice Party has repeatedly said that Poland has no intention of "leaving the EU", and Morawiecki also said in a heated debate between the European Parliament and other EU member states that "we should not spread rumors of Poland's 'Brexit'". "Remain" in Poland has a strong public opinion base: in recent years, a number of polls have shown that nearly 90% of the Polish people support Remain in the EU; even in July this year, when the contradictions between Poland and the European Union over judicial reform intensified, the Poll of the Polish "Republic" newspaper showed that 62.6% of the people were opposed to "Brexit", much higher than the "Brexit" supporters (16.9%).
The real problem is that in the case of very different national conditions of member states, supranationalism and sovereign state borders are not clear, and structural contradictions are not fundamentally alleviated, Poland will not be the last member state to compete with the EU, the voice of Euroscepticism will not be dispelled, the concerns of "Brexit" may appear in other member states at any time, and the foundation of the EU will face continuous challenges.
The process of European integration, which began more than 70 years ago under the guidance of supranationalism, tests the wisdom of the leaders of the European Union and its member states in line with the new era and how to stabilize the cornerstone and continue to develop.
(Hu Yukun, Member of the China Translation Association and International Political Observer and Analyst Hu Yukun)
Editor-in-Charge: Zhu Zhengyong
Proofreader: Ding Xiao