As European leaders prepare for a row with Poland over legal issues that go to the heart of the union when they meet in Brussels this week, diplomats are steering the battle onto terrain where they are sure they can win.
Rule of law was forced onto the council's agenda by Belgium, Luxembourg and the Netherlands despite the reluctance of France and Germany, who wanted to de-escalate the fight and stop it derailing attempts to tackle the other pressing policy briefs, such as trade, Covid-19, migration and high energy prices.
Ahead of what will be her 107th and perhaps final appearance at a European Council, outgoing German chancellor Angela Merkel urged caution and dialogue, maintaining her longtime role of bridge-builder with the east, which critics cast as a policy of appeasement that has allowed autocracy to spread.
Yet even the EU member states who want to confront Polish prime minister Mateusz Morawiecki head-on around the summit table over the issue on Thursday will not do so directly on the subject of Warsaw's constitutional court ruling, which bombastically asserted the primacy of the Polish constitution over EU law this month.
Instead, they will focus on the broader context that the very court that produced the ruling is not politically independent. The reforms of the Law and Justice party have stacked the judiciary with loyalists and squeezed dissenters, drawing the censure of the European Court of Justice, which triggered Warsaw’s rejection of its authority in the matter.
Crudeness
The leaders will focus on the compromised Polish judicial system and not the ruling because for all the crudeness of some of Warsaw’s arguments, legally, it has poked at an EU weak spot.
The union is a choice by countries to jointly follow the same rules in some areas, in order to be a more powerful economic and political force together.
They all retain their own domestic laws, which are unaffected where they fall outside the agreed common EU areas. The European Court of Justice has the final say in areas of joint law, above national courts, ensuring legal consistency throughout the union.
This last point isn’t actually disputed by Poland. In his letter to EU leaders this week, Mr Morawiecki wrote: “Poland respects this law and recognises its primacy over national laws.”
Simplistic political sloganeering about national sovereignty is aimed at rousing national sentiment, not winning an argument. It ignores the obvious point that all EU members are and remain sovereign. They use that sovereignty to choose to pool some of their powers in order to increase them, and can also choose not to.
The real trouble is over a more specific point. It’s about where the boundary between domestic and EU law lies, and which authority gets to decide on this.
Grey area
Diplomats and long-serving EU officials concede that this is a grey area, and one on which there have long been differing points of view.
“Where is the limit, who defines the limit, and so on, this is a subject that fills entire libraries,” a harried senior diplomat put it this week.
Scholars can reel off lists of national courts that produced awkward rulings on the topic over the years, most famously Germany's constitutional court in Karlsruhe. It finally acted on long-held misgivings in 2020 with a rejection of a European Central Bank bond-buying programme as contravening German law.
It was on a highly technical point (the proportionality of the programme was insufficiently justified) that just needed a tweak by the ECB to overcome. But there were warnings at the time that it would embolden Poland, and so it came to pass.
Specific
It’s wrong to liken the two judgments. Where the German one was specific and technical, Poland’s ruling sweepingly rejects whole articles of EU treaties as incompatible with the Polish constitution. And crucially, it was produced at the request of the Polish government, in a judicial system that is not independent.
In the background, the European Commission is preparing its options, including the use of a new rule that could ultimately cut Poland off from the spigot of EU funds. The European Parliament has threatened to sue the commission for failing its duty if does not hurry up.
But some national governments see it differently: that this isn’t a legal fight at all, and that to accept it as such is to choose battle on ground where Poland has carefully chosen an advantage.
They see it as a challenge engineered by a particular faction in Polish politics, and one that can best be defeated politically.