Stefan Auer is associate professor at the University of Hong Kong and author of “European Disunion.” Nicole Scicluna is an assistant professor in government and international studies at Hong Kong Baptist University.
Poland’s transgressions against the rule of law are very real and have undoubtedly degraded the quality of democracy in Poland, as well as destabilized the European Union’s constitutional settlement.
However, the conflict between Warsaw and Brussels can’t be “won” by one side or the other — particularly in the context of Russia’s war against Ukraine. Much like the concessions currently being hashed out by both parties, the only outcome can be a messy compromise.
Simply put, those who advocate both Ukraine’s speedy accession to the EU and that the bloc adopt more punitive measures against Poland can’t have it both ways.
This outlook misapprehends the nature of political contestations in both countries. It also overestimates and, therefore, overburdens EU law by tasking it with achieving political goals, such as the restoration of liberal democracy in Poland and Hungary. And it underestimates the enduring salience of sovereignty in national-supranational relations.
When the European Commission decided to unlock billions in recovery funds for Poland in exchange for concessions promising to restore judicial independence, critics were scathing. “It’s a joke, it does not even come close to guaranteeing compliance,” argued one EU legal expert. Another analyst went as far as to compare the Commission’s “strategic blunder” with respect to Warsaw to Moscow’s bungled execution in the battle of Kyiv. Overall, the consensus that quickly appeared was that the Commission had, once again, capitulated to rule of law delinquents.
Such analyses are incomplete, however. While focusing on Polish misdeeds and casting the conflict as one between Brussels and Warsaw, critics misconstrue the nature of the EU polity.
What tends to be underestimated is the extent to which the Polish rule of law crisis represents a crisis of EU constitutionalism. At the same time, those who rightly stress the Commission’s role as the guardian of the treaties, arguably underplay member countries’ standing as the masters of the treaties.
The EU that rule-of-law-advocates call on to save Polish democracy from the Polish government is a platonic ideal, one that embodies and projects an untainted version of its Article 2 values — respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.
But that EU doesn’t exist.
The EU that exists is the one that does deals with Turkey and Libya to prevent non-European asylum seekers from reaching its shores. It’s the EU that punishes Greece with endless austerity because debt relief was judged politically untenable. It’s the EU that blocks a patent waiver on COVID-19 vaccines. It’s the EU of which Poland and Hungary are a part.
To be sure, the bloc’s critics are well aware of these shortcomings. But to decry the lack of political will, which sees the Council water down and the Commission hesitate to use the legal tools the institutions have at their disposal, is to miss the point.
The crisis is political — and it won’t be resolved by legal or other technocratic means. Lack of political will isn’t an impediment easily overcome. In fact, it defines the EU that is, and the EU that is emerging.
This brings us back to the question of Ukraine’s potential — and well-deserved — path toward EU membership. Led by the government of President Volodymyr Zelenskyy, the struggle of the Ukrainian people to exist — free, sovereign, and democratic — is awe-inspiring. But it’s also messy.
A decade from now, Ukraine is unlikely to be any closer to Western European ideals of judicial independence, an apolitical civil service or a free press than Poland is today. So, what do these concerns mean for the country’s European aspirations?
The truth is, none of this should prevent the EU and its member countries from helping Ukraine now, or from accepting it as a full member once the war is over. If Europe is to remain free and united, Ukraine must prevail against Russia.
But the war, much like the challenge posed by Poland, is bound to change the project of European unity. And the result is destined to be an EU that’s more heterogeneous and more reliant on political compromises that defy the straightforward application of legal rules — a messy concession.
