EU leaders are kicking pressing issues into the long grass

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Copyright: European Council

By Dr. Jan Werts, since 1976 a journalist and publicist based in Brussels, including as a correspondent for Dutch publication Haagsche Courant. 

Last week’s European Council on in Brussels failed to reach a significant decision, due to the divisions among EU leaders. Still, sensitive issues such as the meaning of the rule of law in the EU, the increased flow of migrants and rising energy prices dominated talks. Furthermore, the departure of outgoing Chancellor Angela Merkel, after sixteen years in office, raises the question of how the EU will continue without her.

Poland obstructing

Through various rulings of the Court of Justice of the EU since 1964, mentioned in a binding annex to the Lisbon Treaty (2009), EU law takes precedence over national regulations, including constitutions. This concerns the treaties (TEU and TFEU) and the approximately 100,000 pages of EU legislation.

By establishing the EU (then called the EEC), the Member States created an independent legal order to which they are bound.

The Polish Government is claiming, on the basis of a recent ruling by its Constitutional Court, that Polish legislation – in this case on the appointment of judges in Poland – takes precedence over European law.

The highest Polish judges thereby question the jurisdiction of the EU Court in Luxembourg. According to Article 19 TEU, the Court ensures respect for the law in the interpretation and application of the Treaties.

In Poland, the members of the Constitutional Court are appointed by politicians. For the EU, this is the biggest problem. “This decision of the Polish Court calls into question the very basis of the European Union,” Commission President Ursula von der Leyen has said. The path Poland has chosen is at odds with the separation of powers, the famous trias politica of political theorist Charles-Louis Montesquieu (1689-1755).

Uniform application of the rules democratically agreed upon in Brussels, combined with the jurisprudence of the EU Court ensure equal treatment of citizens and companies in all EU countries. If every government (or judge) would get the power to interpret the European rules themselves, this guarantee will disappear.

Poland (and also Hungary) have been at odds with the EU for years about the functioning of the judiciary there. The supervision of this lies with the European Commission. Under the control of the Court, it shall supervise the application of Union law, according to Article 17 TEU.

Some rulings by Polish courts have bothered the conservative-nationalist government in Warsaw. The government therefore installed a disciplinary chamber to deprive such judges of their powers.

At the same time, some laws in Poland allow the Minister of Justice to intervene in court cases. It is expected that Poland will give in and that the disciplinary chamber will soon be abolished. However, this will not solve the problems.

Various solutions

In a speech to the European Parliament, EU Commission President von der Leyen outlined the options to bring the Poles back into line.

One option is to suspend their voting rights in the context of decision making by the EU Council of Ministers. This as a punishment for a serious violation of the rule of law and democracy. Article 7 TEU enables this. Dutch Prime Minister Mark Rutte has urged to use this Article 7.

However, twenty national leaders need to agree. According to an insider at the Council of Ministers, it is uncertain whether this number will be met. The Visegrád countries (Poland, the Czech Republic, Hungary and Slovakia) are expected not to support this. Other Eastern European countries (such as Bulgaria and Slovenia) and also some Baltic states will abstain. This then counts as a negative vote.

Continuing the procedure and eventually losing in the (European) Council would absolve the Poles (certainly in their eyes). This makes the use of Article 7 instrument risky.

A second option is to “drain Poland”. To refuse payments from the EU Recovery Fund meant to help cope with the effects of the COVID-19 crisis. Poland is soon expecting the massive sum of 36 billion euro (two-thirds of it as a grant). Encouraged by the Dutch Lower House, Dutch PM Rutte is demanding to block these payments. The European Commission decides on this, not the European Council.

Should this happen, Poland is likely to use its weight. Together with Hungary and other supporters, they could paralyse the Council of Ministers. In the Financial Times of 25 October, Polish Prime Minister Mateusz Morawiecki stated he will ‘use all available weapons and vetoes if necessary’. He would reportedly block the climate talks (the Green Deal).

Such large-scale resistance is not unique. In 1996, the United Kingdom blocked the decision-making process for three months due to dissatisfaction with the European Council’s stance on the BSE ‘mad cow disease’ issue. Earlier, France did the same for six months, in a matter of principle: the infamous ’empty chair crisis of 1965′.

