Poland on Tuesday dug in its heels in a standoff with the European Commission over the country’s constitutional crisis, with a Polish government delegation in Brussels taking a tougher line than just a few days ago, sources told POLITICO.
The Polish delegation met with Commission officials ahead of a Tuesday evening phone call between Frans Timmermans, the Commission’s first vice president, and Polish Prime Minister Beata Szydło. Polish media reported that the call did not produce any breakthrough.
“Work is continuing and we hope that we’ll shortly be able to work out an appropriate legal solution,” government spokesman Rafał Bochenek said after the call.
The rush of diplomacy comes before a regular meeting of all 28 European commissioners on Wednesday, when Timmermans may decide to continue pressing the right-wing Polish government to end the confrontation over the country’s top constitutional court.
However, the terms presented by the Poles on Tuesday were tougher than had been discussed last week in Warsaw, when Timmermans met with Szydło.
The new Polish position mirrors the stance Jarosław Kaczyński, the leader of the ruling Law and Justice party and the country’s most powerful politician, spelled out in a recent Polish press interview.
“Kaczyński’s stance is much tougher,” said a Commission source.
In that interview, Kaczyński also cast doubt on the Commission’s right to carry out its unprecedented rule-of-law procedure against Poland, launched in January over concerns that the authorities in Warsaw were violating the EU’s democratic rules. He called it a “made up” procedure and threatened to challenge it in the European Court of Justice.
The sources said the new Polish government standpoint doesn’t meet the requirements set out by the Venice Commission, the legal arm of the Council of Europe, which earlier this year issued a report on the crisis.
Ending the crisis
The Venice Commission called for the government to recognize three judges elected to the 15-judge Constitutional Tribunal by the last parliament. It also said the government should respect the tribunal’s March 9 verdict which found that a new law regulating the way the tribunal works was unconstitutional. That law was widely criticized for preventing the tribunal from properly functioning, eroding its ability to vet laws passed by parliament.
Szydło and Kaczyński have refused to recognize the March 9 verdict, saying that it did not meet the requirements of the new law, which demanded verdicts be reached by a two-thirds majority, not by a simple majority.
The government insists that three judges chosen by the new parliament and sworn in by President Andrzej Duda are legitimate. The delegation in Brussels discussed how to seat the disputed judges without displacing the new ones.
It also talked about how to treat the March 9 verdict.
One option is to publish more recent tribunal verdicts, which have also been disregarded by the government, and then to only publish the March 9 decision once a new law regulating the court is in place.
However, that position varies significantly from the recommendations of the Venice Commission.
The European Commission has also stressed it will not accept tribunal voting rules that water down the principle of a simple majority being enough to issue a verdict.
That presents a conundrum for Timmermans, who is guided by the Venice report. He is due to discuss the Polish situation with his fellow commissioners on Wednesday.
Timmermans was given permission to send an opinion to Warsaw last week, which would note the Commission’s concerns and give the Polish government two weeks to respond.
It’s the first part of a three-step process that theoretically could end with Poland losing its EU voting rights under an Article 7 procedure. However, that decision has to be approved by all other 27 EU member countries, and Hungary has said it will back Poland.
A Commission official said that moving that far is a “nuclear option” which Brussels will do what it can to avoid.
The Commission held back on sending the opinion last week, after a leak of the draft provoked fury in Poland. Warsaw has portrayed the probe as an unfair attack by Brussels bureaucrats on a legitimately elected conservative government.
This article has been updated with the phone call between Timmermans and Szydło
Jacopo Barigazzi contributed to this article.