Day two of the new traffic light government is over. On Thursday, the last of the new ministers took office. In line with this, we have broken down for you the leadership levels of the ministries that are particularly relevant for the Green Deal, digitalization in Europe, and German European policy. We will continue to add to this overview in the coming weeks. You can find all further developments under this link.
The developments we can expect from the French EU Presidency were announced by French President Emmanuel Macron on Thursday. My colleague Tanja Kuchenbecker explains the most important plans. Macron wants to push for better border protection, better organization of migration, and better protection for climate-friendly, European products through a CO2 border tax. Incidentally, the new German government would prefer to achieve the latter through so-called climate clubs.
Speaking of climate, next week, the EU Commission will present another package of legislation to implement the Green Deal, including a recast of the Energy Efficiency Directive for Buildings. Timo Landenberger analyses how the Commission intends to make the building sector – the EU’s biggest energy consumer – more climate-friendly.
The Commission presented on Thursday how it intends to tackle precarious working conditions on online platforms such as Uber and Deliveroo. Around 5,5 million platform workers in the EU are currently classified as self-employed, although according to the Commission, they are, in fact, employees. Jasmin Kohl explains what social protection platform workers who are not self-employed could expect in the future.
With the presentation of its Fit for 55 package last summer, the EU Commission put a comprehensive first package of measures on the table to achieve the European climate targets. Now the Brussels authority wants to follow up and present a further legislative package on December 14th, including a new version of the directive on energy efficiency in buildings.
The regulations are eagerly awaited, as they are expected to contain specific requirements for solar installations on roofs, the use of heat pumps, minimum standards for renovations, and the availability of charging stations for electric vehicles, which is likely to have far-reaching consequences. Observers also expect detailed specifications on overall energy efficiency.
According to insiders, the proposal would require all full-time buildings with the lowest energy rating G to be renovated to a higher rating by 2030. This would require EU states to renovate millions of homes, offices, and commercial buildings, with countries affected to varying degrees. In Italy, about a third of residential buildings have the lowest energy efficiency class G, while in the Netherlands it is only four percent.
Such concrete requirements by the EU Commission are therefore causing legal disputes even before the directive is published. The Regulatory Scrutiny Board (RSB), for example, has reportedly rejected the draft legislation on several occasions, arguing that it violates the principle of subsidiarity and does not give the member states sufficient flexibility in achieving the objectives.
The principles of subsidiarity and proportionality are based on the Treaty on European Union (TEU), guaranteeing the protection of national sovereignty and providing that the EU will only legislate if the objectives of a measure can be better achieved at the EU level than by the member states themselves. However, the need for a carbon-neutral building stock in the EU to meet climate targets is a good argument that justifies top-down legislation by the EU, says Matthias Buck, director of the Europe department at the think tank Agora Energiewende. Leaving decarbonization to the member states is “a high risk”.
MEP Ciarán Cuffe also calls for EU minimum energy performance standards and insists on an even more ambitious roadmap. “We only have a decade to tackle the climate emergency,” the Irish politician, who is covering the issue for the Greens/EFA group in the EU Parliament, tells Europe.Table. “We cannot wait until 2030 for the minimum standards to be applied.” The Commission, therefore, needs to come up with a proposal that is as ambitious as possible, he said.
Markus Pieper, energy policy spokesman for the CDU/CSU in the EU Parliament, sees things differently and refers to the European Emissions Trading Scheme (ETS). The Commission plans to extend this to the building sector, which should create market-based incentives for more energy efficiency and renovation. “Massive regulatory requirements, which particularly affect the private sector, are now to be added on top of this. The member states will not go along with this,” said the MEP.
36 percent of greenhouse gas emissions in the EU are attributable to the building sector, and at the same time, according to the EU Commission, 75 percent of the building stock is not energy efficient. According to a recent study by Agora Energiewende, only three percent of houses meet the efficiency standards that would be needed in the long term to achieve the climate targets. However, energy-efficient renovations are complex and, above all, expensive. The annual modernization rate is currently just one percent.
