Since the European Parliament's lawsuit against Commission President von der Leyen over the Polish Court decision, the stand off between two of the three major institutions of the European Union has reached new heights, with the decisions by the European Court of Justice (ECJ), not to mention the Polish border crisis, setting the agenda.
In both its border crisis with Belarus and in its conflict with the ECJ, Poland has ended up on the front line in two core European issues, albeit on opposing sides. On one hand – the border crisis, in which migrants have been weaponised to undermine EU common border security, has drawn condemnation from European governments and EU leaders all round, from President von der Leyen to Foreign Policy Chief Joseph Borrell. On the other hand, the issue of the 'rule of law mechanism' and complimenting that with EU recovery funds shows that the animosity continues, as ever – and the 'Shadow Commission' of a Parliament remains ever-willing to push the Commission on this issue in order to grow its teeth, as its recent letter reveals.
It would be best to start to acknowledge the obvious – that the weaponisation of migrants has put Brussels in a very tough spot. Brussels, for fear of igniting xenophobia within its member states or of asking itself tough questions on immigration and border security, remains unwilling to provide any tacit endorsements of the means that the Polish government has taken to protect its own borders, even though this is also an EU common border, and we can only assume saying little to nothing is their best strategy to watching this issue go away. For if this were to get worse, it would be easy to envision the 26 other member states' governments uniting around Poland to protect their own border security and the Commission, unwilling to see any inter-member hard borders put up, will have to follow – this takes the Commission out of its comfortable spot as the EU's organ with primacy over big domestic tasks, and puts control where it really lies, in the Council.
The Commission's past positioning as one to stand up for smaller member states, as a counterweight to the Council, seen by them as being dominated by larger, Western European member states. We can see this odd dynamic playing out in the vaccine programme early this year, as this POLITICO article shows. This is a space that ought to be watched as border sovereignty remains one of the most vital areas of any nation's security, as well as one of the main points of contention during the referendum campaign and will likely remain one in the coming years.
Looking back at the Parliament group leaders' letter to Commission President von der Leyen, it is clear the Parliament seeks to redefine the parameters of the Commission's executive power and in particular, the domestic role it can play in relation to its member states and its position in the Union as a whole. The October lawsuit by the Parliament's President laid out the clear divisions in positions between the two Presidents and their respective institutions, but now the group leaders' letter goes further – it both redefines the parameters of the Commissions' authority and demands a very specific interpretation of recent ECJ rulings.
Firstly, the letter, written by the leaders of the 5 major political groups in the European Parliament (EPP, S&D, Greens, The Left, Renew Europe), demanding that the Commission not approve funding for its economic recovery, has redefined the Commission's purpose and role in the EU. In the letter, it says the Commission is "guardian of the Treaties" and hence, has a specific obligation to "refrain from approving the Polish recovery plan". The Commission describes itself as the executive arm of the European Union and has roles ranging from making policy to proposing and implementing new laws - now, however, the commission is simply responsible for making sure Treaties are followed. Whether Poland has violated the Treaty is one question, but the fact the Commission's role has been traduced by the group leaders into that of a constitutional court as suggests the Executive arms only role is to keep those member states' governments in check – they now take a much more reductive and limited interpretation of the Commission's role in the EU, as the guardian of the EU's founding treaties.
The Commission's view, as it says on their website, is that Treaties govern the areas the Commission has executive authority over – in other words, it is the Treaties, interpreted by the ECJ, which monitor the Commission's activities, not the other way round. We can only assume this new interpretation of the Commission as a lower constitutional court of such exists to create a vacuum: by reframing the Commission as merely a monitor on member states, it allows the European Parliament and its group leaders to edge closer and closer to true authority – more specifically, closer to the role of the US Congress with the federal budget.
The willful creation of a Shadow Commission could well reshape the European Parliament's role into anything between scrutinising the Commission's performance, pushing it on policy, or even making it.
Secondly, the European Parliament's group leaders' letter reveals a willfully ignorant interpretation of the Commission's response to an October ECJ ruling (press release here) ordering Poland to pay a €1 Million daily penalty, which makes the group leaders' demand to sanction Poland, especially in this context, even more unjustifiable. Putting the proportionality (or lack thereof) of the €1 million penalty aside, the parliamentary leaders have taken the Commission's response and attempts to get the Covid recovery going (an entirely separate issue) to mean "commit to comply in the future, and we will pay" instead of what their preferred route is, "comply immediately or pay". Either, of course, are a form of economic coercion by EU institutions on Poland and originate from deeply politicised debates over the Polish judiciary.
What the group leaders are suggesting, however, is that the Commission has not been responsible and authoritative in following the ECJ's rulings, and that Poland should hence be denied economic recovery funds – the economy of which affects the whole Union. The newfound spirit of agitation brought forth by these group leaders can only imply they have plans to become a Shadow Commission or at least an equal challenger to the Commission's power, and use whatever means necessary to fulfill their federalist agenda, even if that means treating an independent court decision and a bloc-wide economic policy as one and the same.
This irony is not lost on me, and it is clear the European Parliament's new confrontational line with the Commission reflects a growing desire by the Parliament to flex their political muscles and become the frontmen in the standoff between the EU and Poland.
