Rule of three: how unfinished business threatens the EU

The European Union has shown resilience in its response to Russia’s war against Ukraine. The bloc has preserved its unity despite numerous obstacles created by Hungary’s notoriously disruptive Prime Minister Viktor Orban. Member states came together to support Ukraine – which many European citizens view as a distant and unknown country – in making energy security decisions that would shape their future. So far, so good.

But the war also exposed the EU’s vulnerabilities and brought to mind difficult and unfinished issues. For years, EU member states have struggled to avoid key decisions that would force them to confront painful truths. Today, the war has exposed the EU’s three biggest internal problems. European leaders can no longer resort to their usual ambiguity: mishandling the situation could easily sabotage the EU’s response to the war in Ukraine.

In a game of chicken, the Commission pretends to play chess

The first problem concerns the rule of law. The President of the European Commission, Ursula von der Leyen, felt the magnitude of this issue in the European Parliament on June 7. Many MPs were furious that the Commission approved Poland’s national recovery plan despite the Polish government’s continued attacks on the independence of the judiciary. Von der Leyen’s critics say that, in the face of Russia’s war of aggression, she has sacrificed EU values ​​to maintain unity. Theoretically, Poland will only receive EU funding under the plan if it resolves the main problems in the justice system by the end of June. The country must completely reform its disciplinary system for judges, which violates the principle of judicial independence and the EU treaties, according to a ruling by the Court of Justice of the European Union from July 2021. The national recovery plan Polish agreement agreed by Warsaw and Brussels includes concrete commitments in this regard. However, the Polish government is unlikely to respect them. Instead, the Commission appears ready to start disbursing the 35 billion euros allocated to Poland after dodging the question.

Only recently did Poland’s ruling Law and Justice party place its own supporters – including friends of Justice Minister Zbigniew Ziobro and individuals involved in smear campaigns against judges – on the National Council of the judiciary, the principal constitutional body responsible for preserving judicial independence. They will now oversee the Polish judicial system and appoint all Polish judges over the next five years.

According to the Court of Justice of the EU, these politicized appointments violate the EU treaties and values. In ruling on the appointments, the Court set a European standard of judicial independence. But in Poland, enforcing this fundamental norm constitutes a serious crime. Polish judges confront disciplinary charges, suspensions and other sanctions whenever they refer to it. The Polish government’s new judicial reform, celebrated by the Commission as the basis for an agreement on the recovery plan, has not resolved this absurdity. In a game of chicken, the Commission pretends to play chess.

Regardless, the pressure of war forced the EU to make a decision regarding the rule of law saga. It appears that Warsaw will receive funding under the recovery plan, even if it ignores the verdicts of the EU’s highest court and mocks its insistence on respecting European norms and values. This would undermine the authority of the court and the Commission. The EU would have lost the battle for the rule of law at a time when it had never been closer to victory. And such a failure would have repercussions well beyond the legal sphere. Politically, this would make solving the EU’s other two biggest problems even more difficult.

One of them concerns the enlargement policy – ​​which, once a success story, has become a source of frustration and denial. The EU has been dishonest in handling the membership aspirations of Balkan countries such as North Macedonia and Albania, who were unable to begin accession negotiations despite meeting the formal conditions for doing so. More importantly, the EU could not prevent their disenchantment with the European project.

Ukraine’s application for membership forces the EU to finally take a position on its geopolitical future. If the EU granted candidate status to Ukraine, it would be a powerful symbolic step. If it refused to do so, it would demonstrate the bloc’s unpreparedness for the geopolitical competition it faces. To shape the new world order, the EU will need to reaffirm its commitment to its enlargement policy as a transformative strategic project for the next decade.

This is where the rule of law conundrum comes into play again. If the EU does not resolve its most serious internal crisis, there will be neither an appetite for enlargement nor a credible enlargement policy. Enlargement skeptics will prevail, as accepting new member states appears suicidal if the EU is unable to prevent the type of democratic backsliding that has occurred in Hungary and Poland.

The same goes for the EU’s third major problem, that of financial solidarity. Russia’s war against Ukraine has caused a huge economic shock to the EU – one that affects some member states far more than others. As in the worst days of the pandemic, the questions of common debt and the distribution of financial burdens weigh heavily on Europe. The EU should not leave it to national governments to absorb the costs of the energy crisis alone, to welcome Ukrainian refugees or to support Ukraine’s reconstruction. Member states should also not spend so little on defense at European level.

To address these challenges and limit the fallout from war, the EU should launch a joint effort of a scale similar to that of the coronavirus fund. The more it becomes clear that member states can ignore mutually agreed rules, the more unlikely it is that the EU will be able to achieve this. Solidarity requires trust, and trust requires solidarity.

The Commission still has the power to ensure that the war in Ukraine strengthens the EU. Don’t hesitate to use it.