The rule of law in the EU in the light of Russia’s attack on Ukraine

After Russia’s invasion of Ukraine revived questions about the application of the rule of law in the European Union. Firstly, what should the rule of law as an EU value require from the Member States. Secondly, is there a place for differences based on cultural experiences and traditions of the Member States in the rule of law standards? Waldemar Gontarski: Praworządność w UE w świetle rosyjskiej agresji

In Poland it started on 3 May 1791

In our country, the system changed for the last time on the last day of 1989, when an amendment to the constitution entered into force, which involved not only a change of the state’s name, but mainly introduction to Article 1, what is now contained in Article 2 of the 1997 Constitution, i.e. democratic state ruled by law.
Historically, we had the oldest constitution on the continent based on the tripartite division of powers, which is also related to the rule of law, being the Constitution of May 3, 1791. The current Polish Constitution of 1997 indicates the inherent and inalienable dignity of the person as the most important value set out in Article 30. This principle is equivalent to what Hans Kelsen called Grundnorm. It is also the highest value of EU law, contained in Article 2 of the Treaty on European Union, at its very beginning.
Respect for human dignity is the systemic meta-principle in Poland and the European Union. Inevitably, to the second question asked – Is there a place for differences based on cultural experiences and traditions of the Member States in the rule of law standards? – I must provide a negative answer if the rule of law is to be considered in a broader sense, i.e. as values protected by Article 7 of the Treaty on European Union.

There is no compromise with respect to the core values

At the same time, I believe that the compliance with this meta-principle, contained in the protection of human dignity, is the most problematic for those EU Member States which – paradoxically – accuse Poland of violating the values protected by Art. 7 TEU. What I mean is that Russia’s armed attack on Ukraine – including civilians and civilian facilities – would be impossible if the Western world had reacted adequately to Russia’s earlier aggressive actions against Ukraine, dating back to 2014, against which Poland has warned at the time. Some of the EU Member States must have then considered the lives of Ukrainian citizens to be of lesser value than economic interests, especially those related to gas pipelines and oil. In this way, such Member States violated the fundamental values of the European Union enshrined in Article 2 TEU. As mentioned before, among these treaty values, human dignity appears in the first place.
The values set out in Article 2 TEU are also violated after Russia’s invasion of Ukraine on February 24, 2022, when some of the EU Member States are reluctant to provide aid to Ukraine. It is easy for me to talk about all of this today, because I already mentioned it in an entry posted on my website right after the aggression of February 24, 2022. Unfortunately, no one picked up on this topic, which is my personal test on application of Articles 2 and 7 TEU.

Let us have a look at the hierarchy of values set out in Article 2 TEU

Most importantly, it is to be hoped that the EU debate, especially on the principle of a democratic state ruled by law, will now take into account the hierarchy of values set out in Article 2 TEU. As a consequence, the procedure for the protection of the broadly defined rule of law, i.e. the procedure provided for in Article 7 TEU, should be launched against those countries which over the years, regardless of the annexation of Crimea and other Ukrainian lands in 2014, and contrary to Poland’s warnings, bought gas from Russia at relatively low prices, and thus, on the one hand, secured prosperity, but on the other hand, they funded Russia’s criminal attack on Ukraine.
Today, Poland, by providing Ukraine with the greatest assistance among the European Union Member States, indirectly pays for the energy prosperity of the richest countries in that Union. One of these countries in particular, supported by two smaller ones, did in fact unilaterally transfer the EU’s energy sovereignty to Russia. If anyone has doubts about what I am talking about, I recommend reading the judgment of the Court of Justice of July 15, 2021: Germany v. Poland, C-848/19 P.
As we read in this judgment on the principle of energy solidarity: “According to the Federal Republic of Germany, it is an abstract, purely political notion, and not a legal criterion for the assessment of the validity of an act of an EU institution”.
Poland won the case, but Germany and the European Commission, in order to facilitate the EU’s increased dependence on Russian gas, argued that the principle of energy solidarity set out in the TFEU amounted merely to a political declaration, i.e. it did not constitute a legal value. Today, Germany and the European Commission, due to the energy consequences of the war in Ukraine, are hastily arguing the opposite, which prompts us to ask a question about not only the limits of law, but also cynicism in the European Union. Let us add that energy solidarity was included in the Treaty of Lisbon thanks to the efforts of the then President of Poland, Professor Lech Kaczyński.

Establishing the causal relationship…

…is in the lawyers’ realm. It should thus be emphasized that as a result of the Western Europe’s energy policy, the dignity of Ukrainians is being brutally violated today, and at the same time the dignity of the inhabitants of the frontier states who are the EU citizens: the Baltic republics and Poland is threatened.
Taking into account what was already said, the answer to the first question also appears to be clear: What should the rule of law as an EU value require from the member states? In the theory of law, the internal systematics of a given editorial unit of a legal text can be distinguished. Already the prima facie reading of Article 2 TEU, shows that today the fundamental values are problematic mainly for the Western European countries – including those that once founded the European Coal and Steel Community and which welcomed us to the EU on May 1, 2004.
Aristotle said: equals should be treated equally and unequals unequally. Let the western capitals of the EU Member States and the institutions of the Union finally make some revaluation in their thinking, relying on the internal systematics of values enshrined in Article 2 TEU.

Summarizing: When the trying times have come, the rule of law sensu largo allows us to determine who is Primus inter pares now and who is not keeping up and should let others know not to follow him anymore.

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