This means that the building sector is responsible for 40 percent of EU-wide energy consumption, which is one of the main reasons for growing energy poverty in some parts of Europe. A problem that is currently exacerbated by record-high gas and electricity prices. “An ambitious Buildings Directive is our best answer in the fight against fuel poverty,” says Ciarán Cuffe. A higher rate of renovation will protect citizens and reduce dependence on fossil fuels.
In fact, according to the Agora study, more than 70 percent of the energy used for heating comes from fossil fuels. The number of heat pumps must increase from the current 14 million to 50 million by 2030, demands Andreas Graf, author of the study. By 2050 at the latest, the entire sector must be climate-neutral and also act as a source of renewables by using 100 percent of potential roof surfaces for solar energy.
Long-term planning is important, along with a clear roadmap that goes beyond mere targets. This includes national renovation plans as well as “certificates” on the renovation progress of one’s own properties for homeowners on the way to climate neutrality. Both are under discussion for the Buildings Directive, Graf said. And this would also give the member states sufficient flexibility.
Couriers who work for the food delivery service Deliveroo are not employees but self-employed workers, the Brussels Labour Court ruled on Wednesday. The case, which involved only 30 couriers, is emblematic of the problem posed by the emerging platform economy: Is a platform an employer and, accordingly, are its workers employees? European regulation has so far been lacking, leading to many different court rulings in the member states.
The dilemma: Many platform workers suffer from precarious employment conditions, although they would actually be entitled to employee status. Moreover, the sector is growing immensely: The European Commission estimates that revenues in the platform economy have increased fivefold between 2016 and 2020: from around €3 billion to around €14 billion. The authority is now tackling the problem: Yesterday, it presented its proposal for a directive to improve working conditions in platform work.
The core of the directive is the fight against false self-employment. The Commission estimates that around 5.5 million of the 28 million platform workers in the EU are currently wrongly classified as self-employed, although they are, in fact, employees. As a result, they miss out on social benefits such as unemployment benefits and pensions. They are also deprived of a statutory minimum wage (if available in the respective member state), collective bargaining, health insurance, regulated working hours, health protection, or paid holidays.
In order to be able to determine in the future whether a platform assumes the role of an employer in an employment relationship, the Commission provides for five criteria. If at least two of these criteria apply to a platform, it must be classified as an employer and the employees as workers.
These are the five criteria:
Platforms can challenge the classification as an employer according to the list of criteria, but then the burden of proof lies with them. In this context, the national definitions of employee status apply, as there is no European definition of the term employee.
“No one is trying to kill, stop, or hamper the growth of the platform economy,” said Employment and Social Rights Commissioner Nicolas Schmit, stressing that the proposal’s clear guidelines are intended to give legal certainty to all sides. Moreover, he said, the Commission did not want to create an instrument against self-employment by doing so. After all, platforms would still have the possibility to change their terms and conditions so that they could legally employ self-employed workers.
It is not only the business models of online platforms that are based on algorithms. They also use the automated systems as a management tool: Algorithms thus decide on the distribution of tasks, monitor and evaluate employees or impose sanctions. However, employees are largely unaware of how the algorithms work. The new rules are intended to put an end to this: Information about how they work is to be shared; only personal data directly related to the work is to be collected and processed. In addition, algorithms must be monitored by humans and algorithmic decisions must be challengeable. These transparency obligations benefit not only the employees of online platforms but also the self-employed who work with the platforms.
The alliance “Delivery Platforms Europe”, which also includes Uber Eats and Deliveroo, criticized the proposed legislation even before the Commission had presented it: A study had shown that the re-categorization of platform employees envisaged by the Commission could lead up to 250,000 couriers into unemployment. The argument: The proposed legislation would destroy the flexibility that makes the platform work function. The majority of platform workers, however, want to continue to be able to freely decide on their working hours.
