Censuring von der Leyen’s Capitulation on the Rule of Law

The spectre of a motion of censure is looming over the von der Leyen Commission. While this rather extraordinary, perhaps desperate, measure appears unlikely to attain the required number of signatures to be tabled – and even less likely to be adopted by the European Parliament –, this initiative deserves some scrutiny. Perhaps even some praise by those who still believe in the primacy of law over power.

In the entire Union’s history, only seven times a motion has been tabled and  debated against the European Commission. None of them have passed. The resignation of the Santer Commission in March 1999 was prompted by the mere fear that such a motion would pass. The latest motion was tabled against the Juncker Commission further to the “Lux leaks”, and rejected by the European Parliament on 12 November 2014.

Needless to say, the motion of censure is an exceptional threat, representing the most important means of political control by the European Parliament over the Commission, which is responsible to the former as a collegiate body.

This time it is three figures from the Renew Europe group, which belongs to the parliamentary majority supporting the current Commission – Renew Europe –, that took the initiative to launch “a call for signatures for a Motion of censure” of the European Commission under Article 127 of the Rules of Procedure.

This initiative was triggered by the EU Commission’s decision of 1 June 2022 to approve Poland’s EUR 36 billion national recovery plan, despite the country not having complied with all European Semester country-specific recommendations in the field of the rule of law, nor implemented the relevant judgments of the Court of Justice of the EU and the European Court of Human Rights.

The Commission decision, which has aptly been defined as the Union’s capitulation on the rule of law, encountered immediate and unusual resistance within the College of Commissioners where five members, including two Commission vice-presidents, voted against or submitted written concerns.

By formulating Poland’s overdue compliance with EU law in terms of ‘milestones’, the Commission is re-qualifying compliance with CJEU’s rulings as ‘reforms’. Yet this produces the perverse effect of providing financial incentives to comply with pre-existing and generalised legal obligations that bind all Member States and for which no financial rewards are foreseen. Moreover, in so doing, the Commission is de facto prolonging, and therefore worsening, the effects stemming from the country’s rebellious non-compliance with the EU legal order.

Indeed, while the disbursement of the funds is made conditional upon the respect of three milestones – as Professor Sadurski explains – “the first milestone is “implemented” in a deceptive manner, simply by changing the name of the institution to be abolished (i.e. the Disciplinary Chamber); the second (i.e. reinstatement of the judges unlawfully suspended by the Disciplinary Chamber), only partly, with no guarantee that the unlawfully suspended judges will be restored to their lawful offices, and the third (i.e. removal from the disciplinary system of judges’ liability for their judicial decisions, including addressing questions of preliminary reference to the CJEU), also only partly, by removal of only one aspect from a long list of pathologies of the current disciplinary system for judges. Ultimately, by failing to cover all instances of non-compliance, the selective nature of the ‘milestones’ further endangers and therefore compromises the authority of the Court of Justice’s rulings.

It is against this backdrop, that the co-initiators of the motion intend to submit it to a vote “in the moment the Commission transfers NextGen funds to Poland before all ECJ rulings have been fully implemented, before the dismissed judges have been reinstated, and without Poland recognising the primacy of EU law”.

The Parliament’s motion emerges as an attempt at remedying at the Commission’s capitulation on the rule of law, filling the gaps left open by the College and soon to be endorsed in the draft Council implementing decision.

Yet, should it be successfully tabled, the motion is set to change the political calculus not only within the EU Commission (the Polish generous refugee policy outweighs its systemic departure from the rule of law), but also within the Council, which is set to adopt the implementing decision as soon as next week. This may delay, or at least lead to a political re-assessment of both the form and substance of the draft Council implementing decision.

Should this occur, this initiative could mark a novel use of the ultimate instrument of political control – the motion of censure – that reminds of the no-confidence vote used in several parliamentary democracy. This is used by parliamentary forces that support the government to signal major disagreements that might endanger that very same underlying relationship of trust between the majority and the executive.

This development finds reflection in the particular emphasis on the political linkage between Parliament and Commission following the entry into force of the Lisbon Treaty. Under Article 17(7) TEU, European Parliament is tasked to elect – not merely ‘approve’ (Article 214(2) TEC) – the President and the College of Commissioners.

This nods in the direction of a system of parliamentary democracy, in which the European Commission – like a national executive – sets its political priorities and is accountable to the European Parliament and EU citizens for its performance. That’s what Jean Claude Juncker did in his self-proclaimed first political Commission. That’s what Ursula von der Leyen failed to do with her new EU Commission.

As predicted in the aftermath of her rocambolesque nomination by the European Council, followed by her equally difficult election by the European Parliament as President of the European Commission, this “has profound and long-standing implications for EU democracy – and von der Leyen’s inability to reform it – in the years to come”.