Europe’s next rule of law problem: Angela Merkel

Mujtaba Rahman is the head of Eurasia Group’s Europe practice and the author of POLITICO’s Beyond the Bubble column. He tweets at @Mij_Europe.

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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