For EU, Poland is not yet lost

Paul Taylor

Why Europe better stand up to Warsaw’s illiberal rulers.

President of the Law and Justice party Jaroslaw Kaczynski | Pawel Supernak/EPA

GDAŃSK, Poland — Poland’s de facto ruler, Jarosław Kaczyński, is betting he can get away with emasculating his country’s constitutional court without incurring European Union sanctions.

To be sure, things are looking up for the conservative nationalist. Under President Barack Obama, the United States joined the EU in criticizing the weakening of the rule of law in Poland. His successor, Donald Trump, is more likely to give a pass to Kaczyński, a fellow anti-establishment nativist.

Yet Europe has plenty of tools it could use to help Poles resist a dismantling of their liberal democracy without having to resort to the implausible “nuclear weapon” of suspending Warsaw’s EU voting rights.

The parliamentary opposition may be divided and poorly led, but something of the spirit of Solidarity — the grassroots movement that overcame Communist repression — is reawakening to protect civil rights, freedom of speech and diversity.

As the women’s protest that forced the government to back down on a draconian tightening of the Roman Catholic country’s restrictive abortion law showed last month, there are plenty of Poles ready to engage in active resistance. In the words of the national anthem, “Poland is not yet lost.”

Since his Law and Justice party’s landslide election win last year, Kaczyński, who rules from the shadows without holding executive office, has taken a knife to the judiciary, the security services, public broadcasters and many of the checks and balances in Polish society. In his drive to purge cosmopolitan liberals and leftists, and replace them with “patriots,” the education system and the armed forces are next on the hit list.

His move to pack the constitutional court with loyalists, unseat the previous center-right government’s last appointees and expunge recent court rulings prompted the European Commission to open an investigation into the rule of law in Poland, with broad backing from member countries, setting Brussels and Warsaw on a collision course.

Blame Brussels

Kaczyński makes no secret of his contempt for the EU and its liberal values. He has spurned a face-saving solution worked out by Commission First Vice-President Frans Timmermans and Polish officials. He doesn’t want a compromise. He wants to confront Brussels and prevail.

That creates a dilemma for Commission officials. The next step the Commission can take in the legal procedure against countries that breach fundamental rights is to recommend sanctions. But this would require the unanimous consent of the other members, and is likely to be vetoed by Hungary’s Viktor Orbán, Kaczyński’s Central European partner in majoritarian autocracy.

The Polish leader could also turn such a move to domestic advantage, denouncing Eurocrats bent on thwarting the will of the people. Similarly, if the EU were to withhold funds for economic development and agriculture, he could blame Brussels, rather than his cronyism and unorthodox policies, for causing economic havoc.

And yet, Europe can’t afford to back away from further action against Warsaw. It would look weak and irresolute, handing Kaczyński a victory to the despair of Polish liberals and embolden him — and Orbán — to go further.

The Commission should not be left alone at this critical moment. The EU’s member countries must join together to send Warsaw a clear message: Europe is watching, and it will not allow Poland to slide into illiberalism.

“There is a strong concern in civil society that the West will get exhausted with quarrels with Kaczyński,” said Marek Grela, who was Poland’s first permanent representative to the EU and is now a professor at Vistula University. “The response should not be left to the EU bureaucracy but led by the member states who are listened to in Poland — by France, by Italy, by the Netherlands.”

Timmermans, who is determined to keep up the pressure on Warsaw, feels the same way. “There is a lot of tacit support across the EU… but we (the Commission) can’t do this on our own,” he said. “Others need to pick up the ball as well.”

European response

Despite pessimism in Brussels, European leaders can do much to rein in Kaczyński. Under center-right former Prime Minister Donald Tusk, who now chairs EU summits as president of the European Council, Poland gained influence in Brussels and Berlin. That counted when it came to responding to Russia’s seizure of Crimea and destabilization of Ukraine, or to making Central Europe less dependent on Russian energy supplies.

By contrast, an isolated Poland will find it harder to secure money, military protection or support over gas pipelines, as well as foreign investment, which is already drying up.

Whatever Kaczyński and his supporters may say, this matters to Poles. They need Europe’s support, not just financially but also politically and diplomatically in standing firm with Moscow.

In crafting their response, European leaders should listen to Polish intellectuals who are urging EU action to raise pressure on Kaczyński, sustain civil society and prepare for a restoration of liberalism when he eventually loses power.

Marek Wasilewski, editor of the cultural journal CzasKultury based in Poznan, said the EU should take at least some symbolic sanctions, such as a temporary suspension of Poland’s voting rights, to show it is not toothless.

“The government is playing with the EU on the assumption that it will do nothing, that it’s a talking shop. So sanctions are a necessary step to prove the EU institutions can do something,” he said. “The abortion protests show that when they feel huge pressure, they step back. But only when they can feel real resistance.”

Pressure, not sanctions

While civil liberties have deteriorated in the year since Law and Justice took power, there are still significant counter-powers, including a majority of regions and cities run by the pro-European opposition, privately owned media and numerous civil society groups. The spontaneously created Committee to Defend Democracy (KOD) has staged mass protests in dozens of towns across Poland.

“What we need is more political pressure, not sanctions,” said Aleksander Smolar, president of the Stefan Batory Foundation, which promotes an open, democratic society. “European commissioners and foreign ministers should visit Poland every month and speak out to keep the issue in the headlines. Poles care about how others see them.”

Other EU countries should issue a joint declaration of concern about the erosion of civil rights and the rule of law and raise the issue in every contact with the Polish government, he added.

Mateusz Kijowski, an IT entrepreneur who founded KOD a year ago, says Polish ministers and politicians should be questioned about breaches of EU treaty principles each time they travel abroad. “We need strong pressure coordinated with inside forces,” he said.

On the economic front, without suspending aid to Warsaw, the Commission could declare that the absence of independent judicial scrutiny and the sacking of experts means it can no longer certify that EU funds are being properly spent, Grela suggested. This could justify additional safeguards before structural or agricultural funds are disbursed, upsetting Warsaw’s budget planning.

Wasilewski said the Commission should reroute EU money through regional and municipal authorities, sidestepping the central government. “If you simply take money away, you could turn very pro-European Polish society against the EU, but re-routing it creates enormous pressure on a government which needs EU money to enable it to pursue its policies such as paying 500 zloty (€125) for every child,” he said.

The EU can also do more to support civil society, as the West did in the 1980s after the communist government outlawed Solidarity. It should aggressively promote cultural exchanges and twinned towns to convey a message of hope.

KOD’s Kijowski requested financial support for the democracy movement when he visited Paris and Brussels. While European Parliament President Martin Schulz received him, other EU leaders have not found the time. They should do so.

Finally, the EU’s main pan-European political parties should bring together Polish opposition politicians around a common platform to support democracy.

For historical reasons, Germany has had to take a back seat in criticism and action against Poland. But Berlin joined Paris last month in scrapping a planned summit of the so-called Weimar Triangle, created after communism collapsed to engage Warsaw with Europe’s two leading powers.

The message to Kaczyński was clear: As long as you go on behaving this way, you are not fit to be a partner in European leadership.

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