“With this argument, the platforms want to turn their workers against salaried employment,” says Ludovic Voet, secretary responsible for platform work at the European Trade Union Confederation (ETUC), when asked by Europe.Table. This has nothing to do with reality, as Take Eat Easy or Just Eat already offer salaried employment and still allow their workers to choose when they want to work. “If platforms really care about their workers, they should come to the negotiating table with the unions and start collective bargaining like any other responsible employer,” Voet said.
DGB President Reiner Hoffmann expressly welcomes the proposal: “Digitalization has created a shadow labor market on labor platforms that urgently need fair rules. It is therefore high time that the EU finally wants to bring light into the darkness and that work via digital platforms no longer takes place in a legal vacuum.”
“From my point of view, this is absolutely a step in the right direction,” commented Dennis Radtke (CDU), MEP and social policy spokesman for the EPP Group, in response to a question from Europe.Table. As shadow rapporteur for the EPP, he played a decisive role in the own-initiative report, with which the European Parliament had already formulated concrete demands to the Commission in mid-September on how working conditions on online platforms should be improved. “The proposal takes up in many places what we as a Parliament also demanded in our own-initiative report. Together, we now have a great opportunity to improve the rules of the game in the platform economy – both for employees and with a view to fair competition,” said Radtke.
Before the directive can enter into force, it still has to be negotiated in the European Parliament and the Council. Once the two co-legislators in the trilogue find a common position with the Commission, the member states will have two years to implement the law.
Our editorial team will supplement this overview in the coming weeks with further names and functions as soon as they are known.
If you want to keep track of further personnel developments, check this link regularly to see what further developments we can share with you.
You are also welcome to send further suggestions for additions to editorial director Till Hoppe if you know of any other personnel decisions before we do.
One of the most striking messages from the new German coalition agreement refers to the rule of law in the European Union. The so-called traffic light parties not only urge the EU Commission “to use the existing rule of law instruments more consistently and in a timely manner,” but they also maintain that Berlin will only agree to release recovery fund money for countries like Hungary and Poland “if preconditions such as an independent judiciary are met”.
This wording echoes Dutch Prime Minister Mark Rutte’s statement from late October, claiming that he could not see the money for those countries being disbursed as long as the dispute over the rule of law persists. His Belgian peer Alexander De Croo was even more blunt. “This is a fundamental political problem that needs to be solved politically, by the European Council and by the European Parliament,” he said in a speech which shocked Warsaw to the extent that the Belgian ambassador was summoned by the Polish ministry of foreign affairs.
No doubt, there is a new tone in the European debate on the EU’s fundamental norms and values. Until recently the battle over the rule of law was exclusive territory of supranational institutions – the Commission, Court of Justice of the European Union, and the European Parliament. The EU member states happily outsourced to them this unthankful job of bringing EU’s black sheep to the fold. Angela Merkel was most instrumental in stressing that the rule of law is a European issue and thus the EU institutions should deal with that – as if the member states were not the real masters of the EU treaties.
Behind the curtains, Germany stepped on the brake in the conviction that an escalation of the conflict would tear the EU apart. This depoliticization of the rule of law issues – delegating them to technocratic and judicial bodies instead – resulted in those bodies expanding the use of their instruments and powers.
The Commission resorted to infringement procedures, usually used to ensure compliance with boring sectoral regulations, to defend independent courts and thus foundations of the democratic order. The CJEU stepped in with rulings requiring dismantling some key pillars of Poland’s judicial system – only a few years ago, an unthinkable move even for those most critical about the court’s alleged power grab.
While European politicians were holding back, a silent institutional revolution was underway. To be sure, principled defenders of democracy criticized the lack of enthusiasm and slowness with which the Commission was rising to the rule of law challenge.
But the belief that technocrats and judges could solve the largest political problem of our time, the rise of neo-authoritarianism in the center of Europe, while democratically elected leaders would play good cops, may have always been no more than a dangerous illusion.
Indeed, the crisis has only escalated. The Polish government demolished the guarantees of judicial independence, granted the minister of justice full control of the disciplinary system of judges and persecutes those who protest against this autocratic power grab. The backlash against the supremacy of EU law is spreading across the continent. In France, most contenders of Emmanuel Macron point to the Polish example as the way to go.
