Given the challenges ahead, the European Union will need to show flexibility to keep both its flock and its values together.
As the Merkel era ends in Germany, the country and the European Union (EU) are being reminded of the perils that remain, despite her best efforts. The crisis in Poland, and with Belarus have highlighted the contradictions which the EU faces.
The more recent crisis has been at the Polish border with Belarus, which has also impacted the Belarus-Lithuania border. Belarus is accused of admitting large numbers of West Asian migrants and unleashing them at the borders of the EU, mainly Poland and Lithuania. This is purported to be a retaliation for EU sanctions on Belarus following the election of President Alexander Lukashenko last year. The sanctions hurt enough for Belarus to adopt this unique model of pushing migrants into the EU.
Nearly 35,000 migrants are said to be around the Belarus-Polish border. Most of them are Kurds, but others are from Syria, Iraq and other places. Belarus is accused of easing immigration controls and encouraging large numbers of flights to bring them in and then visibly guide them towards the Polish border to put pressure on the EU. Most of the Kurds intend to cross Polish territory to enter Germany where they have relatives or friends. Thus, Germany could face the tribulation of another wave of migration, which signaled the last years of the Merkel era in 2015. Merkel herself stepped in to talk to Lukashenko and others to ease the crisis which raises anxieties.
Soon, Merkel will not be the Chancellor of Germany, but the problem of migration into the EU, particularly into Germany, will remain.
This has overtaken the internal EU problems which Brussels was having with Warsaw. A judgement by the Polish Constitutional Tribunal (PCT) in response to a case introduced by the Prime Minister of Poland, Mateusz Morawiecki, held that Poland’s national legislation was not subordinate to EU laws and commitments. This raised serious issues of compliance by EU member states with EU laws which they undertook when they joined the EU.
The PCT emphasised the incompatibility of Polish laws with four particular articles of the Treaty on the European Union (TEU). These are Article 1, Article 2, Article 4(3), and Article 19.
Article 1 laid the foundation of the EU. Article 2 lays down normative values including rule of law, freedom, democracy, equality, and respect for human rights. Article 4(3) emphasises mutual respect in assisting each other in implementing tasks emerging from the treaties. Article 19 permits the European Court of Justice (CJEU) to ensure that in the interpretation and application of treaties, the EU law is observed. By enunciating incompatibility, the Polish establishment has in effect rejected the enforceability of the EU laws in Poland
Among the issues which Poland is accused of violating are controls over the media, curbing LGBT and abortion rights, and circumscribing judicial independence. Supporters of the Polish efforts see it asserting its sovereignty in an indirect manner to enhance economic well-being. The ruling right-wing Law and Justice Party (PiS) has strong popular support which has not diminished despite its curbing of rights and judicial and media independence.
Poland is the largest economy in Central Europe and its economic resilience has grown since it joined the EU in 2004. About 73 percent of Polish exports go to EU countries; the EU accounts for 88 percent of FDI inflows; thousands of Polish workers are employed in other EU countries, showing the economic interdependence of Poland and the EU. However, due to its violation of EU values and laws, the EU has stopped funds of euro 57 billion of which euro 23 billion was granted for dealing with the pandemic and euro 34 billion loan under the special dispensation which the EU passed last year.
This seems unlikely due to the economic interdependence. Also, the ruling and opposition parties are both pro-Europe. It is more likely that Poland needs the EU euro 57 billion which is on hold and is leveraging various domestic positions to pressurise Brussels. Former president of the European Council, Donald Tusk, who is an opposition leader of the Civic Platform in Poland, supports a defence of a European Poland. The current regime is willing to put that concept at risk to secure a better deal from Brussels. It faces an election in 2022 and wants to burnish its credentials.
In the midst of this crisis, came the Belarus effort to thrust migrants into Poland. Poland reacted with severity and used strong tactics to prevent the entry of migrants which Poland feared would be stranded within Poland as other EU countries may not accept them. This led to a strange situation where internally the EU was uncomfortable with Polish actions but externally was bound to defend it.
The Polish Prime Minister has been on a tour of the Baltic countries to lobby support for the Polish position relating to migration. He then visited France, Slovenia, Germany and the UK to discuss a united European position. Brussel’s fear is that this diplomatic effort is also to gain sympathy for Poland on internal EU issues.
European Commission president Ursula von der Leyen has spoken of three ways in which the Commission can respond: Legally challenging the court ruling, withholding EU funds, and suspending Poland’s rights as a member state. The suspension of emergency funds is underway. Suspending Poland is an unlikely option. Legally challenging the PCT ruling in the European Court of Justice (CJEU) may be the stopgap option.
The problem is that such voices of dissent while staying within the EU are growing in several members and the EU will need to show flexibility to keep both its flock and its values together.
The writer is a former Ambassador to Germany. Views expressed are personal.