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March 13, 2017

Poland and the future of the EU

The Polish government’s defeat over the re-election of Donald Tusk falls in the category of diplomatic own-goals. Yet when Beata Szydlo got home back from the summit, she was greeted by her party boss Jaroslaw Kaczynski with flowers, and praise for having stood against the rich and the mighty. The echo in the state-controlled Polish news media was similar. This was a historic victory.

We might smile at this posturing, but the bigger question is where will this lead? Poland’s foreign minister, Witold Waszczykowski, told a Polish newspaper over the weekend that Poland will now start to block EU initiatives for which unanimity is required. They will, however, stop short of boycotting the European Council. The following is not a sentence you often hear from a top European diplomat.

“You have to show teeth, and demonstrate an ability to act negatively.”

He also questioned the legitimacy of the vote. The Maltese presidency asked whether anybody opposed Tusk. Only Szydlo raised her hands, and that was it. There was no debate. Not even a proper vote, he said. They didn’t even bother to cast a formal vote between Tusk and Poland’s counter-candidate. And he accused both Angela Merkel and Sigmar Gabriel of lying. Both had apparently signalled that they were open to new candidates, but both turned against the Polish government in the last minute he said. This is, of course, not true. Merkel always supported Tusk.

Konrad Schuller recalls an episode from 2007 when Kaczynski, then prime minister himself, wanted to increase Poland’s influence through an EU-level voting system based not on the size of the population, but on the square root of the size. "Square root or death" was Kaczynski’s slogan at the time. Schuller’s FAZ article suggests that we are once again in an "or death"-type episode.

Schuller makes a comparison between the increasingly anti-German discourse in Poland and Racep Tayyip Erdogan’s recent Nazi outbursts. He quotes a religious MP, member of Kakzynski’s PiS, as saying that Tusk no longer had the right to associate himself with the red-white colors of the Polish flag. All he now has is the "brown tradition" - a reference to the Nazi color.

FAZ had three articles about Poland on its first two pages, a reflection of the concern in Germany about its neighbour. Another one, by Reinhard Veser, notes that Poland’s ability to forge any decision has been dramatically reduced since the weekend. Whatever you may think about Tusk, it is shocking to see how the government of a large member state can misjudge the power relations if it takes pride in its ability to forego any political alliances.

The question we are asking is whether this will bring a negative sentiment shift towards the EU within Poland. Support for EU membership is about 80% - so there is no groundswell of support for an exit - but the conspiracy theories of the Polnish government, if believed, could shift political sentiment.

Wolfgang Münchau writes in his column that the combination of Brexit, Poland’s antics, and extraordinary political and economic challenges, will ultimately leave the EU no choice but to pursue a strategy of variable geometry. This can take two forms - integration on the basis of existing treaty law, through the used of enhanced co-operation - or a separate legal framework. Münchau says that the enhanced co-operation route has not worked very well, and has been used only in a small number of areas. But a treaty revision is out of the question because it is likely to be voted down in at least one member state. This means that there is no alternative to muddling through under the current legal framework. Change would thus require a process of disintegration, followed by reintegration under a different legal basis - one that would foresee a closer political union among a core group of countries, and various concentric circles around it. 

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March 13, 2017

Polls show 40% support for Costa's Socialists

In Portugal the conservative party PSD is losing support, and two polls show that they now got their worst-ever poll results. Only last year they were head-to-head with the Socialists in the elections, but since then they lost continuously and are now at 28%. Antonio Costa and his Socialists, on the other hand, defied all predictions. His minority government, supported by the Left Bloc and the Communists in parliament, is still running and their voter support is at an all time high at 40%. The chart below also reveals that the current constellation benefits the Socialists more than the two supporting parties, the BE and the CDU.

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March 13, 2017

Council of Europe questions Spanish constitutional court reform

We have pointed out in the past how Mariano Rajoy's strategy to deal with the Catalan separatist challenge is based on a judicial, not political, approach. In particular, at the end of 2015 the People's Party used its majority in the Spanish parliament to reform the law governing the constitutional court, to give the court the power to enforce its own rulings, especially to remove officials who refused to carry them out. This was criticised at the time as getting the constitutional court mixed up with criminal justice. Now the Venice commission, an advisory body of the council of Europe specialising in constitutional law, has released a critical analysis of the reform of the Spanish constitutional court. While upholding the legality of the reform, the commission questions whether it is sensible. The opinion will embolden both sides of the separatist conflict, making a head-on collision more likely.

The Venice commission starts by arguing that measures to enforce the judgements of the constitutional court are legitimate, because

"When a public official refuses to execute a judgement of the Constitutional Court, he or she violates the principles of the rule of law, the separation of powers and loyal cooperation of state organs."

On the other hand, the Venice commission stops short of claiming that giving the constitutional court powers of enforcement itself violates the principle of separation of powers:

"Attributing the overall and direct responsibility for the execution of the Constitutional Court’s decision to the Court itself should be reconsidered in order to promote the perception of the Court as a neutral arbiter, as judge of the laws. ... the division of competences of adjudicating on the one hand, and of executing its results, strengthens the system of checks and balances as a whole ..." 

Most of Spain's major newspapers - take El Mundo as representative - are reporting this as the council of Europe questioning the reform of the Spanish constitutional court. Only Expansión writes that the opinion "endorses" the reform but asks to "improve" it. The official reaction by the Spanish government stresses that the Venice commission affirms the legality of the reform.

Catalan media with a separatist orientation, by contrast, focus on the Venice commission's language that the reform "should be reconsidered", and see it as encouraging Catalan officials, when the time comes, to disobey the constitutional court. Take for instance El Nacional, which writes (wrongly, in our view) that the council of Europe warns Rajoy that the constitutional court cannot remove public officials; or the editorial from Vilaweb arguing that the opinion puts the Spanish government ultimately in a lose-lose situation, as either the Catalan government will eventually demonstrate it has control of Catalonia, or the Spanish government will demonstrate its inability to exert control over it. 

When both sides see outside events validating their position, a train wreck becomes more likely. We would argue that the Venice commission goes to the heart of the matter when it writes

"Disregarding such a judgement is equivalent to disregarding the Constitution and the Constituent Power."

Ultimately, the Catalan separatist conflict is about where the constituent power resides. A substantial fraction of the Catalan public considers that the people of Catalonia has constituent power, whereas an equally substantial fraction of the popultion of the whole of Spain would deny that and insist that the constituent power resides in the Spanish people of which Catalans are but a part. And it is not clear that this disagreement can be resolved by judicial means only.

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