Remember the noises emanating from Brussels and Warsaw last year over concerns that Poland was slumping away from core European democratic rule-of-law principles? Help! The (sic) Polish Threat to Europe!

The European Commission threatened to ‘take action’ against Poland because Warsaw under the Law and Justice party was changing the rules and composition of Poland’s Constitutional Tribunal in a way that (the case went) ran counter to core rule of law norms.

This rather priggish assertion of EU-level authority always looked like a doomed effort. Why? Because it’s never a good idea to threaten ‘action’ unless you have the objective power to follow through on your threat. This is the definitive explanation of this elementary idea (NSFW):

In the EU/Poland case, it made no sense for the Commission to threaten Poland with rule-of-law infringement procedures when there were not going to be the member states votes in the end to launch such action. Faced with such bluster the Law and Justice duly ignored Brussels, haggling with the Polish opposition over the new rules for the Tribunal while counting down the clock through 2016 so that a ‘cooperative’ Tribunal head judge could finally be appointed.

Having won that round easily, Poland under Law and Justice management has rather made a fool of itself in trying to stop Donald Tusk continuing as President of the European Council. Tusk was Poland’s Prime Minister from 2007-2014 and has done a solid job as Council president. Why not let him carry on?

Law and Justice leader Jarosław Kaczyński has raised strong objections to Tusk, not least darkly linking him to the 2010 Smolensk air crash that killed former President Lech Kaczyński and dozens of top Polish officials:

“One wanted to kill our memory, as one was afraid of it. Because someone was responsible for the tragedy, at least in moral terms, irrespectively of what were its reasons,” Kaczyński said in a speech marking the sixth anniversary of the crash. “The former government was responsible for that. Not Ms Kopacz’ government of course, but Donald Tusk’s government”.

However, what do EU rules say about how a European Council president is chosen? They provide for ‘qualified majority voting’, not a formal consensus. Under consensus any one member state has a veto if it chooses to use it. Under QMV a number of states representing a set number of voters have to form a blocking minority to thwart a majority opinion. See here.

Thus, question. Even if Poland fervently objected to Donald Tusk staying on, could it muster enough support in other capitals to stop him?

This was never going to be easy. Mr Tusk is genial enough and non-confrontational. He’s a former Prime Minister, so other Prime Ministers on the Council will be wary of setting a precedent that leads to someone senior from Poland other than a former PM replacing him, as Warsaw proposed.

Against that Warsaw argued that it would be unprecedented for any top EU official to stay in office when his own country objected to him: Tusk was a ‘German candidate’, not a Polish candidate. Diktat!

Result? Mr Tusk was re-appointed with only Poland opposing. Even London decided to play safe on this one and not annoy other EU capitals for no obvious reason: the UK has Brexit fish to fry. Poland duly peeved.

Conclusion? Don’t waste time on losing battles.

In this case Warsaw made a power-play against Donald Tusk without having either the ultimate legal means to block his appointment or any real chance of winning enough EU capitals round to its view. It fought a battle that it was never going to win, thereby confirming whatever prejudices are out there about existential Polish eccentricity and introspection. Yes, it’s unprecedented for a Council president to stay on when his own country want him to go. But it’s also unprecedented for a country to try to heave one of its own citizens out of a very top EU job for no reason that anyone else can grasp.

To put this negotiation another way, for all EU capitals other than Warsaw Poland’s concerns about Donald Tusk were important. But they didn’t matter.

All of which said, maybe Law and Justice knew well enough that they were highly unlikely to win this one, but did it anyway to help ‘frame’ Donald Tusk in a negative light for many Polish voters to make it harder for him eventually to reappear in Polish politics and run again for President.

As and when Tusk does run again, he needs to avoid his 2005 rookie error of insulting millions of voters:

… the final second round TV debate between Presidential candidates Donald Tusk and Lech Kaczyński in Poland in 2005.

The Left-populist Andrzej Lepper had been eliminated in the first round, and his (mainly poor) voters were likely to incline to Kaczyński. Instead of trying to woo them in his own direction, Tusk made a serious mistake in excitedly accusing Kaczyński of being the sort of extremist who would attract such low-life support.

This allowed Kaczyński to say something to the effect of “Look, millions of Poles have suffered during Communism and the transition from it. We need to bring these deprived people in to the political mainstream, not insult and marginalise them!”

Kaczyński that night came across as much the bigger man. And won the election handily.

So Poland here lost on substance. My next post looks at Technique.