A third option is to “postpone the Polish issue. EU Justice Commissioner Didier Reynders has stated that the Commission would ‘use all means to ensure that Poland respects the EU treaty’. He thereby announced ‘swift action’. In the European Council, however, German Chancellor Angela Merkel advocated an alternative approach. She believes that the fundamental question of the scope of European competences requires a broader discussion.

Merkel enjoys the support here of French President Emmanuel Macron and Italian leader Mario Draghi. They are inclined to try to reach an agreement through talking with the Poles. “Remember that a cascade of legal battles really will not solve the rule of law problem,” Merkel has warned the other heads of government, the Commission and the combative European Parliament.

‘The Chancellor’s patience stems from a mix of geopolitical and economic interests, overpowered by historical guilt’, Peter Giesen argued in De Volkskrant of 22 October. In 1939 Nazi Germany invaded Poland, murdering a large part of the intelligentsia and dividing the country up, in cahoots with the Soviet Union. After the war, Poland became a satellite state of the Soviet Union.

In the light of history, it is difficult for Germany to lecture the Poles. Moreover, Germany has major economic interests in Poland and the other Eastern European countries.

Prime Minister Morawiecki is obviously attempting to gain time. He says he is open to dialogue. ‘We fear an imminent transformation of the EU – an alliance of independent states – into an organisation run by the EU institutions over which citizens no longer have any control,’ Morawiecki told his fellow heads of government, adding: ‘The EU is not a state. The 27 member states are the ones to decide which powers to grant ‘Brussels’. The Court, however, is quietly performing a U-turn. The EU will not fall apart if we recognise that our legal systems can sometimes differ’.

The Polish PM was supported by Hungarian PM Viktor Orbán, who denounced the ‘witch hunt’ against Poland, ‘a country with fair elections’. According to Orbán, ‘Brussels talks about Poland and Hungary and treats us as if we were enemies’.

Not mentioned at the EU Summit was the option to buy time until the next general elections in Poland, in 2023 at the latest. If the centre-left, led by opposition candidate Donald Tusk, wins, the problem will be largely solved. As President of the European Council (2014-2019) Tusk repeatedly criticised the government in Warsaw.

A controversial EU Court

An interesting point is that Poland is not on its own. The absolute primacy of EU law has also been questioned elsewhere. There is, first of all, the departure of the British from the EU, which revolved around this matter, under the slogan ‘take back control’. Later, the Bundesverfassungsgericht in Germany questioned the European Central Bank’s buy-back programme for countries with unbearable debts. The highest German court did this even after the EU court had declared the ECB competent in this regard.

The German Constitutional Court has often wondered whether the top EU-Court in Luxembourg always takes precedence in matters of European competence. Former Bundespresident, Christian Democrat Roman Herzog (1994-1999), previously also a President of the German Constitutional Court, is among the ones having taken a stand against the EU Court.

In 2007, he pointed out that it tended to surreptitiously extend the powers of the EU by means of its judgments. An example is criminal law, which is not the responsibility of the EU, but which the Court did occupy itself with.

In addition, the French Council of State has already ignored a European judgment. Presidential candidate Michel Barnier, member of the Christian Democratic LR, promised the French a referendum on migrants. ‘For me, the result will then take precedence over a ruling from the EU Court,’ he said. Already in June 2006, Dutch daily NRC Handelsblad published a page-long report on ‘The creeping power grab of the European Court of Justice’. The newspaper called the Luxembourg judges ‘politicians in robes’.

An impending schism

Under pressure from the European Parliament, a generally applicable – but however specifically directed against Poland and Hungary – rule of law mechanism was introduced last year. This links the payment of EU subsidies to respect for the rule of law. Poland and Hungary are now demanding the EU Court to declare it illegal. It is funny to witness both suddenly recognizing the Court as the ultimate authority.

Commission President Von der Leyen will wait with the withholding of subsidies until the EU Court has ruled. In the meantime, guidelines have yet to be issued on exactly how to punish the sinners. Legally, this is not as simple as the proponents think.

