In the battle over the rule of law, Poland is splitting the European Commission at its highest level.

EU officials and diplomats familiar with the latest developments say on one side of the split are Martin Selmayr, the Commission's chief civil servant, and President Jean-Claude Juncker, and on the other is Frans Timmermans, the first vice president who has been leading the charge against Poland.

They say Selmayr and Juncker are ready to back away from the Article 7 disciplinary proceedings that the Commission has initiated against Warsaw — and which could lead to a loss of voting rights — because of fears that it could result in a series of potentially divisive votes by EU countries and ultimately fail to force Poland to undo its judicial changes. They want further talks with Warsaw instead.

A decision on whether to proceed with Article 7 — and if so, how aggressively — could have been taken as early as Wednesday at the weekly meeting of commissioners, according to one senior EU official. However, although Poland was on the agenda of the meeting, Maroš Šefčovič, a Commission vice president, told reporters the issue "was not discussed today.”

Timmermans, meanwhile, is urging the Commission to take a hard line and not ease the pressure until Poland's governing Law and Justice party repeals the judicial changes, including a controversial law on the Supreme Court set to take effect on July 3.

"The EU is largely defenseless in confrontation with illiberal democracies" — A senior Brussels official

“For the European Commission, but also for the European Council, Article 7 in the context of Poland is a hot potato,” said Ryszard Czarnecki, a Polish MEP and member of Law and Justice. “I think everyone or almost everyone wants to stop working on it — even people who are reluctant [about] the current government in Poland." Continuing to pressure Warsaw, he said, only creates "more support for the current Polish authorities.”

Some Commission officials said talk of a split in the Commission is mostly pro-Warsaw spin, and that Selmayr, Juncker and Timmermans are of one mind when it comes to the rule of law.

But while they ultimately want the same result — to bring Poland into line with EU standards — other officials in Brussels say the division reflects a sobering frustration. "The EU is largely defenseless in confrontation with illiberal democracies," a senior official said.

'Systemic threats'

In December, the Commission triggered Article 7 of the EU treaty for what it considered “systemic threats” to the independence of the Polish judiciary. The key concerns focused on the Polish government’s ability to remove up to 40 percent of the Supreme Court’s judges and the justice minister’s power to discipline judges. Separately, the Commission has sought redress through the European Court of Justice.

While the Law and Justice party proposed changes to its legislation, Timmermans said at a recent press conference that the main issue remains “how much political control can you have to be able to say that the judiciary is independent, and we have some concerns there.”

Supporters of Timmermans' view are hoping the EU General Affairs Council — meetings of foreign affairs and Europe ministers — would, at a meeting on June 26, send a strong signal that the bloc is not backing down by scheduling a hearing on the Poland case.

If it does call for a hearing, member countries would get to vote on moving to the next phase of the Article 7 process — known as the “sanctions mechanism.”

At least a four-fifths majority, under the Council's qualified majority voting system, would be needed to proceed. But even if the Commission secures the necessary support, calling such a vote would be a divisive step at a time when the EU is trying to tackle numerous other challenges including reform of the eurozone and drawing up a new long-term budget.

Partly as a result of the disagreement over how to proceed, and partly because the EU is wrestling with other challenges, officials say they expect further action in the rule-of-law fight to be delayed for weeks if not months.

Theoretically, Article 7 can lead to an EU country being stripped of its voting rights in the European Council. But that final, severe punishment would require a unanimous vote and allies of Poland — including Hungary — have long said they would prevent it.

On the up

Dialogue between Brussels and Warsaw has improved since a government reshuffle in Poland in December and the appointment of Mateusz Morawiecki as prime minister. While Timmermans has led negotiations for the Commission, officials said Selmayr has met privately with Adam Bielan, the deputy speaker of the Polish senate and ally of the Law and Justice leader Jarosław Kaczyński, Poland's most powerful politician.

One EU official briefed on the process said the tension between Selmayr and Timmermans is widely known and has been building for months. “Selmayr told Bielan he’d like to close down the issue of Article 7 against Poland,” the official said.

“Many people would like to close this file,” the official added. “It’s in nobody’s interest to pursue Article 7 proceedings, especially now with political events in Italy. It’s better to have appropriate relations with the Poles.”

But the official acknowledged the political difficulty of taking such a step.

“It will mean that they recognize they have made a mistake,” the official said, adding that the most likely result would be further delay.

An EU diplomat said that Timmermans is advocating a more principled approach, while Selmayr and Juncker seemed to favor pragmatism.

“There are different views on what to do next,” the diplomat said. “Timmermans and Selmayr diverge quite substantially on this. Timmermans would rather go forward with the Article 7 procedure. Juncker and Selmayr have more of a political view on this."

The diplomat said that Timmermans, who is the Dutch commissioner but faces an uncertain future because his party is no longer part of the governing coalition, is also trying to position himself ahead of next year's European election.

"Timmermans wants to deliver on this," the diplomat said. "Because what we hear is that he made a proposal to stand as Dutch candidate for the Commission or run for a seat in the European Parliament.”

Law and Justice party officials in Poland and Brussels insist they have already offered sufficient concessions to the EU and will not back down further. They have also accused the EU of singling out Poland for making changes to its judicial system that are within its sovereign rights and, they insist, would raise no concerns if adopted in a Western European country.