EU Weekly | The Polish Saga Continues
Also — Sanctions, Hungary, Denmark, Croatia, Food Aid, Meta, Environment
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The Polish Saga, Continued
On 2 June, the day after the European Commission gave a “positive assessment of Poland’s recovery and resilience plan”, European Commission President Ursula von der Leyen visited Warsaw to green light the disbursal to Poland of 36 billion euros as part of the Recovery and Resilience Facility (RRF). Not everyone in Brussels is happy with the move.
CONTEXT • Poland is entitled to 23,9 billion euros in grants and 11,5 billion euros in loans as part of the EU’s Covid-19 recovery plan, Next Generation EU. The money had been withheld because of concerns in Brussels regarding the independence of the Polish judiciary. **
The EU’s top court even imposed a one million euros a day penalty payment last October, as long as Poland did not disband a controversial Disciplinary Chamber which allowed the conservative government to exclude judges for disciplinary motives based on the content of their decisions or their referral of cases to the Court of justice.
Although the funds were withheld, the European Commission stopped short of triggering the Conditionality Mechanism, which allows it to block EU funds when similar concerns arise. The Conditionality Mechanism was triggered against Hungary, but the Commission has shown a marked reluctance to do the same for Poland, a country that has received millions of Ukrainian refugees and showed some goodwill in the rule-of-law spart.
Last week, Poland’s lower house passed a law that abolished the controversial Disciplinary Chamber. It remains to be seen whether the law will pass in the upper chamber, which is currently controlled by the opposition. The party voted against the bill in the lower chamber voted against the bill, which it considered was ‘cosmetic’.
NOT SO FAST • The money is not in Poland’s wallet yet. The Commissionproposal will now be considered by the Council of the EU The Council, which is made up of ministers from the EU’s 27 Member States, l has four weeks to adopt the Commission’s proposal to accept Poland’s National Recovery and Resilience Plan. The vote will take place using qualified majority.
STRINGS ATTACHED • The Commission insists that the money is conditional on Poland reaching rule-of-law targets, which include creating an ”independent, impartial” new court to judge judges, ruling out disciplinary liability for judges who choose to refer cases to the Court of justice of the EU or for the content of their decisions, strengthening procedural rights of parties, and having the cases of dismissed judges the Disciplinary Chamber reviewed by the new chamber.
“The approval of this plan is linked to clear commitments by Poland on the independence of the judiciary, which will need to be fulfilled before any actual payment can be made. I am looking forward to the implementation of these reforms”, European Commission President Ursula von der Leyen said.
KAPITULATION ? • The Commission’s move has been criticised as a case of Brussels caving in to a member state in which democracy is backsliding. Laurent Pech criticised the ‘milestones’ for Poland to comply with the CJEU’s demands — which is quite surprising when full compliance with CJEU rulings is the rule.
On Verfassungblog, Franz Mayer, a professor of EU law at the University of Bielefeld, called the move a “kapitulation". “Whether this was a tactical retreat, a naïve misjudgment of the battle situation, or a more or less intentional capitulation to power relations and the abandonment of the law cannot yet be conclusively said. However, the direction of the classification is already clear. In any case, June 1, 2022 is not a good day for the rule of law in the EU'', Mayer writes (our translation).
“Betting on the Commission willing not to escalate its pressure on a Member State that risks so much in the collective European struggle against Russian irredentism, Poland is counting on getting away with most of its problematic laws. It is a feint – one the Commission should not have fallen for '', writes Jakub Jaraczewski on Verrfassungsblog.
SOLIDARNOŚĆ ? • In a rare move, two members of the College of Commissioners — Margrethe Vestager and Frans Timmermans — voted against the proposal, while three others sent letters of concern. The move is seen as a softening of the Commission’s rule-of-law demands towards Warsaw, just as Brussels is making a compromise with Hungary to get Orban’s backing on a sixth package of sanctions.
At the Council, rule-of-law vigilantes such as the Netherlands and Nordic countries will possibly oppose Poland’s Recovery and Resilience Plan, and others may abstain. This would be a first, as National Recovery and Resilience Plans have so far been adopted at unanimity.
ICYMI — Croatia In, Hungary Again, Denmark Opts In, Meta in Luxembourg, Food in Africa, Climate in Strasbourg
CROATIA READY FOR € • On 1 June, the European Central Bank and the European Commission published their 2022 Convergence Reports examining whether non-euro area Member States satisfy the necessary conditions to adopt the single currency. The reports conclude that Croatia fulfils the nominal convergence criteria and its legislation is fully compatible with the requirements of the Treaty and the Statute of the European System of Central Banks, paving the way for the country’s euro adoption on 1 January 2023.\ The Council is expected to formally adopt the decision on abrogating Croatia’s derogation from the euro and the relevant legal acts related to euro adoption in July.
