The deputy head of the European Commission, Věra Jourová, believes that the CJEU (Court of Justice of the European Union) does not go beyond the limits of its powers, because… it sets them itself. The Czech politician will soon start another political row – this time not over the courts, but the media.
Today, in the EC, the Polish government has two of the most serious opponents. First – the Czech Věra Jourová, vice-president of the European Commission, whose portfolio includes values and transparency. Second – another vice-president, Frans Timmermans, who in the previous term of the European Commission fought the same battle that Jourová has taken over, and is now the chief promoter of radical ecological solutions, extremely unfavorable for our country. He is the propagator of the dreadful “Fit for 55” package.
The president of the European Commission, Ursula von der Leyen, is playing a rather ambivalent role in the conflict between the PiS government and Brussels. At times she seems irreconcilable, mainly in relation to the European Parliament, which for the large part is extremely confrontational in relations with Warsaw, and at times she is trying to propose a compromise of sorts. It remains unclear what the relationship between von der Leyen and the members of the Commission looks like and to what extent the president is able to impose her own point of view on them. Well informed people say that there is a visible emphasis on centralization. This found its institutional reflection in the redesigning of the EC structures in such a way that the spokespersons of individual areas stopped working for the commissioners and were subordinated to the president herself. From this term of office, the direct media service of a given member of the Commission is provided by someone from his cabinet, but in order to standardize the information policy, the spokespersons were excluded from the authority of the commissioners.
Who is Jourová playing for
Putting aside the tearful stories about European values, one could ask: Who is Commissioner Jourová playing for today, when the Czech government has changed and Andrej Babiš is no longer the prime minister? Jourová was associated with his party Ano in the past. She was nominated as a commissioner in the previous EC term from the coalition government led by the Social Democrat Bohuslav Sobotka, and Babiš was the minister of finance there for some time. Now, however, the prime minister is centrist Petr Fiala, who heads a cabinet that includes as many as five fractions. Ano is not among them.
What will the relationship between the Fiala government and the Czech commissioner be like is not yet known. What is known, however, is that in the event of a change of authority in a member state, it is not formally possible to dismiss a commissioner previously appointed by another cabinet, because the rule is that the members of the Commission are “independent”. The PiS government had the same problem with Elżbieta Bieńkowska1.
A direct meeting with the Commissioner allows us to formulate a journalistic assessment. Such an opportunity arose when, at the very end of November, Věra Jourová was answering questions from a group of Polish journalists in Brussels for about an hour. First, however, she seemed to make a passionate declaration of faith in her mission. In it, she reiterated the standard argument that the politicization of the judiciary creates a problem for the growth of business, which requires a stable legal environment, and also undermines the conditions under which EU funds are to be used.
But soon her speech shifted to a personal tone. Jourová complained that her relentless stance did not make her popular in her own country, especially since the Czechs, including their President Miloš Zeman, are much more Eurosceptic than the Poles. “How many people still have to tell Minister Ziobro2 that he is in the wrong before he acknowledges it?!” She asked rhetorically and a bit melodramatically. She also regretted that in the matter concerning the judiciary, there had never been a constructive partner on the Polish side.
She recalled her own story, which was supposed to make her more sensitive to the issue of politicizing the judiciary. In 2006, she was detained and then arrested for a month on corruption charges. These were ultimately not substantiated, and Jourová was compensated in the amount of 2.7 million Czech Koruna (today less than half a million PLN) for the unjustified arrest.
When speaking about the rule of law in Poland, the Commissioner does not seem open to a compromise. Each of her statements emanate with the conviction that she is absolutely in the right.
I had the opportunity to ask the Czech Commissioner a few questions. So, I first asked about the argument, which did not only appear on the Polish side, that the CJEU is constantly expanding its powers, relying on very vague and ambiguous foundations contained in the EU treaties. Jourová replied that the EU tribunal was empowered to interpret the treaties, so there could be no question of extending its powers beyond the established limits. It was apparent from her words that the court sets these boundaries itself, so it cannot violate them. In this way, one of the most serious problems of the EU today to is deemed non-existent by Jourová, who is effectively giving the green light for – virtually unlimited – interpretations of the treaties by the CJEU.
Indeed, the commissioner admitted that the CJEU should enter into dialogue with the constitutional courts of the member states (although it is difficult to say whether she also meant the Polish Constitutional Tribunal in its present composition), and its judgments should be “more predictable”. However, it is difficult to understand what specificity could be behind these vague statements.
I also asked if Jourová saw any grounds for criticizing the Polish judicial system in the structure it was in prior to 2015. The response was restrained. She admitted that she knew there were problems and that the level of trust in the judges was low. She assured that she tried to understand the reasons behind the Polish changes and stated that the judiciary was undergoing reform in many of the member states. However, she said, she was unable to accept the “politicized” reform.
The third question concerned the attitude of the judges fighting against the government and their open political commitment. “How do you assess this attitude in the context of the expectations of impartiality and objectivity of the judges?” – I asked.
The answer was blunt and evasive: “Judges must maintain high standards of objectivity and independence”, Jourová concluded simply.
It is hard to say that the Czech commissioner is honest about the situation in Poland – however critical we would be in the assessment of the actions of Minister Ziobro – since she does not see the open political commitment of some judges who are openly fighting against the government, and she comments on this phenomenon with a vague formula. One ought to recall, for example, the recent appearance of judges Żurek and Juszczyszyn at the anniversary of the Committee for the Defense of Democracy3.
What, then, is the Commissioner proposing and what exactly are her expectations? – Polish journalists asked. There was no specific answer. Jourová assured that it is not about simply restoring the state of affairs that was in existence prior to 2015, but also said that no one will provide Poland with specific solutions. Although it is clear, in her opinion, that it is necessary to get rid of the elements that are “politicizing” the judiciary, and thus first of all, the present National Council of the Judiciary and the Disciplinary Chamber of the Supreme Court.
Is the media next?
Those who think that the case of the Polish judiciary or the Hungarian political system is where Jourová’s ambitions end are wrong. As we have learned from sources in the Commission, the Commissioner’s office is working on a project that could trigger another political earthquake. It is supposed to be an “act of freeing the media”, defining how the media, especially the public-funded, are to remain outside the influence of politicians. The regulation would also deal with the issues of transparency of public advertising, i.e. supplying the media with public funds, as well as the transparency of ownership structures. At the same time, it is not a non-binding declaration, but a full-fledged legal act in the form of a directive or regulation – at least that is Jourová’s goal. Jourová, when was asked if she was afraid that the European Commission would be – rightly – accused of stepping outside the limits of its powers, seemed unmoved. “Yes, of course, there will be a row over this” – she responded.
It may therefore turn out that the Polish government – and others – are still to face another serious battle with the self-proclaimed sheriff of the “rule of law” from Prague.
1 Elżbieta Bieńkowska served as Poland’s Deputy Prime Minister and Minister of Regional Development and Transport before being nominated as European Commissioner by Jean-Claude Juncker in 2014
2 Zbigniew Ziobro is in the Attorney General and the Minister of Justice
3 The Committee is a Polish civic organization that was founded in November 2015 during the political and legal conflict surrounding the Polish Constitutional Tribunal
This article was published in December 2021 in “Do Rzeczy” magazine.