A showdown is approaching in the conflict between Poland and the European Commission over the rule of law. Dialogue with Warsaw started after the ruling Law and Justice (PiS) party’s unlawful exchange of Constitutional Court judges in the autumn of 2015; the president refused to appoint judges elected by the former government, and PiS instead elevated their own. That dialogue did not change the government’s policy. Instead, Warsaw denies the Commission’s right to judge the government’s domestic moves, and continues to steer Poland’s illiberal turn.
In July, the government opened a new front with its reforms to the judiciary. To be sure, President Andrzej Duda suprisingly blocked two proposals that would have given Parliament and the executive considerable influence over the replacement and nomination of members of the Supreme Court and the National Council of the Judiciary. But a third proposal was adopted by Parliament and signed by the president. Among other things, the new law allows the minister of justice to freely dismiss any chief judge in the six months after the law’s passing. This is a severe impediment to judges’ independence. It was to no one’s surprise that the Commission started an official infringement procedure. But the time of the political outsourcing of the “Polish case” to the Commision seems to be over.
Europeanization and national interests
Germany‘s changing approach is most significant. For a long time, German Chancellor Angela Merkel believed it was best for Berlin and other capitals to stand aside in the spat between Warsaw and Brussels. Politicizing the conflict did not seem to serve the overarching interest of keeping the European Union united. Now the opposite view seems to be gaining momentum: that ignoring the persistent violation of EU standards presents a bigger threat than breaking the silence.
The conflicts between the populist Polish government and the EU institutions and member states go far beyond the fundamental rule-of-law issue. Warsaw wants to claim reparations from Germany; ignores the decision of the European Court of Justice to stop the logging in the Bialowieza forest; refuses to fulfill any commitments regarding the relocation of refugees; and picks political fights with Paris. Law and Justice characterizes the European Union as a political project that abandoned its Christian traditions to become an ideologically driven, leftist instrument designed to gradually homogenize Europe in line with the concepts of multiculturalism, secularization, and ecology. The latter criticism is most telling. After years during which Europeanization -- defined as the emulation of Western standards along with EU integration -- defined the path of Poland’s transformation into a democracy, the ruling party now frames the European Union and Western Europe as a risk rather than opportunity for the country.
The Commission will be tempted to trigger Article 7 of the EU Treaty and ask the European Council to declare a severe threat to the rule of law in Poland. The required yes vote of 22 member states to trigger this procedure seems to be within reach. The political price for Warsaw would be huge, even if formal sanctions, specifically expressed as the withdrawal of voting rights, are rendered unlikely by the need for a unanimous vote. But there are no signs that informal Law and Justice party leader Jaroslaw Kaczynski will back down under EU pressure. Just in opposite -- this autumn we may witness a further hardening of his political course, including Hungarian-style restrictions on non-governmental organizations and a clampdown on local media.
Those who hope that the trend toward illiberalism and de-Europeanization will be stopped must closely follow two developments in the country’s deepening crisis.
First, a short-term respite may be brought about by disagreements between Parliament, which is fully controlled by Kaczynski, and Duda, who is from the same party. By vetoing as he did in July two legislation proposals that would advance the judiciary reform far beyond what is acceptable in the framework of separation of powers, Duda for the first time dared to challenge Kaczynski and signaled his own ambition to lead Poland’s political right. Optimists, including those among the European Commission, hope that Duda might stop some the government’s most dangerous reforms -- not so much out of any genuine liberal-democratic convictions as for the sake of underlining his political independence. But his space for manuever is very tight. Despite his rising popularity Duda needs the party’s support to be re-elected. He can hardly afford an all-out political war. PiS is still very strong, and with 40 percent support sits well ahead of the liberal opposition in the polls. PiS has delivered on its promises to financially support society’s poorest, and the economy is running at full speed, notching 4 percent growth.
A long-term reversal of the current trends will not be possible without a change of government. Patience will be needed. Still, the hopes of defenders of a pro-European and liberal-democratic Poland are not without merit. Protests against the judiciary reform this summer catalyzed a long-awaited mobilization of young voters. More than 50 percent of Poles do not support the illiberal reforms, and many wish for a more integrated Europe. (Support for Poland’s EU membership registers over 80 percent.) Will those figures translate into political backing for the opposition? To prove the urgency of their claim that the destruction of liberal democracy by PiS must be stopped, liberals would have to overcome their party divisions and come up with a convincing policy alternative beyond criticism. And a new modern left will be necessary to attract those fed up with the conservative-liberal duopoly in Polish politics. No doubt the hurdles are high, as are the stakes in this battle for Poland’s future. The policy of illiberalism and de-Europeanization is leading the country astray and weakening the European Union at a time when it can not afford it.