The collapse of the independent judiciary in an EU member state is the most serious blow to EU’s legal order. Denying the authority of the CJEU would make its breakdown perfect. No wonder that the politics of the rule of law are now hunting European leaders. They slowly realize that their strategy of waiting it out was akin to turkeys voting for Thanksgiving. It was this strategy which led the crisis swell to the extent that it cannot be contained without risky political involvement.
The time of reckoning is coming. Sooner rather than later, EU member states will have to decide whether to use financial leverage against misbehaving countries. Many believe that an open confrontation would destroy the EU. Emmanuel Macron is afraid that the Polish government could wreck the French EU presidency just ahead of the presidential election.
The Germans tend to hide behind their terrible past as an excuse for a light touch approach. Others fear that new exits from the EU could follow as a reaction against too much of insistence on what actually makes the European project. Or believe that allowing the Court of Justice of the EU to have too much say regarding national judges would destroy the institutional balance of power and pave the way for the federalisation by stealth.
These may all be noble objections. But their proponents do not see the forest through the trees. At stake is not least the question of whether the EU remains a bloc of democracies or starts eroding towards an association without a common destiny. Dismantling of the separation of power paves the way for authoritarianism.
The EU has always perceived itself as a gentlemen’s club taking respect for its internal rules for granted. But this image is outdated. European democratic leaders have no other choice than politically face up to them.
Most importantly, they should strongly endorse and defend the key role of the CJEU as the ultimate arbiter on the rule of law. This crisis has thought us – also because of the unwillingness of the EU member states to engage in political disputes – that there is no better way to protect the EU’s foundations. The fear of an escalation of a conflict is understandable.
But if the EU is a political family, then it must finally accept that even big quarrels very often have a purifying effect. The EU needs it more than ever.
Piotr Buras is the head of the Warsaw office of the European Council on Foreign Relations (ECFR). This article text is part of a cooperation between Europe.Table and the ECFR Annual Council Meeting on 9 and 10 December.
Day two of the new traffic light government is over. On Thursday, the last of the new ministers took office. In line with this, we have broken down for you the leadership levels of the ministries that are particularly relevant for the Green Deal, digitalization in Europe, and German European policy. We will continue to add to this overview in the coming weeks. You can find all further developments under this link.
The developments we can expect from the French EU Presidency were announced by French President Emmanuel Macron on Thursday. My colleague Tanja Kuchenbecker explains the most important plans. Macron wants to push for better border protection, better organization of migration, and better protection for climate-friendly, European products through a CO2 border tax. Incidentally, the new German government would prefer to achieve the latter through so-called climate clubs.
Speaking of climate, next week, the EU Commission will present another package of legislation to implement the Green Deal, including a recast of the Energy Efficiency Directive for Buildings. Timo Landenberger analyses how the Commission intends to make the building sector – the EU’s biggest energy consumer – more climate-friendly.
The Commission presented on Thursday how it intends to tackle precarious working conditions on online platforms such as Uber and Deliveroo. Around 5,5 million platform workers in the EU are currently classified as self-employed, although according to the Commission, they are, in fact, employees. Jasmin Kohl explains what social protection platform workers who are not self-employed could expect in the future.
With the presentation of its Fit for 55 package last summer, the EU Commission put a comprehensive first package of measures on the table to achieve the European climate targets. Now the Brussels authority wants to follow up and present a further legislative package on December 14th, including a new version of the directive on energy efficiency in buildings.
The regulations are eagerly awaited, as they are expected to contain specific requirements for solar installations on roofs, the use of heat pumps, minimum standards for renovations, and the availability of charging stations for electric vehicles, which is likely to have far-reaching consequences. Observers also expect detailed specifications on overall energy efficiency.
According to insiders, the proposal would require all full-time buildings with the lowest energy rating G to be renovated to a higher rating by 2030. This would require EU states to renovate millions of homes, offices, and commercial buildings, with countries affected to varying degrees. In Italy, about a third of residential buildings have the lowest energy efficiency class G, while in the Netherlands it is only four percent.
