Over recent weeks, politicians from Law and Justice (PiS) and pro-government media have made the European Union a scapegoat, accusing it of being sluggish and inefficient in responding to the coronavirus pandemic. “It was the nation states which passed the test,” they have argued.

In a statement of 21 May 2020 addressed to the head of the Polish government, the Commissioner undertook to defend the EU.

“Making such accusations against the EU, or even suggesting that this organisation has failed to take the actions that it was obliged to do in the face of a coronavirus pandemic, […] undermines the trust of our country’s inhabitants in the Union and its institutions, and is incompatible with both the legal and factual state,” Bodnar said in countering the government’s line.

As the Commissioner emphasised, providing reliable information to citizens about the activities undertaken by the EU is “in Poland’s vital political interest”; since we are counting on solidarity from the EU, we should also show it.

“In particular, public statements by members of the Council of Ministers should be up-to-date, true and based on facts, in accordance with the requirements of Articles 54 and 61 of the Polish Constitution. These attempts to transfer to the European Union, its institutions and bodies all responsibility for problems and lack of effective action seem unjustified,” the letter stated.

“Spreading unreliable information about the EU distorts its image, fuels hostility, and reinforces unfavourable attitudes questioning the need for it. This does not serve as constructive and responsible criticism, but directly leads to undermining the sense of European integration, which is one of the greatest achievements of modern times,” wrote Bodnar.

The EU’s importance for Poland

The Commissioner began his letter by reminding the Prime Minister of the great value of EU membership for the Polish people. As Bodnar emphasised, the EU is “an expression of pan-European values ​of freedom, democracy, the rule of law and respect for human rights.”

But as well as the community of values, the Union also has a number of measurable benefits for Poland. Bodnar listed the following, among others:

• The EU (together with NATO) is a guarantee of external security and geopolitical stability “which previous generations of our countrymen could only have dreamed of”;
• the opportunity to work and live legally in any member state;
• equal access to the common market (“the most open and developed in the world”) for Polish goods and services;
• journeys without border checks;
• multi-billion-euro investments, through which the EU has “contributed to the civilisational leap of our country.”

“Poland remains the largest beneficiary of subsequent EU budgets; since joining, our country has received well over €100 billion in EU funds,” Bodnar recalled.

The Commissioner also stated that Poland’s credibility for foreign investors has increased thanks to its accession to the EU. Economic growth has accelerated, the opportunities for Polish people have increased, and the standard of living has risen significantly.

Bodnar also wrote that Poland has rapidly succeeded in developing a strong position in the Union and gained a good reputation. Poles have taken prestigious positions in the EU leadership (Jerzy Buzek, Donald Tusk), our presidency in 2011 was well received, and our initiatives, such as the Eastern Partnership, are appreciated.

The government is negative about the EU

The Commissioner also demonstrated that the government’s narrative about the Union has become inconsistent in recent weeks. On the one hand, it seems that the Prime Minister and his ministers understand the role the EU plays in fighting the consequences of the pandemic.

“Several days ago, in the Ukrainian press, the Prime Minister wrote that the epidemic has put the Union in a situation where it needs solidarity more than ever, the solidarity which is now at the centre of the European project, as its weapon in the fight against the pandemic and as a common springboard for rebuilding the common market,” Bodnar recalled.

He also cites Morawiecki’s statements given in interviews with La Repubblica, the Frankfurter Allgemeine Zeitung, El Mundo and the Financial Times, in which the Prime Minister appealed for an ambitious EU budget, more European solidarity and hope.

On the other hand, as the Commissioner wrote, some statements by government members have contained “false information or unreliable assessments.” Some of these can be considered attempts to “unfairly transfer responsibility for the difficulties caused by the epidemic crisis to EU institutions”.

“In a speech to the Sejm of the Republic of Poland, the Prime Minister stated that the EU has not yet given a single cent to fight the virus. Other members of the government spoke in a similar tone: the Minister of Digitisation, the Minister of Funds and Regional Policy. […] The Minister of Justice, in turn, even said that the EU has discredited itself during the crisis,” wrote the Commissioner.

Bodnar emphasised that in his opinion, the impression of a lack of coordination at the beginning of the epidemic does not derive from Brussels’ inactivity, but is rather the result of the member states being unprepared for this type of crisis.

“Therefore, the statements I have mentioned here may constitute violations of the citizens’ right to receive reliable public information from the state authorities (Article 61 of the Polish Constitution) and to receive messages consistent with the facts (Article 54 of the Polish Constitution)”, the CHR continued in his letter.

The right to reliable information

According to the Commissioner, Polish citizens have the right to demand that the state authorities provide them with true, up-to-date and complete information. The right to reliable information remains “in direct relation to the Constitution” with the principles of the sovereignty of the Nation (Article 4 (1) of the Constitution) and a democratic state of law (Article 2).

The government cannot mislead the sovereign (here, the citizens of Poland) because it is the sovereign that gives the government the legitimacy to exercise power. Hence, the relationship between citizens and the state must be subjective.

“True, reliable information is a condition for the conscious participation of the citizens in public life and the functioning of a democratic society,” explained the CHR.