Refusing such payments may be a mistake. The use of the rule of law mechanism requires that the financial interests of the EU are at risk. That is hard to demonstrate here. Poland has actually built up a good reputation when it comes to the use of European money’, at least according to Jim Cloos, recently retired as Deputy Secretary General of the European Council, in an opinion for think tank TEPSA. For more than a quarter of a century, Cloos prepared the conclusions of the European Council. He is therefore considered an absolute insider.

The European Parliament is reacting furiously to this delay. An unusual push by the European Parliament to force the Commission into action through the Court is now taking shape. In short, an unprecedented schism is looming. This is all the more true now that outgoing bridge-builder Merkel has left the European Council.

How about the rule of law in the Netherlands?

In June, Dutch PM Mark Rutte lashed out against his Hungarian colleague Viktor Orbán over Hungary’s anti-LGBT law. So far, it was unseen in the European Council for a head of government to publicly attack a colleague.

The foreign media consider Rutte to be the leading campaigner of the EU countries against Poland and Hungary. According to sources in The Hague, the Prime Minister thinks he can score domestic points with this. However, is the Dutch rule of law situation today really that flawless?

A mere take at the “benefits affair” that has been dragging on for years should raise some doubts. This involves 47,000 parents that were falsely accused of child benefits fraud by the Dutch tax administration. Neither the Dutch government nor the responsible authorities seem to get a grip on this. According to the Dutch statistical office, more than 1100 children are estimated to have been forcibly removed from their parental homes after the parents ended up in financial trouble due to the big sums of money they were asked to pay back. Upon his arrival in Brussels, Rutte said that he found this ‘terrible news’. ‘Since this week, we know that the Dutch state has also robbed children’, columnist Zihni Õzdil commented in Elsevier Weekblad of 23 October.

Let’s maybe also take the fact that for years now, the Netherlands has allowed multinational companies to avoid tens of billions in profit tax, through clever constructions elsewhere.

Or what about the description of the Netherlands as a ‘narco-state’ by German magazine Der Spiegel, on 16 October? The Netherlands is described as a country that has surrendered to drugs, where gangs of ruthless cocaine dealers terrorise working-class neighbourhoods. As a result, there was the murder of lawyer Dirk Wiersum and investigative journalist Peter R. de Vries, according to the weekly. The Netherlands is also described as a country that, according to the Belgian quality newspaper DE TIJD, ‘has gone off the rails’.

Divisions over energy

At last week’s Summit, after four long hours of debating the stormy energy market, EU leaders could not agree a deal on the issue of rising prices. The 27 governments are divided mainly when it comes to the long-term approach. This is concealed by the fact that the final conclusions refer to the different ‘specific situations’ of the member states. For the time being, each government is taking short-term measures. The divisions were confirmed at the Energy Council in Luxembourg this week, on 26 October.

Not included in the written European Council conclusions: The aspirations of some leaders to use nuclear energy, of others to blame the Russians as suppliers; to jointly buy gas stocks and store reserves; or to weaken the Green Deal.

Barbed wire after all?

Talks on a uniform asylum and migration approach have been at a standstill for five years, due to mutual disagreement. This discord has now resulted in fierce statements. Twelve countries, led by Denmark, are demanding EU financial support to close the Schengen borders through barricades.

Until recently, this was a taboo – except for Hungary. ‘No European money for rolling out barbed wire or building walls,’ von der Leyen responded, however.

The affected Eastern European countries, the Baltic States and Greece are now busy sealing their borders with barbed wire. ‘We continue to call for financial support for these countries’, the Austrian and Danish leaders said, among others.

What was decided is that the EU will release funds for third countries willing to receive refugees. There will be an eight-point plan to assist the countries of origin and the countries they pass by. When these countries are legally obliged to take back their inhabitants, little comes of it. Once migrants arrive in the EU, they are often able to stay there illegally. According to experts, this acts as a “pull factor” for migration.

Belarus, which is hostile to the EU, is currently channelling thousands of migrants from countries such as Afghanistan, Iraq and Syria to the EU via neighbouring Poland, Latvia and Lithuania. From there, they move to those contries that are attractive to migrants: especially Germany, but also the Netherlands. Belarus can expect new EU sanctions soon.

Merkel: A compromise machine

Since December 2005, German Chancellor Merkel attended not less than 107 European Councils. She will soon make way for SPD politician Olaf Scholz. The German chancellor leaves a void that her successor won’t be able to fill immediately.

