Is Turów mine case a loss for the EU Court of Justice?

21 May, 2021 decision of the vice-president of the EU Court of Justice regarding the Turów mine has stirred rightful criticism in Poland. The judge’s arguments and the radical decision she had made raise doubts. These may contribute to a further reduction of the authority of the CJEU in Poland. The case also proves that the mine itself – but also the EU climate and energy policy – has accrued (and will continue to accrue) many conflicts, which spoil relations between neighbors. In this situation, much depends on the more systematic work of the Polish administration, which should aim to defuse future conflicts in time so that they are not too costly for strategic relations within the Visegrad Group and the Polish taxpayer.

A decision no one expected

The conflict around the lignite mine in Turów has been going on for at least several months. Despite talks with the Czech party, the country’s government has filed the case to the European Commission on September 30, 2020, recognizing that Poland had committed several violations of EU law. In December 2020, the Commission issued a reasoned  opinion in which it agreed with the Czechs and concluded that Poland had breached EU law – in particular, that the extension of the license for lignite mining by the Turów mine operator in 2019 took place without an environmental impact assessment, which was in line with the provisions of Polish law, but, in the Commission’s opinion, breached the EU directive on the assessment of the environmental impact of certain public and private projects. As expected, the Commission defended the principle of supremacy of European law over national law.

Based on the Commission’s opinion – and recognizing that Poland had breached EU law – the Czech Republic filed a complaint in February 2021 with the Court of Justice of the EU for failure to fulfill the obligations of a member state. It is rare for a member state to file a complaint against another for breach of EU membership obligations. This has only happened nine times in the Court’s entire history. This shows that the Czech government was strongly determined to file a complaint.

The government in Prague complained primarily about the damage resulting from the declining groundwater level and the lack of drinking water supply to the population in the border areas as a result of the activities carried out by the Polish mine. Prague’s determination might have resulted from the inability to reach a settlement with the Polish side to fully secure Czech interests.

In addition, under interim measure proceedings, the Czechs asked the Court to order Poland to stop mining lignite in the Turów mine immediately. On May 21, the Spanish judge Rosario Silva de Lapuerta made a one-person decision ordering the immediate cessation of lignite mining in the Turów mine until the CJEU judgment ending case C-121/21 is announced.

V4 community just on paper?

The Czechs brought the case to the CJEU, as well as a request for interim measures by the EU tribunal, despite cooperation with Poland within the Visegrad Group (V4) and the Three Seas Initiative. Cooperation in Central Europe did not resolve the conflict around Turów any easier. The desire to ensure access to water for their citizens and to protect the natural environment was their primary, formally declared goal.

The broader context of other lignite mines in the vicinity, both Czech and German, is just as important.

At the time of pressure resulting from the EU climate policy, the stakes involve the length of operation of individual mines and thus maintaining their employment. This is an important aspect of the rivalry between Poland, the Czech Republic and Germany. The point is not only to maintain one’s mines and nearby power plants but also to make money by selling energy to neighbors in the event of possible shortages in local and regional energy grids.

It is worth recalling that there are nine large lignite mines in the vicinity of the Turów mine, both on the Czech and German sides. All, except one, are larger than the Polish mine. Notably, the share of lignite in the so-called energy mix in the Czech Republic and Germany is larger than in Poland.

This behind-the-scenes rivalry can also be part of political campaigns, as the interests of thousands of voters are at stake. Given the economic rivalry and electoral interests, the possible deterioration of relations between the Central European countries may be a price worth paying for the Czech authorities – all the more so as the side primarily more interested in this cooperation is Warsaw. For Polish conservative post-2015 governments the said cooperation was of strategic importance and was developed on many levels. Prague, on the other hand, has had reservations about it for quite some time. Although they support those V4 initiatives that are beneficial to them, they avoid supporting e.g. Hungary and Poland regarding the rule of law.

Berlin, on the other hand, would be satisfied with the deterioration of Polish-Czech relations, which is why the conflict around Turów may suit Germany not only for economic but also geopolitical reasons. Germany’s reluctance to cooperate within the V4 or with the Three Seas Initiative stems from the fear of the region’s autonomy being too strong, and hence them losing their influence, so far resulting from the political and economic asymmetry that powerful Germany has over individual countries in the region. Energy policy is one of the areas in which Berlin is trying to break up the cooperation between Central European states. One example was the attempts to provide Gazprom with most of the OPAL gas pipeline’s transmission capacity, and then encouraging the Czech Republic and Slovakia to connect to this gas pipeline and receive Russian gas from the expanded Nord Stream pipeline.

Therefore, it was a good thing that the Polish government has decided to solve the problem quickly in direct negotiations with Prague. The objective was to sign a bilateral agreement that would give Czechs guarantees that the negative effects they fear would be mitigated and would lead to the withdrawal of the complaint at the CJEU.