Governments must be accountable to their citizens, but also to the Union itself, because by joining the European community, Poland undertook to do everything to promote further integration, not to sabotage it.

“In the spirit of the principle of good faith – the most basic principle of international law – [Poland – ed.] undertook to loyally cooperate with the Union, assist it in the implementation of the treaty tasks, meet its obligations under EU law, and refrain from undertaking any measures that would threaten the objectives of the Union (Article 4 (3) of the Treaty on European Union, TEU),” wrote the Commissioner.

According to Bodnar, accusing the Union of sluggishness and failing to offer support during the pandemic “does not correspond to the truth, and shapes a false image of this organisation in the public’s awareness”. Moreover, “it leads to an unjustified clash between the EU and Poland, which contradicts the obligations of membership.”

An excuse not to fulfil obligations?

Commissioner Bodnar believes the government is trying to put the blame on the EU. However, the situation which has arisen in Poland is primarily the result of deficiencies in preparations by the state to cope with the epidemic, especially in the field of health care.

He also warned that Poland should not treat the coronavirus as an excuse not to fulfil its obligations, e.g. in the field of rule of law.

“The independence of the courts and the independence of judges invariably remain requirements of EU law. The epidemic does not just turn them off,” wrote the CHR.

“The measures taken by the national governments, which have led to the serious limitation of many individual rights and freedoms, indicate all the more clearly how essential it is to guarantee effective judicial review, including the normative solutions already introduced and the acts applying the law,” he added.

Bodnar recalled that he has written to government members several times in recent weeks.

“I have highlighted the threats or violations of human rights resulting from the measures taken to prevent and combat the coronavirus epidemic,” wrote the Commissioner.

The EU’s competences

The CHR explained to PM Morawiecki that, in fact, the Union’s competences in the field of health protection are very limited. That was the will of the member states. The Prime Minister, as an expert on EU law and the co-author of a textbook on this subject, must be aware of this.

“In accordance with Art. 6 of the Treaty on the Functioning of the European Union (TFEU), in the area of the ​​protection and improvement of human health, the member states have only granted the EU the competences to carry out activities aimed at supporting, coordinating or supplementing the actions of the states,” wrote Bodnar.

Therefore, it is the members of the Union who are obliged to ensure the protection of their citizens’ health; Brussels can only help, by supporting, coordinating. This ‘complementary’ role of the EU is also discussed in Art. 168 of the TFEU. The Treaty states that the EU may issue legal acts within three ‘narrowly defined areas’:

• standards of quality, and the safety of organs and substances of human origin, blood and blood derivatives;
• veterinary and sanitary regulations directly aimed at protecting public health;
• quality and safety standards for medicinal products and medical devices;
• at the same time, the EU must respect the principles of subsidiarity and proportionality.

“In accordance with the TFEU, the EU’s action in this area boils down to supporting research into the causes of the epidemic, how it is spread and how to prevent it from spreading, to support the propagation of information and health education, and to support the monitoring of serious cross-border threats to health, issuing early warnings of such threats, and combating them,” wrote the CHR.

The Commissioner emphasised that the Union cannot undertake an autonomous health policy, and does not take responsibility for the health of the member states’ citizens. This is still the responsibility of individual countries.

EU help in practice

Bodnar also enumerated all the actions that, despite its limited competences, the EU has undertaken to assist the member states in their fight against a pandemic. These include:

• practical measures safeguarding access to essential medical equipment and medications;
• support for scientific research into vaccines, diagnostics and methods for treating Covid-19;
• assistance in returning EU citizens to their own countries;
• finally, economic and financial measures, including transfers within the framework of the EU’s structural funds; this money will also cover work on the new Union budget which will take the current crisis into account.

The Commissioner recalled that the EU has embarked on an ambitious plan to jointly develop the diagnosis, treatment and development of coronavirus vaccines, the Global Coronavirus Response. It has already supported research on vaccines, diagnostics and the treatment of COVID-19 to the tune of around €200 million.

The European Commission has also organised joint purchases of medical equipment, tests and PPE for member states. Four tenders were carried out at the beginning of the epidemic situation, in February and March 2020. As Bodnar recalled, Poland did not participate in the first two tenders.

Poland has also received an additional 120 million zloty (around €27m) to implement the e-prescription and e-advice programmes which are so important in the age of pandemics. Moreover, Polish schools have received 180 million zloty (around €41m) for computer equipment which will make it possible to conduct online lessons.

Polish people have been able to use the Civil Protection Mechanism, under which the EU made it possible for its citizens to return home after the suspension of air traffic. Participation in this programme was free.

“In total, about 60,000 EU citizens have used this programme. There were only 390 Polish citizens in this group because the Polish government only joined it after some delay, on 23 March. As a result, many citizens of our country had to bear the high cost of returning to their country on the basis of a plan organised by the government administration and Polish Airlines,” Bodnar wrote.

The CHR also recalled the EC’s numerous other initiatives; for example, an unused sum of €37 billion of EU funds was spent on purchasing medical equipment and counteracting the effects of the epidemic.

[Translated by Jim Todd]