BEYOND THE
BUBBLE
Europe’s next rule of law problem: Angela Merkel
The battle is no longer between Brussels and Warsaw
but between the Germans and the Dutch.
BY MUJTABA
RAHMAN
October 26,
2021 1:47 pm.
If last
week’s European Council clarified one thing, it is the horrible mess that the
European debate over Poland’s rule of law crisis has become.
The crisis
is now close to breaking point in Western Europe — with German Chancellor
Angela Merkel directly squaring off against Northern European leaders over how
to resolve the stand-off and a weak European Commission President caught in the
middle.
In the
run-up to the Council summit, it was not even clear whether Poland’s challenge
to the supremacy of EU law would feature on the leader’s agenda. European
Council President Charles Michel proposed a 10-minute session, designed to
allow Poland’s Prime Minister Mateusz Morawiecki, European Commission President
Ursula von der Leyen and Dutch Prime Minister Mark Rutte to intervene.
Senior
officials with knowledge of the deliberations say the German chancellery pushed
hard to kill this proposal. Berlin ultimately conceded to the debate as long as
it would remain “civilized,” with Merkel keen to avoid a rerun of June’s
summit, when a number of EU leaders, most notably Luxembourg’s Xavier Bettel,
challenged Hungary’s Viktor Orbán over his government’s new law banning
materials deemed to promote homosexuality from schools.
As it happens,
the issue in Poland is so controversial that every member country intervened.
Morawiecki’ s intervention at the European Parliament last week was
particularly shocking for a number of EU member nations. “He was speaking to
the EU as if it were external, as someone who is not mentally inside the EU,”
says one senior official. “The Polish threat is, ‘Give us money without
conditions so we can peacefully build an autocracy within the EU, or we will
wreck your union’.”
Unsurprisingly,
many EU leaders explicitly pushed the Commission to withhold EU recovery funds
until Warsaw introduces a series of judicial reforms that von der Leyen
outlined in her speech to the European Parliament last week. As one senior
official from a Northern European member country told me, “We were very happy
with both the length and the intensity of the debate.”
North-West
split
But
Northern Europe now finds itself lined up against a formidable opponent in the
form of Merkel, who is pushing hard for a compromise before she leaves office,
most likely in December. The outgoing chancellor remains extremely worried
about the prospect of an existential East-West rift at the heart of the EU,
which paralyzes the bloc and creates “second-tier status” for Poland and
Hungary compared to other member countries. As one senior EU official says:
“Merkel wants this resolved. She does not want to leave the union divided. This
is about her legacy.”
Northern
European member nations, led by the Hague, feel equally as strong, signaling to
von der Leyen and the chancellery that any move toward a fudged compromise —
essentially beginning a process of disbursing EU funds before Poland has taken
concrete steps to address their concerns — would kill the Commission’s
credibility on both the rule of law and the implementation of the recovery
fund. “An East-West split goes both ways,” says one official from a Northern
European member country. “We don’t want to be chased away either.”
Despite a
historically tough position on these issues, French President Emmanuel Macron
is taking a much more cautious approach this time around. Elysée sources deny
that this is because he fears it would be used against him by “sovereigntists”
in France, but everyone from Eric Zemmour and Marine Le Pen to Xavier Bertrand
and Jean-Luc Mélenchon has, in various ways, used the Polish crisis to make
ignorant comments on how the supremacy of EU law works and suggested, without
explaining how, that France should assert the primacy of its own national law
while remaining in the EU.
This
domestic context is therefore part of Macron’s “go soft” calculation. He does
not want Brussels versus Warsaw to become a huge conflict that could spill over
into the French presidential race, especially as the French electorate is also
ignorant and confused about how the EU works and is ripe for exploitation by
distorted, populist arguments, which are difficult to counter in soundbites.
Macron’s
stance has not gone down well in Northern Europe, however. As one senior EU
official says: “The French are not playing a large role. They are looking out
for their own interests — as France always does.”
Tug of war
In the
aftermath of the leaders’ debate, Northern European member countries are now
pushing the Commission to introduce a package of measures comprising three
legs: the abolition of the government’s controversial “disciplinary chamber”
prior to any disbursements being made to Warsaw; an infringement procedure by
the Commission, challenging Poland’s position on the supremacy of EU law and
the activation of the EU’s new rule of law mechanism.
Merkel,
however, is leaning hard on the Commission to be softer. Rather than stipulate
that the abolition of the disciplinary chamber is a precondition for EU funds,
the chancellery is urging a more lenient approach, for “Poland to indicate or
take positive steps to move toward abolition,” says a senior EU official with
knowledge of the talks — a substantial lowering of the threshold that Warsaw
would have to meet. Von der Leyen was also clear with EU leaders last week that
she will not activate the EU’s new rule of law mechanism until she has a final
opinion from the European Court of Justice — regardless of the pressure she
will face from the Parliament.
If Merkel
wins this tug-of-war, senior EU sources are clear that the Netherlands and a
contingent of other Northern European member countries will vote against the
Commission’s recommendation to disburse billions of euros to Warsaw.
While the
legal basis for that decision is qualified majority voting — meaning the Hague
would not have a veto —the political ramifications of such a move would be
unprecedented. It would effectively kill the prospect of entrenching the EU’s
coronavirus recovery fund as a permanent feature of policymaking or of further
“fiscal capacity” over the medium term; it would also negatively impact
Northern Europe’s willingness to substantively reform the EU’s fiscal rules,
known as the Stability and Growth Pact — a process that officially began last
week.
Merkel’s
mealymouthed statements have already negatively impacted the incentives for
Poland and Hungary to comply, and the result of her appeasement is, naturally,
likely to be more defiance. On Thursday last week, Orbán insisted Hungary would
resolutely “stand beside” Poland. And as one senior Polish source says of the
Polish President: “Kaczynski only heels when he has water up to his nostrils.
He is Russian in that sense.”
Although
Merkel has barely a month left in office and is likely to be replaced by a
government comprising the Social Democrats, Greens and Liberals, which will be
much stronger on rule of law issues than she has been, senior EU officials
caution that her weight and impact on the debate should not be discounted.
“She may be
a lame duck, but she is still Angela Merkel, and she still has a very strong
voice in this debate,” says one senior EU official. “Her impact should not be
underestimated.” A Northern European official puts it more directly: “Forget
Merkel. The question is whether the Commission wants to side with these maniacs
or democrats.”
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