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Brussels in no rush to act on rule of law spat with Poland

Good morning and welcome to Europe Express.

In the clash over Poland’s rule of law, the European Commission — as advised by Germany’s outgoing chancellor — is taking its time when it comes to any concrete action. The stalemate does mean that Warsaw won’t see any fresh EU funding anytime soon, which is in itself a form of punishment. We’ll bring you up to speed with what the latest thinking is after the escalating war of words in recent weeks.

Meanwhile in a show of force, Russian state gas company Gazprom has proposed that EU neighbour Moldova change its free trade deal with the bloc and delay its energy market reforms agreed with Brussels, in exchange for cheaper gas.

We’re also looking at Chinese social media app TikTok, which has come under scrutiny in the US and the EU for allegedly failing to protect teens and children on the platform.

And with a new round of Brexit talks on Friday, we’re exploring the latest twists in the long-lasting saga most EU officials have little appetite left for.

Polish purgatory

After weeks of an escalating war of words between Brussels and Warsaw, the dust is beginning to settle and the European Commission is showing no appetite to move fast and furious on the rule of law front, write Mehreen Khan and Valentina Pop in Brussels.

In the aftermath of last week’s summit, attended by Poland’s Prime Minister Mateusz Morawiecki, Europe Express has spoken to officials and diplomats on what happens next.

Following the summit Morawiecki warned the commission against launching the “third world war”. But for all his sabre-rattling, there is little prospect of immediate legal action from Brussels, other than the routine step of launching an infringement procedure. (Poland has 146 active infringements, but other countries including France and Germany also each have more than 100 such cases of alleged failure to implement EU law).

But lack of movement from Brussels is not necessarily a win for Warsaw. It also means the commission is likely to delay a decision to approve Poland’s €36bn in EU recovery funds.

Officials say last week’s summit has helped tone down tensions after a marked shift from countries which had previously drawn a line in the sand when the constitutional tribunal in Warsaw declared parts of the EU treaties to be unconstitutional.

After a conciliatory intervention from Germany’s Chancellor Angela Merkel and others, leaders agreed to let commission president Ursula von der Leyen handle the issue — with the emphasis on dialogue and delaying any immediate action on the rule of law conditionality mechanism tied to EU funding.

The restive European parliament, which has criticised the commission’s approach, is expected to lodge an official lawsuit against the delay over the tool later this week. But the MEPs’ activism is likely to be in vain.

Officials told Europe Express that the rule of law mechanism is unlikely to be triggered until the European Court of Justice delivers its verdict on the tool — a decision that is unlikely to come this year. A non-binding opinion from the court’s advocate-general is on course to be delivered at the start of December, according to officials, with the final judgment likely pushed into 2022.

At the same time, Brussels is also expected to sit on its hands over approving Poland’s recovery plan worth €36bn in loans and grants from the bloc’s post-pandemic recovery fund. (Poland filed the plan in May.)

The resulting impasse will hurt Warsaw, which could have accessed billions in pre-financing this year. (The money won’t necessarily be lost, but other countries which had their plans approved have been merrily tapping their pre-financing in recent weeks and months.)

Poland’s state of purgatory can have other financial consequences, including the potential freezing of lucrative cohesion money over potential breaches of fundamental values, and an outstanding €500,000-a-day fine plus interest deducted from any future EU payments over Warsaw’s failure to close a mine on the border with the Czech Republic.

Morawiecki’s retort that Poland will retaliate by disrupting EU legislation, including its landmark green policies, rings somewhat hollow in Brussels where most key proposals cannot be vetoed by a single country. Warsaw can solicit allies in the EU to muster up majorities needed to block laws, but even that is no easy feat.

Chart du jour: German emissions

Germany is the ninth-largest greenhouse gas emitter in the world. Wonder how your country is doing in terms of emissions vs. climate pledges? Click here to compare countries.

TikTok in the crosshairs

The Chinese-owned social media platform TikTok is starting to build a reputation as teenagers’ favourite app. But the company is also facing questions over what it is doing to protect children from inappropriate content and how it handles their data, writes Javier Espinoza in Brussels.

To counter its critics, TikTok is rolling out pop-ups that will give users aged 16 or under the option to choose who can watch their videos. Those aged 16 and 17 can also select who can download their videos.

But to US lawmakers, those measures are still judged to be insufficient. The company was grilled yesterday by senators alongside Snapchat and YouTube.

“We need to understand the impact of popular platforms like Snapchat, TikTok and YouTube on children and what companies can do better to keep them safe,” said Richard Blumenthal, a senator from Connecticut.

