Warsaw and Brussels wage no-win battle over rule of law

There’s a dirty not-so-secret truth about the EU’s fight with Poland over the rule of law that almost no one in the EU institutions wants to admit aloud: It’s unwinnable.

And perhaps the only thing that makes that bearable, especially for European Commission officials dealing with the issue, is a parallel truth: Poland can’t win either.

The legal remedies available to the Commission, including a new, yet-to-be-triggered enforcement mechanism that could restrict the disbursal of EU budget funds, are insufficient — limited, time-consuming, cumbersome, impossible to carry out, or all of the above. But the political reality is that the EU cannot afford to go to war with one of its own member countries without putting its entire agenda in danger of being blocked, given that all crucial policy decisions require unanimity.

For the Polish government, whose citizens overwhelmingly still support membership of the EU, there are inherent risks in becoming a pariah within the club. The country’s coronavirus recovery plan, including €23.9 billion in grants, is already being held up over the rule-of-law concerns. And so long as Poland defies the EU institutions, or is perceived to be doing so, it will face a blizzard of bureaucratic obstacles and entanglements, as well as a barrage of criticism, all of which are already causing domestic tumult.  

The maddening, bitter, and worsening feud between Brussels and Warsaw was on vivid display again Tuesday in the European Parliament plenary in Strasbourg where Commission President Ursula von der Leyen squared off against Polish Prime Minister Mateusz Morawiecki to debate a recent ruling by the Polish Constitutional Tribunal — itself regarded as illegitimate by EU institutions and experts — that declared primacy for Poland’s constitution over the EU treaties.

In a forceful speech, von der Leyen captured the fury and dismay of many in Brussels and in other EU capitals, who have grown exasperated at the erosion of democratic norms in Poland, and also in Hungary, particularly steps by the Polish government that have encroached on judicial independence.

“This ruling calls into question the foundations of the European Union,” von der Leyen said. “It is a direct challenge to the unity of the European legal order. Only a common legal order provides equal rights, legal certainty, mutual trust between member states and therefore common policies. This is the first time ever that a court of a member state finds that the EU Treaties are incompatible with the national constitution.”

In response, Morawiecki accused Brussels of discriminating against Poland and of being arbitrary in how it applies rules. He also denied any wrongdoing by Warsaw and said it was the EU that was overstepping its authority. “If you want to make Europe into a nationless superstate, first gain the consent of all European countries and societies for this,” Morawiecki sniped. “I will repeat once again: The supreme law of the Republic of Poland is the constitution.”

He also tried to insist that the recent constitutional court ruling was no reason for concern in Brussels. “The Polish Tribunal, also in the recent ruling, has never stated that the provisions of the Treaty on the Union are wholly inconsistent with the Polish constitution,” he said. “On the contrary, Poland fully respects the treaties.”

Few observers outside Poland believe that. And on Thursday, the fight will shift to another venue: the European Council summit, where some EU leaders, including Dutch Prime Minister Mark Rutte, have vowed to raise a ruckus over the Polish ruling. But as in Parliament on Tuesday, the end result will be inconclusive — a deepening of ill-will and no end of the fight in sight.

Rutte was among the heads of state and government to champion the new rule-of-law enforcement mechanism during the debate, and adoption, of the EU’s landmark budget-and-recovery package last year. But while many members of the European Parliament are clamoring for the Commission to trigger the mechanism, von der Leyen and her team have refrained from doing so.

Hungary and Poland have challenged the legality of the rule-of-law mechanism, and as part of a political deal, EU leaders asked the Commission to hold off on triggering it, until there is a ruling from the Court of Justice of the EU. The ruling has not yet been issued, and it’s still unclear if it will come even this year.

For all these reasons, there’s a strong likelihood that the standoff will be resolved only if voters opt for a change in government. Hungary is due to hold a general election this spring. And in Poland, former Prime Minister and European Council President Donald Tusk has returned home to lead a new push by opposition forces against the ruling Law and Justice Party.

Dialogue and delay

Publicly, von der Leyen insists that she is still seeking dialogue with Warsaw — a position also endorsed last week by the outgoing German chancellor, Angela Merkel.

But privately, Commission officials acknowledge that the mechanism, if triggered, would take months to put into action, and its ultimate coercive effect is far from certain.

The Commission, concerned about the possible implications of taking assertive action, has sent mixed messages about its plans. During debate of her State of the Union speech in September, von der Leyen said the mechanism would be triggered in the coming weeks. Over the weekend, Justice Commissioner Didier Reynders told Bloomberg it would be used within days or weeks.

But on Tuesday, officials voiced no certainty. Commission Vice President Věra Jourová told reporters that she would “not specify” the precise timeline for triggering the mechanism “because we are discussing.”

“Let’s not forget that the conditionality [measure] is something which is new in the legal order, and which requires very thorough analysis of the situation in each member state,” Jourová said, adding: “I don’t want to also push my colleagues who are working on this analysis to speed up, but of course we are aware of the cause to act urgently.”

Reynders, meanwhile, reiterated in a news conference that the Commission wants to start the process, but then qualified those comments saying, “we are open to a real dialogue.” Reynders nonetheless expressed confidence that the Commission is operating from a position of strength. “I’m sure that we have a good set of instruments to act,” he said.

In the meantime, Poland has already made clear that it would use its veto power in the Council for leverage in the rule-of-law fight. On Tuesday, as the debate played out in Parliament, Polish officials publicly proposed postponing a crucial component of the EU’s Fit for 55 initiative against climate change, saying the program should be suspended in light of recent spikes in energy prices.

Some critics say the Commission simply refuses to muster the political will to hold Poland and other rebel capitals accountable.

For months, MEPs have been pushing for the Parliament to take legal action to force the Commission to trigger the mechanism. Opponents of such a move say a battle between the EU institutions would only undermine credibility and delight the bloc’s opponents in Warsaw.

While the main provision in the EU treaties for dealing with rule-of-law violations, known as Article 7, requires unanimity of all member countries, the new mechanism can be activated with the backing of just a qualified majority.

The mechanism, officially called “general regime of conditionality for the protection of the Union budget,” allows for the bloc to suspend payments to member countries.

The process is far from quick: It could take between five and eight months from the time of the first formal written notification until a decision is made, and the Commission appears willing to drag out the timeline even further, by considering asking member countries for information before even issuing a formal notification.

The regulation — the product of intense negotiations and political compromises — is written in a narrow way, with a high threshold for funds to actually be withheld.

Moreover, any action proposed must be “proportionate.”

Critics of the Commission say that von der Leyen could have triggered the rule-of-law mechanism against Poland as soon as it was legally available, at the start of this year, and that if she had done so, budget funds might already be blocked — sending an unequivocal message to Warsaw and Polish citizens.

But, in his speech to Parliament on Tuesday, Morawiecki argued that EU officials and leaders of other EU nations are already trying to strongarm Poland.

“I reject the language of threats, hazing and coercion,” he said. “I do not agree to politicians blackmailing and threatening Poland. I do not agree [for] blackmail to become a method of conducting policy towards a member state. That’s not how democracies do things.”

But the problem seems precisely that the EU has no way to force Poland’s hand. The Article 7 process is blocked, not least because of a mutual-defense pact between Warsaw and Budapest. And as Morawiecki also said in his speech, Poland is not planning to follow the U.K.’s model and quit the EU.

“We are here, we belong here and we are not going anywhere,” he said.

The same could be said for the rule-of-law fight.