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Responding to a proposal of the European Commission, on Tuesday (June 22), EU affairs ministers have met in Luxembourg to hold a hearing on the breakdown of the rule of law in Poland and Hungary under the Article 7 sanctions procedure. While the Commission has launched the disciplinary procedure against Poland already in December 2017, the last hearing took place in December 2018.

- The legitimacy of Poland’s Constitutional Tribunal was one of our main concerns- said the European Commission Vice President Vera Jourová. She repeated that the Disciplinary Chamber of Poland’s Supreme Court is not an independent court, adding that the CJEU will announce in mid-December its judgment on the Polish judicial disciplinary system which has been challenged by the Commission.

Poland’s EU affairs minister: we’re discussing the same thing over and over again

The Polish delegation was quizzed by, among others, Michael Roth, who spoke on behalf of Germany and France (both countries also had a joint representative during previous discussions regarding the rule of law). Other representatives included ministers from Luxembourg, the Netherlands, Spain, Austria, Denmark, and Finland. While there were no explicit voices of support for the Polish authorities, the silence of "younger" EU member states from Central and Eastern Europe was emblematic. This was also the case, with very few exceptions, during previous debates on Poland’s violations of the rule of law.

In Brussels, such silence on the part of younger EU member states raises concerns about escalating tensions on the East-West axis. At the same time, EU’s eastern flank, i.e. Poland, Hungary, and recently even Slovenia, continues to argue that the source of "misunderstandings" with regard to the rule of law lies in "old" Europe’s ignorance towards the block’s younger member states.

According to the people we spoke with, Poland’s minister for EU affairs Konrad Szymański attempted to convince other ministers that the Article 7 procedure, which has been dragging on for four years, had only added fuel to anti-EU sentiments in Poland.

- Besides the formal hearings, there were also other discussions concerning the same topic, making today’s meeting probably the 15th time the Council is discussing the state of the rule of law in Poland. The remarkably routine course of today’s hearing must raise questions about its added value, also for other countries. Thus, the question arises as to how long one can talk about the same thing over and over again – Mr Szymański argued after the meeting in Luxembourg.

Brussels defends the primacy of the EU law

A new development that the Polish delegation was asked about were the motions to the Constitutional Tribunal (mainly from Prime Minister Mateusz Morawiecki) concerning the interpretation and scope of the primacy of EU law over national law. Put simply, their aim is to assert the primacy of the Polish Constitution with regards to the justice system. This, in turn, would render CJEU decisions on Poland’s rule of law violations unconstitutional.

Two weeks ago, EU Justice Commissioner Didier Reynders asked PM Morawiecki to withdraw his motion from the CJEU. – Today, I reminded the EU Council that the Polish Constitutional Tribunal has already ruled twice, in 2005 and 2010, on the constitutionality of EU treaties. Back then, however, for some reason, the actions of the Constitutional Tribunal did not receive any attention from the European Commission- Mr Szymański said.

What will the Commission do if PM Morawiecki decides not to withdraw his motion? - This is the prime minister's privilege. We will have to analyze the judgment and act accordingly. I would like to remind you that we have initiated an infringement procedure against Germany with regards to the decision of the Constitutional Court in Karlsruhe- Ms. Jourova said.

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