Just hours later TikTok was criticised by Europe’s umbrella organisation for consumer protection, BEUC, which complained to audiovisual regulators about their lack of action.

BEUC’s researchers earlier this year said TikTok was subjecting children to hidden advertising and inappropriate content that could hamper their physical, mental or moral development. As a result, BEUC filed complaints with the European Commission and national consumer protection authorities in February this year over breaches to consumer law.

BEUC complained that because the relevant audiovisual legislation has not been transposed in Ireland, where TikTok is based, the authority has said it cannot act. The deadline was a year ago and Dublin has yet to implement the EU’s directive and is subject to infringement proceedings in Brussels, the consumer organisation said.

“It is a serious cause for concern that because of one country’s failure to act, children across the EU are not protected against inappropriate content on one of the most popular video-sharing platforms,” said Ursula Pachl, deputy director-general of BEUC.

The body’s action comes against the backdrop of revelations by a Facebook whistleblower that showed the social media platform failed to respond to internal warnings about dangerous content, including on Instagram, a rival app to TikTok that is owned by Facebook and is popular with teenagers.

TikTok was not immediately available for comment.

Brexit Friday

It is two weeks since the UK and EU restarted serious negotiations to revise their post Brexit trade agreement. On Friday, the two principals, commission vice-president Maros Sefcovic and UK Brexit minister Lord David Frost, are set to meet for the second time since then — and neither a dramatic breakthrough nor a serious crisis is expected, writes Andy Bounds in Brussels.

Yet the Brits have insisted a new deal must be done within weeks, and even Sefcovic has talked of concluding things by the end of the year. So the crunch is coming.

The dispute concerns the Northern Ireland protocol, which kept the region in the EU single market for goods even after the UK left.

To avoid a border between Northern Ireland and the Republic of Ireland, which could reignite tensions with the Catholic nationalist community in the north, the UK agreed to checks on goods crossing the Irish Sea.

But after the onerous nature of those checks became clear, the UK demanded a renegotiation. The EU on October 13 outlined proposals to cut checks on retail food products arriving in Northern Ireland from Great Britain by 80 per cent, and reduce customs paperwork by half.

But the offer is conditional on the UK giving the EU access to customs data, and not diverging from some of its food standards.

London has made it clear there are “big gaps” between the two sides. So far Frost has concentrated his fire on ending the role of the European Court of Justice, the EU’s top legal body, which Brussels insists must remain the enforcer of single market rules in Northern Ireland.

But an appearance before MPs on Monday raised further media speculation that he is preparing a climbdown via a model where independent arbitrators assess complaints, with the ECJ only consulted if one side is unhappy with the result.

There must be “no role for the court to be the final arbiter of disputes at the summit of a system that imposes EU law”, he told MPs on Monday. Asked if he would rule out submitting to the ECJ in any form, he declined to say a simple “no”, as my colleague George Parker noted. “You can’t have the court of one party settling disputes between us,” Frost answered.

The EU refuses to discuss such a solution since the UK has not yet made any formal proposal about it.

Frost also claimed the EU was taking retaliatory action in other areas. It was stalling on the UK’s continued membership of Horizon, the science research network under which Brussels funds cross-border research projects.

The commission said yesterday that a transitional agreement meant UK universities could continue to bid for funds, in the expectation that Horizon membership would be extended by the time it came to disburse them.

In EU capitals there remains little sympathy with the British position. “When you sign a deal you should stick to it,” said one EU diplomat. “We all thought Brexit was done. We have so many other issues to deal with.”

What to watch

  1. European Commission presents its Basel III bank capital package

  2. EU Green Deal chief Frans Timmermans meets China’s special climate envoy Xie Zhenhua ahead of this weekend’s G20 meeting and the UN climate summit next week

Notable, Quotable

  • Chinese pressure: Critics of China have reacted angrily at the cancellation of events to mark the publication of a new German book about President Xi Jinping at the apparent behest of Chinese diplomats.

  • Covid vaccine: BioNTech has struck an agreement with Rwanda and Senegal to open the first manufacturing facilities producing messenger RNA for vaccines in Africa. The deal comes after US-based rival Moderna this month announced a $500m plan to set up an mRNA manufacturing plant in the continent.

  • Portugal woes: Lisbon’s six-year experiment with leftwing “anti-austerity” government will end this week in a political crisis leading to early elections unless António Costa, the socialist prime minister, can strike a last-minute budget deal with the radical left.

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