Such concrete requirements by the EU Commission are therefore causing legal disputes even before the directive is published. The Regulatory Scrutiny Board (RSB), for example, has reportedly rejected the draft legislation on several occasions, arguing that it violates the principle of subsidiarity and does not give the member states sufficient flexibility in achieving the objectives.
The principles of subsidiarity and proportionality are based on the Treaty on European Union (TEU), guaranteeing the protection of national sovereignty and providing that the EU will only legislate if the objectives of a measure can be better achieved at the EU level than by the member states themselves. However, the need for a carbon-neutral building stock in the EU to meet climate targets is a good argument that justifies top-down legislation by the EU, says Matthias Buck, director of the Europe department at the think tank Agora Energiewende. Leaving decarbonization to the member states is “a high risk”.
MEP Ciarán Cuffe also calls for EU minimum energy performance standards and insists on an even more ambitious roadmap. “We only have a decade to tackle the climate emergency,” the Irish politician, who is covering the issue for the Greens/EFA group in the EU Parliament, tells Europe.Table. “We cannot wait until 2030 for the minimum standards to be applied.” The Commission, therefore, needs to come up with a proposal that is as ambitious as possible, he said.
Markus Pieper, energy policy spokesman for the CDU/CSU in the EU Parliament, sees things differently and refers to the European Emissions Trading Scheme (ETS). The Commission plans to extend this to the building sector, which should create market-based incentives for more energy efficiency and renovation. “Massive regulatory requirements, which particularly affect the private sector, are now to be added on top of this. The member states will not go along with this,” said the MEP.
36 percent of greenhouse gas emissions in the EU are attributable to the building sector, and at the same time, according to the EU Commission, 75 percent of the building stock is not energy efficient. According to a recent study by Agora Energiewende, only three percent of houses meet the efficiency standards that would be needed in the long term to achieve the climate targets. However, energy-efficient renovations are complex and, above all, expensive. The annual modernization rate is currently just one percent.
This means that the building sector is responsible for 40 percent of EU-wide energy consumption, which is one of the main reasons for growing energy poverty in some parts of Europe. A problem that is currently exacerbated by record-high gas and electricity prices. “An ambitious Buildings Directive is our best answer in the fight against fuel poverty,” says Ciarán Cuffe. A higher rate of renovation will protect citizens and reduce dependence on fossil fuels.
In fact, according to the Agora study, more than 70 percent of the energy used for heating comes from fossil fuels. The number of heat pumps must increase from the current 14 million to 50 million by 2030, demands Andreas Graf, author of the study. By 2050 at the latest, the entire sector must be climate-neutral and also act as a source of renewables by using 100 percent of potential roof surfaces for solar energy.
Long-term planning is important, along with a clear roadmap that goes beyond mere targets. This includes national renovation plans as well as “certificates” on the renovation progress of one’s own properties for homeowners on the way to climate neutrality. Both are under discussion for the Buildings Directive, Graf said. And this would also give the member states sufficient flexibility.
Couriers who work for the food delivery service Deliveroo are not employees but self-employed workers, the Brussels Labour Court ruled on Wednesday. The case, which involved only 30 couriers, is emblematic of the problem posed by the emerging platform economy: Is a platform an employer and, accordingly, are its workers employees? European regulation has so far been lacking, leading to many different court rulings in the member states.
The dilemma: Many platform workers suffer from precarious employment conditions, although they would actually be entitled to employee status. Moreover, the sector is growing immensely: The European Commission estimates that revenues in the platform economy have increased fivefold between 2016 and 2020: from around €3 billion to around €14 billion. The authority is now tackling the problem: Yesterday, it presented its proposal for a directive to improve working conditions in platform work.
The core of the directive is the fight against false self-employment. The Commission estimates that around 5.5 million of the 28 million platform workers in the EU are currently wrongly classified as self-employed, although they are, in fact, employees. As a result, they miss out on social benefits such as unemployment benefits and pensions. They are also deprived of a statutory minimum wage (if available in the respective member state), collective bargaining, health insurance, regulated working hours, health protection, or paid holidays.
