Sleepless in Sofia: Can Bulgaria save Poland from Article 7?

By January 29, 2018Uncategorized

Asya Metodieva (CEU) and Nick Sitter (CEU/BI)

 

It is the Bulgarians’ turn. When the Bulgarian government took over the EU’s rotating Presidency of the Council on 1 January, it was confronted with both a potential crisis and a golden opportunity to clean up the image of the country known to be among the poorest and the most corrupt among the EU’s member states.

Two hot potatoes – Brexit and Poland – feature prominently on the Bulgarian Presidency’s agenda. Of the two, the Polish question is likely to prove more difficult. Last December, the Commission gave Warsaw three months to reform its plans for judicial reform because these were found to present a risk that the rule of law might be undermined. At a ministerial meeting on 27 February the EU member states will have a first discussion with Poland on this matter – under Bulgarian chairmanship. But Bulgaria would prefer not to have to deal with the Polish case at all.

So far, the Bulgarian government has failed in its attempts to postpone discussions on the Polish case, and kick this particularly tricky ball into the long grass. The minister for the EU presidency, Lilyana Pavlova, observed that the case could easily drag into the second half of 2018, when Austria takes over the Council presidency. But this was not greeted with enthusiasm in Brussels. The Commission continues to emphasise the importance of the three-month deadline that expires in March.

The Bulgarian government – like some of the other Central European member states – is caught between its sympathy for a fellow post-communist state and its broadly pro-EU stance. This Balkan state, which joined the EU eleven ago, has not yet managed to reform its own judicial system and would rather avoid high speed and sharp turns on the Polish question. The prime minister said that rule of law issues are ‘so vague’ and difficult to measure that it is better not to bring them before the Council. Officials in Sofia have therefore expressed considerable reservations about the threat to punish Poland over democratic backsliding, and emphasized the challenges involved in forcing a decision at the EU level.

The first vote under Article 7 will be a decision whether there is a ‘clear risk of a serious breach’ of the rule of law in Poland. This requires the support of a four-fifths majority of member states, which means that six states (not counting Poland) voting no or abstaining is sufficient to block the decision. Hungary has promised to veto any subsequent vote to determine an actual breach, which requires unanimity. But if the EU cannot even muster the 22 votes needed to determine a risk of a breach, this could seriously undermine the EU’s credibility – especially during the negotiations on the Multiannual Financial Framework.

Last summer, Swedish Prime Minister Stefan Löfven suggested that countries that do not follow EU rules ought to be punished by suspending EU funding. At the time, he referred to Poland and Hungary’s refusal to accept refugee quotas. Since then the theme of linking EU funding to compliance with the EU’s fundamental rules and values has since gained traction. It has received some support from several (western) member states. Budget Commissioner Günther Oettinger has also publicly commented on the possibility of establishing conditionality as part of future funding arrangements. In the light of the Norwegian government’s successful confrontation with Hungary over the use of European Economic Area funds in 2014-15 – in which Norway suspended funding until Budapest stopped harassing EEA Grant-supported NGOs – this idea could prove attractive to the EU’s net contributors. But it would exacerbate the developing political cleavage between the north-west and the south-east in the Union.

Bulgarian PM Boyko Borissov’s immediate worry is that the EU member states might be called upon to vote on whether Warsaw breaks rule-of-law standards. He argues that this would create a ‘dangerous precedent’, and that such a vote should be avoided: ‘If we have to go voting, we will have sleepless nights to vote. I hope we do not have to face this’. Sofia therefore needs a compromise that will fudge the issue. On the one hand, the message is: ‘Poland should be listened to’ (Foreign Minister Ekaterina Zaharieva). On the other hand, Bulgaria hopes that its ex-communist fellow Poland will find a way to comply with the EU law.

And Bulgaria is not the only state in this position. Hungary openly supports Poland, and the Croat government has made sympathetic noises. The Commission’s recent warning to Bucharest about rule of law and corruption (24 January) might not make Romania too keen to go after Poland. And in the middle of Brexit negotiations, might London abstain in order not to lose friends in the east? Might a left- and right-populist triumph in the Italian elections on 4 March tip the balance? In any case, Vienna, Prague and Bratislava all have mixed attitudes to their ‘illiberal democracy’ neighbours.

Bulgaria will therefore play the role of balancer in the next 6 months. The Bulgarian Presidency is run under the theme ‘United we stand strong’. These words also feature on the coat of arms of the Republic of Bulgaria. The Presidency has promised to work on unity among the member states and the EU institutions. Its message needs to be ‘remain neutral and impartial’. If the Polish question comes to a vote – where abstaining will count in favour of Warsaw – that might well prove impossible. But if Bulgaria manages to postpone the vote, the EU could be facing an even bigger crisis in the shape of the future budget.

 

The authors are writing in a personal capacity and their views do not represent the TransCrisis consortium as a whole.

 

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