For almost three years, EU institutions and member states have debated how to address backtracking on the rule of law in Poland. This discussion has focused on deploying punitive measures against the Polish government, a course that could ultimately lead to suspending not only EU funds to Poland but also Poland’s voting rights in the Council of the European Union. Yet in order to talk Warsaw out of its defiance, the EU will need to develop a comprehensive strategy to help make the Polish public more resilient to the government’s populist narrative.
BEYOND PUNITIVE LEGAL MEASURES
Since the Law and Justice Party (Prawo i Sprawiedliwość; PiS) came to power in Poland in 2015, it has increased its control over public media and the courts. Recently, the party made headlines when it attempted to change the makeup of the Polish Supreme Court, which among other things adjudicates on the validity of parliamentary, presidential, and European elections. PiS claims that the public does not hold judges in high regard because many of them allegedly adjudicated in communist times, and it argues that its reforms will help draw a line under Poland’s murky past and rebuild public trust in the Polish judiciary.
The EU, however, has not accepted this narrative and is concerned that the PiS judicial reforms are part of a wider attempt to weaken democratic checks and balances. Indeed, the Economist Democracy Index, which has looked into the state of democracy worldwide since 2006, has pointed to the deterioration of democratic indicators such as media freedom in Poland.
The European Commission has tried to talk the Polish government out of taking steps that are widely seen as undermining the rule of law, and which violate the EU values that Poland accepted upon its accession in 2004. At the start of 2016, the commission launched a dialogue with the Polish government to assess the situation. When these negotiations failed, the commission triggered Article 7 of the Treaty on European Union (Article 7 TEU), which allows the EU to suspend certain rights from a member state that violates the EU’s founding values, including the rule of law. This act could potentially lead to the suspension of Poland’s voting rights in the Council of the European Union. It is unlikely, however, that the other EU member states will unanimously back the commission’s efforts to punish Warsaw. The commission therefore decided to launch infringement procedures against the Polish government, hoping that legal pressure would help bring PiS to heel.1 The EU also has considered using financial pressure to counter the present negative trends in Poland.
The country is a net beneficiary of the EU budget, and it could be in trouble if member states support the commission’s proposal from May 2018, which provides that from 2021 onward the commission would be able to suspend EU payments to member states that undermine judicial independence (unless a qualified majority of member states explicitly reject this decision).
Nevertheless, the commission will fail to restore the rule of law in Poland if it sticks only to these punitive instruments. It will have to complement them with a positive set of measures to ensure that the Polish public understands the EU’s motives for intervening. Poles are pro-European, but they are vulnerable to the PiS narrative that Brussels has no right to tell Warsaw what to do. After the commission launched Article 7 TEU, 43 percent of Poles thought that triggering it was unjustified, 38 percent thought that it was justified, and 19 percent were undecided. Poles also are split on whether the European Court of Justice (ECJ) should weigh in. Fifty-four percent of Poles think that the ECJ should stop judicial reforms if it concludes that Warsaw has violated EU law, but more than 40 percent disagree—even though Polish courts are considered to be EU courts when they apply EU law, and so member states are obliged to ensure the independence of their national judiciary.
If the commission does not help to increase public awareness of Poland’s obligations as an EU member state, its actions against Warsaw risk provoking a public backlash. After Poland joined the EU, political elites portrayed membership mainly as a source of endless benefits for Poles—including free movement of workers to other EU countries, passport-free travel within the EU, and EU funds for infrastructure development—rather than as a community of law and values. Poland’s own commitments to the EU were pushed into the background in public discourse. This messaging has played into PiS’s hands; for example, the party claimed that the commission’s intervention in Poland is driven by its willingness to punish Warsaw for refusing to accept refugees.
The EU will have to counter this toxic domestic political narrative if it is to have any hope of asserting its authority in the eyes of the Polish electorate.
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