‘The European Council without Angela Merkel is like Rome without the Vatican. Or Paris without the Eiffel Tower’, said President Charles Michel. Rutte praised her great modesty, his Luxembourg colleague Xavier Bettel called “Frau Merkel” “eine Kompromissmachine”.

As soon as an issue got stuck, Merkel would make a ‘suitable compromise proposal’. Her assessment of what was feasible combined with Germany’s supremacy made Merkel the “Chancellor of the Free World”, according to her biographer Ralph Bollmann.

Even former US President Barack Obama issued a video for an eulogy. ‘I found it quite emotional when she left the room for the last time after our standing ovation’, Rutte commented. The outgoing chancellor magnanimously acknowledged that she had ‘left a series of unsolved problems behind’.

A “core EU” already exists

What will happen to the EU after Chancellor Merkel’s departure? That is the question of the day in Brussels. Will there be a kickstart now that France, with its ambitious president Macron, is taking up the EU presidency from January on? Or will Poland and Hungary unleash stagnation?

‘Watch out for a ‘Core EU’ after Merkel’, Clingendael researcher René Cuperus warned in Dutch daily NRC of 25 September, predicting that Germany will change its geopolitical course, after the change of power. Together with France, he thinks it will strive for majority decision-making in foreign policy. He considers Merkel’s approach of “keeping Europe together” to be broken, predicting that a “European Core Group”, an avant-garde, under German-French leadership, will emerge. He thinks the “Chefsache” approach (with the European Council as the pivot) will be even more dominant after the Chancellor’s departure. Is the Netherlands prepared for these changes in direction? It really doesn’t look like it, Cuperus warns.

Some comments are in order here. France and (to a lesser extent) Germany have been playing on majority decision-making in foreign policy for decades. Such a step, however, requires unanimity among the 27 Member States. This is totally unfeasible, also in the near future.

Then there is the expectation that ‘Europe will become more about Chefsache’. Since the rejection of the European Constitution in 2005, the EU has been plagued by not less than ten major crises. Think of the imminent breakup of the eurozone (in 2015) or the asylum and migrant crisis of 2016 with the EU-Turkey Deal. All of these crises were handled by the European Council, through the “Chefsache” approach. It’s hard to think how much more this approach can dominate.

Also, the prediction that we may move to a ‘core EU’ arrangement. European cooperation has been permeated with attempts to achieve this since the 1960s. Time after time, these attempts failed. The large countries do not give their consent and the many smaller countries are unanimously opposed. No national leader wants to go to the European Council as a second-class member. The Commission and the European Parliament are also against a ‘club within the club’.

There are many occasions where such attempts have failed. The Directoire at the time of President de Gaulle. After that, the idea of a ‘two-speed’ Europe. Then, under the banner of flexibility, the ‘Europe à la carte’ and the ‘Europe à géométrie variable’. Meanwhile, there was the ‘Europe of concentric circles’ and ‘continental Europe’.

France and Germany have long ago resolved the lack of a driving force at the EU level. They put their heads together before every European Council. Thanks to their collective dominance, a ‘core EU’ already exists, as witnessed by the course of almost every European summit.

After the departure of the United Kingdom, a larger ‘Core EU’ is completely out of the question. In short, the Netherlands should not worry whether it ‘can afford to stay outside such a “Core Europe”.  

Conclusion

There was no progress at last week’s European Council on the main topics of Poland, migration and energy prices. With Merkel leaving and the upcoming presidential elections in France, a breakthrough was also not expected. Given the growing stream of migrants, combined with the threat of electricity or gas blackouts when it’s extremely cold, it is hard to explain to citizens that there was zero progress.

It is significant that apart from the Commission, Germany, France and Italy – the big countries – are hesitating to tackle Poland now. No recommendation by the European Council to the Commission to do this, something which Rutte and the European Parliament have advocated, was agreed.

Therefore, Poland and Hungary, with the silent support of their neighbours, have managed to kick the matter of the rule of law problem into the long grass. Ultimately, however, there may be a crisis of authority about who has the last word in the EU.

Originally published in Dutch, by Europa-nu.nl

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