On Poland it was decided not to decide

On Thursday evening in Brussels the heads of state and government of the European Union, meeting in the European Council, discussed for about two hours the recent ruling by the Polish Constitutional Court which essentially decided that Poland will no longer recognize the supremacy of European laws over Polish ones, that is, one of the founding principles of the Union.

The Council meeting was preceded by very harsh statements by some leaders, according to which the Union should have taken concrete measures against the Polish government, accused for years of having transformed Poland into a semi-authoritarian country. In the end, however, the more prudent line promoted by German Chancellor Angela Merkel prevailed. “The leaders concluded the discussion, which took place peacefully, without reaching any conclusion”, he summarized Bloomberg.

Thursday’s meeting confirmed the European Union’s difficulty in taking action against member states that violate the rule of law, including few and inefficient legal instruments available and the difficulty of bringing together 27 different states to find a single approach.

The options available to the European Union are essentially three, and they were listed by the President of the European Commission, Ursula von der Leyen both Thursday evening in the Council and Tuesday morning in a debate in the European Parliament.

The European Union could open yet another infringement procedure against Poland, even if the previous ones have so far had no or almost no consequences. Or activate article 7 of the European Union Treaty, the so-called “nuclear option”, a complex procedure to revoke Poland’s right to vote in Europe – an option considered impracticable because it would require the unanimity of the other member states. Or activate the new mechanism linking the distribution of funds from the European multiannual budget to respect for the rule of law.

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The latter was considered the hardest option, but also the most effective in the short term; Poland, like many other Eastern European countries, has a rather backward economy which largely depends on European funds.

In recent days, Dutch Prime Minister Mark Rutte he had hinted which would have asked the Council to activate the new mechanism on respect for the rule of law. Rutte also reiterated the need to continue blocking the funds of the so-called Recovery Fund to authoritarian-led countries such as Poland and Hungary, something that the Commission has been doing it for several weeks now, “Until the question of which right has priority is resolved.”

Rutte talks to journalists before the European Council meeting

Rutte also reiterated his position during the meeting, which was attended by almost all the leaders present. Some countries have agreed with Rutte, such as Ireland and Belgium. Only two leaders defended Poland: the Hungarian Prime Minister Viktor Orbán, who spoke of a “witch hunt” against the Polish government, and the Slovenian one Janez Janša, both of the far right.

– Read also: Why doesn’t the EU expel Poland?

Prime Minister Morawiecki defended his government using the same arguments as in a debate held on Tuesday in the European Parliament: in essence, he explained that it is a big misunderstanding and that in reality the Polish Constitutional Court limited itself to finding that the Court of European justice, that is the main court of the Union, is trying to broaden its sphere of competence. The Financial Times he noted that according to some sources inside the Council, Morawiecki “spoke in a much more conciliatory tone than his combative speech in the European Parliament on Tuesday”.

Most countries shared Merkel’s line, whose goal was essentially not to come to a divisive conclusion. “This is not a question that concerns only Poland, but also several other member states,” Merkel warned just before the meeting.

In a nutshell Merkel argues that on issues such as the rule of law it is better to find political compromises with semi-authoritarian countries, even if temporary and shaky, rather than fuel divisions and risk that the countries in question move further and further away from the Union. This would have both political consequences – the Eastern countries have always been included in Russia’s sphere of influence – and economic, given that they represent a market watched with interest by the main Western European countries.

On Thursday evening, several other leaders traditionally more uncompromising on respect for the rule of law supported Merkel’s line, probably to avoid having to deal with a structural problem of the European Union during a pandemic and a period of instability in the European energy market (the another major issue addressed during the Council).

The Sheet writes that Merkel was supported by both the French President Emmanuel Macron and the Italian Prime Minister Mario Draghi, as well as the President of the European Council, Charles Michel. The Financial Times note that even the Spanish Socialist Prime Minister, Pedro Sánchez, took a cautious line.

Charles Michel and Pedro Sánchez during the meeting of the Council (European Council)

Although the Commission’s idea was to find a solution in the short term, the first two options listed by Von der Leyen have not been substantially discussed, while Politico he notes that with regard to the mechanism that links the funds of the multiannual budget to the rule of law “a common approach is emerging according to which the mechanism must not be activated before the European Court of Justice expresses its legitimacy”.

For several analysts, however, it could take several months to arrive at a sentence, perhaps even a year. In the meantime, the Council is unlikely to take clearer decisions unless further developments are made.

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