ORBAN AGAIN • Hungarian Prime Minister Viktor Orban got his way on the latest package of sanctions against Russia. At the 30-31 May European Council, Orban asked for the head of the Russian Orthodox Church, Patriarch Kirill, to be removed from the list of sanctioned individuals.
Hungary also pushed for a last-minute extension of the agreed transition period during which it will be allowed to re-export Russian oil. The deal reached at the European Council was only political, and a vote was needed at the Council of the EU to become law. The sixth package of sanctions was adopted on 3 June.
DANES SAY YES • 67% of Danes voted in favour of ending Denmark’s EU security and defence policy opt-out on 1 June. The referendum was triggered as both the EU and NATO are consolidating in the wake of the war in Ukraine — with Finland and Sweden applying to join NATO and as the German Bundestag approved the 100 billion euro plan to modernise the Bunderswher. On 1 June, Gazprom announced it cut gas supplies to Ørsted, a Danish energy company, after it refused to comply with the order to pay for deliveries in rubles.
Denmark opted-out of the EU’s security and defence policy in 1992, meaning it did not participate in the EU’s Common Security and Defence Policy or joint EU military operations. Denmark still has opt-outs for the euro, together with justice and home affairs.
META IN FRONT OF EU COURT • Meta was in Luxembourg on 1 June, in a hearing before the General Court of the EU in cases T-451/20 and T-452/20. The case is about the European Commission’s potentially disproportionate data demands in an antitrust proceeding opened against Meta in 2021.
Meta accuses the European Commission of “hoovering up the whole sea bed — with the intention that it will later see what species of rare fish it finds in its cast nets”, said a lawyer for Meta, quoted by Bloomberg. Meta considers, among other things, that the Commission’s demands lacked clarity, concerned irrelevant and/or personal documents infringing on the right to privacy and proportionality.
EU PLAN FOR FOOD IN AFRICA • EU leaders met on 31 May to discuss the food security issues caused by the war in Ukraine. African Union leader Macky Sall, who was invited to the talks, pointed out the blocking of SWIFT payments for Russian banks as a major obstacle to grains and fertilisers purchases. The European Council nonetheless called African countries not to fall for Putin’s allegations that the food crisis is caused by EU economic sanctions towards Russia: “the only reason why we are struggling now with a food crisis is because of this brutal, unjustified war against Ukraine”, von der Leyen stressed.
EU leaders discussed plans to answer the crisis, including a proposal to provide 500 million euros to help African countries deal with the situation, according to Bloomberg. Discussions also underlined the importance of unblocking grain corridors, while the Food and Agriculture Resilience Mission (FARM) and the European Development Fund were identified as key institutional intermediaries to solve the crisis.
ROAD (AIR, AND SEA) TO 55 • On 2 June, the Council adopted its position on three texts linked to the transport sector, in line with the Fit for 55 package and the EU’s climate objectives. The first draft regulation, which concerns the deployment of alternative fuels infrastructure (AFIR), notably aims to ensure access to sufficient infrastructure networks for recharging or refuelling road vehicles or ships with alternative fuels, while achieving full interoperability throughout the EU.
The Council also agreed on regulations to increase demand for renewable and low-carbon fuels in the maritime sector, while also achieving consensus on creating a level playing field for sustainable aviation fuels (ReFuelEU Aviation initiative).
EP PLENARY FILLED WITH CLIMATE LAWS • On 8 June, the European Parliament will vote on its most ambitious set of climate laws to date, which covers around half of the Fit for 55 legislative package set out by the Commission. Topics under debate will include the Emissions Trading System (ETS), the Carbon Border Adjustment Mechanism (CBAM) and emission standards for cars, among others.
The amendments that will be brought to the table will determine the level of ambition of the European Parliament, ahead of subsequent talks with the Council. Heavy debates are expected on reforming the ETS and on ending the sale of cars equipped with internal combustion.
What we’ve been reading this week
The war in Ukraine has seen Europe find unity in purpose, yet there is no guarantee that this will last and leave the Union a strong and credible actor on the world stage, contend Daniel Gros and Zachary Paikin for the CEPS.
In the London Review of Books, Jan-Werner Müller reflects on Germany’s tolerance of her neighborhood’s autocrats.
The Verfassungsblog’s Jakub Jaraczewski argues that the new legislation tabled by the Polish government does not guarantee the safeguarding of the rule of law.
Free trade of energy is history, write Christopher M. Matthews, Summer Said and Benoit Faucon in The Wall Street Journal. Conflicts and rivalries are now shaping global flows of raw materials.
Nicolas Poitiers and Pauline Weil take a close look at the EU Chips Act, and find state intervention of the sort only so much to their liking.
This week’s newsletter is brought to you by Bogdana Fedun, Andrei-Bogdan Sterescu, Augustin Bourleaud, Harry Higgins, Maxence de La Rochère, and Thomas Harbor. See you next Tuesday!