In order to be able to determine in the future whether a platform assumes the role of an employer in an employment relationship, the Commission provides for five criteria. If at least two of these criteria apply to a platform, it must be classified as an employer and the employees as workers.
These are the five criteria:
Platforms can challenge the classification as an employer according to the list of criteria, but then the burden of proof lies with them. In this context, the national definitions of employee status apply, as there is no European definition of the term employee.
“No one is trying to kill, stop, or hamper the growth of the platform economy,” said Employment and Social Rights Commissioner Nicolas Schmit, stressing that the proposal’s clear guidelines are intended to give legal certainty to all sides. Moreover, he said, the Commission did not want to create an instrument against self-employment by doing so. After all, platforms would still have the possibility to change their terms and conditions so that they could legally employ self-employed workers.
It is not only the business models of online platforms that are based on algorithms. They also use the automated systems as a management tool: Algorithms thus decide on the distribution of tasks, monitor and evaluate employees or impose sanctions. However, employees are largely unaware of how the algorithms work. The new rules are intended to put an end to this: Information about how they work is to be shared; only personal data directly related to the work is to be collected and processed. In addition, algorithms must be monitored by humans and algorithmic decisions must be challengeable. These transparency obligations benefit not only the employees of online platforms but also the self-employed who work with the platforms.
The alliance “Delivery Platforms Europe”, which also includes Uber Eats and Deliveroo, criticized the proposed legislation even before the Commission had presented it: A study had shown that the re-categorization of platform employees envisaged by the Commission could lead up to 250,000 couriers into unemployment. The argument: The proposed legislation would destroy the flexibility that makes the platform work function. The majority of platform workers, however, want to continue to be able to freely decide on their working hours.
“With this argument, the platforms want to turn their workers against salaried employment,” says Ludovic Voet, secretary responsible for platform work at the European Trade Union Confederation (ETUC), when asked by Europe.Table. This has nothing to do with reality, as Take Eat Easy or Just Eat already offer salaried employment and still allow their workers to choose when they want to work. “If platforms really care about their workers, they should come to the negotiating table with the unions and start collective bargaining like any other responsible employer,” Voet said.
DGB President Reiner Hoffmann expressly welcomes the proposal: “Digitalization has created a shadow labor market on labor platforms that urgently need fair rules. It is therefore high time that the EU finally wants to bring light into the darkness and that work via digital platforms no longer takes place in a legal vacuum.”
“From my point of view, this is absolutely a step in the right direction,” commented Dennis Radtke (CDU), MEP and social policy spokesman for the EPP Group, in response to a question from Europe.Table. As shadow rapporteur for the EPP, he played a decisive role in the own-initiative report, with which the European Parliament had already formulated concrete demands to the Commission in mid-September on how working conditions on online platforms should be improved. “The proposal takes up in many places what we as a Parliament also demanded in our own-initiative report. Together, we now have a great opportunity to improve the rules of the game in the platform economy – both for employees and with a view to fair competition,” said Radtke.
Before the directive can enter into force, it still has to be negotiated in the European Parliament and the Council. Once the two co-legislators in the trilogue find a common position with the Commission, the member states will have two years to implement the law.
Our editorial team will supplement this overview in the coming weeks with further names and functions as soon as they are known.
If you want to keep track of further personnel developments, check this link regularly to see what further developments we can share with you.
You are also welcome to send further suggestions for additions to editorial director Till Hoppe if you know of any other personnel decisions before we do.
One of the most striking messages from the new German coalition agreement refers to the rule of law in the European Union. The so-called traffic light parties not only urge the EU Commission “to use the existing rule of law instruments more consistently and in a timely manner,” but they also maintain that Berlin will only agree to release recovery fund money for countries like Hungary and Poland “if preconditions such as an independent judiciary are met”.