The anticipated investments would cost EUR 45 million. This amount will be covered by PGE (owner of the Turów mine), Polish local governments and the state budget. It is worth bearing these costs in the name of good neighborly relations with Prague and strengthening cooperation in Central Europe. Nevertheless, there are still doubts as to whether equally decisive steps should have been taken earlier before the case was filed to the CJEU.

Catastrophic consequences

In the opinion of, among others Tomasz Pietryga, the decision of the Spanish judge in the CJEU was „radical”, „terrifying” even, as closing down the mine overnight would expose the nearby power plant to serious consequences, leading to „the socio-economic decline of the entire region”. Polish lawyers tried to show Judge Rosario Silva de Lapuerta the catastrophic consequences of such a decision in the proceedings before the Tribunal.

They argued that it might contribute not only to an increased threat to energy security and cause serious social effects but also presented the negative environmental effects of the decision. A sudden halting of coal mining would disturb the existing state of environmental balance in the mine and would be an obstacle to securing the excavation for its liquidation and rehabilitation.

In particular, firstly, failure to drain the mine would cause its uncontrolled flooding, which would initiate unfavorable physicochemical processes. Secondly, the halting of protective mining works would result in the risk of landslides. Thirdly, a sudden halt of mining activities would increase the likelihood of mining tremors, fires and uncontrolled gas emissions in the rock mass.

Moreover, the closure of the Turów power plant resulting from the lack of raw material supply would drastically worsen the power balance in the Polish power grid, which would mean a decrease in electricity production and a significant financial loss.

The production of electricity by this power plant in 2021 was to cover about 4.5% of the electricity demand in Poland. A shutdown of the power plant would pose a threat to the security of the electricity supply for around 3.7 million households. Shutting down this mine and power plant would directly result in the loss of approximately 5,000 jobs and indirectly a further 10,000. Most of the damages of a social nature could not be covered by EU funds, as suggested by Czech lawyers.

Judge Rosario Silva de Lapuerta rejected the arguments presented by the Poles. She concluded that the work to protect the environment could be carried out even if lignite mining was ceased. It is unknown who would bear the costs of such activities since coal production would be stopped. It will be difficult to pursue investments to protect the environment and the groundwater level in the Czech Republic by a non-profit mine and a company suffering high losses.

In search of impartiality

The judge of the Tribunal also found that the issue of security threats is best solved by importing energy from abroad or increasing energy production by other Polish power plants. This argument is certainly beneficial to the interests of the nearby German and Czech power plants.

For example, it is consistent with the proposals of German diplomats, who have been encouraging Poland for a long time to close down its mines and coal-fired power plants on the one hand, and on the other to abandon the construction of a nuclear power plant. The resulting energy shortage problems should be solved by purchasing raw materials or energy in Germany, preferably from the surplus of gas supplied through the second Nord Stream line. This way, the judge of the CJEU (consciously or not) supported Berlin’s arguments.

As regards the social consequences, de Lapuerta stated that the loss of jobs for employees of the Turów mine and power plant and of those employed by subcontracting companies was, in principle, only financial damage. It cannot be considered irreversible either, because at least in theory, the final judgment of the Tribunal (which is to be issued in several months) may turn out in favor of Poland.

Such an approach is not only unconvincing but also proves a lack of social sensitivity. It may also result from political bias consisting either in excessive preference for the arguments of the Czech side, or dislike of the Polish government.

Judge de Lapuerta ignored the Polish arguments regarding environmental protection, energy security and socio-economic issues, and did not take into account the regional context, namely, the strong competition between lignite mines and power plants in Poland, Germany and the Czech Republic.

As noted by Prof. Waldemar Gontarski, de Lapuerta preferred the protection of the natural environment and human health over energy security of the state and socio-economic interests. She selectively accepted arguments concerning environmental protection, valuing the Czech arguments more than the Polish ones. Moreover, it is difficult to see how its „Solomonic” solution would help to solve the problems resulting from the risk to the environment and health of those most affected, while it could contribute to further problems, including environmental ones.

It is doubtful that through this decision, de Lapuerta contributed to the authority of the CJEU since the Polish government was almost certainly bound not to respect the provision in question. Moreover, it should be expected that this will only encourage politicians to raise the need to verify the judgments of the CJEU by the Polish Constitutional Tribunal. This undermines the argumentation of EU courts, according to which European law prevails over national law, even the constitutional one. Opponents of this approach in the Member States have for years questioned the superiority of EU law and CJEU rulings over national constitutions and judgments of national constitutional courts. There are also many such voices in Poland, and the more they are legitimized by Polish interests, related e.g. to state security and employment of thousands of Polish citizens, the stronger they will reverberate.

Polish version is available here.