What is currently at stake is much more than just the European Union budget and recovery fund. As a result of Germany’s intervention, the sovereignty of member states is now under threat.
Poland and Hungary, two nations very sensitive and aware of their hard-won independence, are first in line to be tested in this new power grab.
What emerged from Germany, the European Commission and the European Parliament was unacceptable . The veto had to be used to defend nations from an arbitrary rule-of-law conditionality mechanism.
The threat was highlighted at Tuesday’s conference organized in Warsaw by the Institute of Justice on the link between rule of law, the EU budget, and the future of the EU. We heard how the mechanism was in reality a stalking horse for European federalism.
According to a senior Law and Justice party (PiS) MEP, Jacek Saryusz-Wolski, Poland has made a mistake in wasting time on trying to prove Poland is rule-of-law compliant when it should have been trying to prove that it is the EU which is breaking the principle of the rule of law by violating its own treaties.
Participants were also critical of the idea proposed by Polish Deputy Prime Minister Jarosław Gowin who came back from Brussels last week arguing that it would be enough to adopt a protocol of interpretation. Experts felt that this was not enough, as such a protocol would not be equal in legal weight to the original text.
The compromise which Poland and Hungary are discussing with Germany fortunately goes further. It would take the form of a declaration by the European Council that all member states retain the rights emanating from EU treaties and that rule of law conditionality is to be limited to issues involving fraud and corruption.
German correspondent in Brussels Peter Kopern has posted a leaked copy of draft of the compromise worked out among the Berlin-Warsaw-Budapest line. According to him, this document is currently being discussed by EU member states. The key issue now is what exactly will be the legal force of such a declaration and whether it will really defend member states’ interests. According to diplomats close to the negotiations, the European Commission will be mandated to pursue the mechanism only in line with European Council conclusions and that should constrain the way it is used.
However, it must be remembered that conclusions of European Council meetings have not been interpreted as a source of law. The rule-of-law mechanism is to be a part of European law. Therefore, the emerging construct is of one legal document being counterbalanced by a political interpretation of it, albeit at the highest possible EU level.
The conclusions are to be strengthened by a pledge by all the EU’s players that this is how they perceive the rule-of-law mechanism. Another less formal settlement will be the promise that the mechanism will not be used until the European Court of Justice has ruled on its compatibility with EU treaties, a process which could take up to two years.
This means that we will not know whether this settlement would be a success or a defeat until we test the strength of the European Council’s conclusion in practice. Only then will we know whether it was worth withdrawing the veto.
Poland’s negotiators are playing for high stakes.
Every word and comma will count. A good agreement is maybe within reach, but the threat of a defeat deferred in time but fundamental and painful in its consequences remains. And all that depends on member states agreeing to swallow such a compromise in the first place.