This wording echoes Dutch Prime Minister Mark Rutte’s statement from late October, claiming that he could not see the money for those countries being disbursed as long as the dispute over the rule of law persists. His Belgian peer Alexander De Croo was even more blunt. “This is a fundamental political problem that needs to be solved politically, by the European Council and by the European Parliament,” he said in a speech which shocked Warsaw to the extent that the Belgian ambassador was summoned by the Polish ministry of foreign affairs.
No doubt, there is a new tone in the European debate on the EU’s fundamental norms and values. Until recently the battle over the rule of law was exclusive territory of supranational institutions – the Commission, Court of Justice of the European Union, and the European Parliament. The EU member states happily outsourced to them this unthankful job of bringing EU’s black sheep to the fold. Angela Merkel was most instrumental in stressing that the rule of law is a European issue and thus the EU institutions should deal with that – as if the member states were not the real masters of the EU treaties.
Behind the curtains, Germany stepped on the brake in the conviction that an escalation of the conflict would tear the EU apart. This depoliticization of the rule of law issues – delegating them to technocratic and judicial bodies instead – resulted in those bodies expanding the use of their instruments and powers.
The Commission resorted to infringement procedures, usually used to ensure compliance with boring sectoral regulations, to defend independent courts and thus foundations of the democratic order. The CJEU stepped in with rulings requiring dismantling some key pillars of Poland’s judicial system – only a few years ago, an unthinkable move even for those most critical about the court’s alleged power grab.
While European politicians were holding back, a silent institutional revolution was underway. To be sure, principled defenders of democracy criticized the lack of enthusiasm and slowness with which the Commission was rising to the rule of law challenge.
But the belief that technocrats and judges could solve the largest political problem of our time, the rise of neo-authoritarianism in the center of Europe, while democratically elected leaders would play good cops, may have always been no more than a dangerous illusion.
Indeed, the crisis has only escalated. The Polish government demolished the guarantees of judicial independence, granted the minister of justice full control of the disciplinary system of judges and persecutes those who protest against this autocratic power grab. The backlash against the supremacy of EU law is spreading across the continent. In France, most contenders of Emmanuel Macron point to the Polish example as the way to go.
The collapse of the independent judiciary in an EU member state is the most serious blow to EU’s legal order. Denying the authority of the CJEU would make its breakdown perfect. No wonder that the politics of the rule of law are now hunting European leaders. They slowly realize that their strategy of waiting it out was akin to turkeys voting for Thanksgiving. It was this strategy which led the crisis swell to the extent that it cannot be contained without risky political involvement.
The time of reckoning is coming. Sooner rather than later, EU member states will have to decide whether to use financial leverage against misbehaving countries. Many believe that an open confrontation would destroy the EU. Emmanuel Macron is afraid that the Polish government could wreck the French EU presidency just ahead of the presidential election.
The Germans tend to hide behind their terrible past as an excuse for a light touch approach. Others fear that new exits from the EU could follow as a reaction against too much of insistence on what actually makes the European project. Or believe that allowing the Court of Justice of the EU to have too much say regarding national judges would destroy the institutional balance of power and pave the way for the federalisation by stealth.
These may all be noble objections. But their proponents do not see the forest through the trees. At stake is not least the question of whether the EU remains a bloc of democracies or starts eroding towards an association without a common destiny. Dismantling of the separation of power paves the way for authoritarianism.
The EU has always perceived itself as a gentlemen’s club taking respect for its internal rules for granted. But this image is outdated. European democratic leaders have no other choice than politically face up to them.
Most importantly, they should strongly endorse and defend the key role of the CJEU as the ultimate arbiter on the rule of law. This crisis has thought us – also because of the unwillingness of the EU member states to engage in political disputes – that there is no better way to protect the EU’s foundations. The fear of an escalation of a conflict is understandable.
But if the EU is a political family, then it must finally accept that even big quarrels very often have a purifying effect. The EU needs it more than ever.
Piotr Buras is the head of the Warsaw office of the European Council on Foreign Relations (ECFR). This article text is part of a cooperation between Europe.Table and the ECFR Annual Council Meeting on 9 and 10 December.
