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EU compromise with Poland will be hard to find

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To lose one member state may be regarded as a misfortune, to lose two would look like carelessness.

EU leaders are, for the moment, channelling Oscar Wilde as they calibrate their approach in the stand-off with Poland over the rule of law. Still grappling with the messy consequences of Brexit, they seem to have concluded it is not the moment for a bust-up with Warsaw.

Last month’s Polish Constitutional Tribunal ruling — issued at the government’s request — that parts of the EU treaties are incompatible with Poland’s constitution caused consternation in other capitals. The EU’s northern and liberal governments feel strongly that the judgment is a wrecking ball swung at the bloc’s legal order by an autocratic Polish government hell-bent on crushing judicial independence.

But at a summit two weeks later, they swung behind the more conciliatory stance espoused by German chancellor Angela Merkel. They agreed to let Ursula von der Leyen, European Commission president, handle the issue with the onus on dialogue and restraint. Brussels has delayed approving Poland’s application for €36bn in EU recovery funds — itself a form of punishment — but it has held back so far from taking fresh legal action to try to pull the country back into line and it is in no rush to trigger the new rule of law conditionality mechanism, a potential block on all EU payments to Poland.

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The EU needed to get out of an “ever widening spiral” of confrontation with Warsaw, Merkel warned. “You can’t resolve big political differences through court cases,” she said. Merkel is in the final few months of her chancellorship, but von der Leyen seems to think the same way.

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“For a lot of Germans, European unification is not just about France and Germany but also friendship and partnership between east and west,” said a person familiar with her approach.

“It is a mistake to think you can press people with money only. The Poles are quite proud,” the person said. “It will only work if you push them hard on some points and seek a compromise on others. It can’t just be a hammer.”

Is the EU learning from its Brexit experience by seeking a compromise with Warsaw? Given the widespread exasperation with the UK’s attempts to unpick the terms of its divorce, few seem willing to make an explicit link between these two cases, lest it seem like remorse. In any case, the Polish government insists it is not seeking the country’s departure from the EU — which would be electorally suicidal. But nor was former prime minister David Cameron when he sought to renegotiate the UK’s terms of membership. Cameron wanted restrictions on free movement of workers but came away more or less empty-handed.

“The way pro-Europeans and (some in the) EU institutions are reacting to the Poland case is analogous to the way they handled the threat of Brexit,” said Hans Kundnani, director of the Europe programme at Chatham House.

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The primacy of EU law over national law, which Poland is now trying to circumscribe, and free movement which the UK wanted to limit, are treated as “indivisible or a black and white thing, you either have it or you don’t”. In reality, both are ambiguous and complex, Kundnani says. You cannot be purist.

One person who has argued for the EU to become more flexible is Michel Barnier. As the EU’s former chief Brexit negotiator, he was intransigent against London’s attempts to cherry pick the benefits of membership. Now, as he runs for the French presidency, he says France should have a carve-out from European court judgments on immigration because this remains a national competence. Poland makes the same arguments over its courts. The trouble is one person’s carve out is another one’s hole. Soon the EU’s legal order will be full of them.

Other constitutional courts in the EU have qualified the primacy of EU law. But Poland had “fundamentally rejected it in a blanket way”, said Thu Nguyen of the Jacques Delors Centre at Berlin’s Hertie School. While Brussels could agree to start EU recovery fund payments in return for Warsaw agreeing to dismantle its contentious disciplinary regime for judges, it had to persuade Poland to backtrack and accept that judges should be independent and EU law supreme.

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