Polish thorn in Europe’s side

While the UK and Europe quibble over how Brexit will roll out — including the hefty divorce bill, border agreements and citizenship rights — the EU’s eastern member states are also becoming a thorn in its side.

Poland’s populist conservative government has drawn a sharp rebuke from the European Commission over policies that, according to the commission, undermine the rule of law and democracy. And like the Brexit camp in the UK, Poland’s ruling Law and Justice Party, known as the PiS, is trying to use the friction with the EU to whip up support at home.

The dispute between the EU and Poland underlines the difficulty that the union faces in reconciling the ideologies of member states, a growing number of which have elected populist leaders, such as Jaroslaw Kaczynski in Warsaw, Viktor Orban in Budapest and, most recently, Sebastian Kurz, Austria’s incoming chancellor.

As it faces these new challenges, Europe needs to promote cohesion to cope with the loss of one of its most prominent members and redefine the relationship between the remaining 27. To do so may require a redefinition of how the EU treats its disgruntled members.

In the Polish case, the commission has sent Kaczynski two formal notices in the past four months warning that his government has violated Poland’s commitments to European values by putting the entire judicial system, including the constitutional court, more firmly under party control.

The commission gave Kaczynski until mid-October to respond to the second warning, known as a reasoned opinion letter. Poland’s response has not been released to the public.

The trouble is, the commission can do little else to force the Poles to toe its line.

“The EU can only make declarations and statements, which are generally powerless and don’t mean much to the PiS,” said Aleksander Fuksiewicz, an analyst at the Institute of Public Affairs in Warsaw.  “It can basically ignore them.”

Kaczynski has been pushing a Euro-skeptic agenda since the PiS came to power in 2015. It tabled legislation shortly afterwards to transform the judicial system from being largely self-regulating to being vulnerable to influence by the ruling party.

For example, new laws would give the justice minister discretionary powers to prolong judges’ term in office and to appoint court presidents who may decide on the application of federal law. The EU contends these measures have politicized an important pillar of Polish democracy.

However, opinions vary on the reforms. Some note that after the fall of the Soviet Union 27 years ago and the founding of a new, democratic Polish state, the judicial system was built more on good intentions than solid foundations.

Many Communist-era judges have retained their comfortable, well-paid positions, enabling them to apply the law as they see fit. “There was an assumption that the judges would clean their own ranks, that they would manage to discipline themselves,” said political scientist and commentator Aleksandra Rybinksa. “This assumption turned out to be false. Kaczynski’s judicial reforms are part of the party’s commitment to righting those historical wrongs.”

Yet as far as the EU is concerned, the PiS is a wayward nationalistic party, with little concern for democratic institutions and practices. In a July 2017 press release, the European Commission took the view that “this reform amplifies the systemic threat to the rule of law in Poland.”

Poland is not the only country whose autocratic tendencies have fallen foul of the commission. Hungary has also received formal notices after its government rejected the EU’s migrant quotas, and it too has set in motion policies weakening democratic practices.

In Poland, the EU’s complaints have fuelled support for Kaczynski. “It doesn’t really matter what the EU thinks. He wants to have more power, and he is doing everything to get it,” said Fuksiewicz. “These tensions are only for internal politics and only in the interest of the party itself.”

Kaczynski has portrayed his struggle against the EU as a defence of national sovereignty against what he sees as the intrusive federalism being imposed on Europe by German Chancellor Angela Merkel and her allies in Brussels.

“He shows himself as a politician who can achieve what others couldn’t, one who stands firmly in front of his country,” said Tomasz Sawczuk, political writer for Kultura Liberalna, a liberal media group in Warsaw.

Poland’s defiance comes at a time when the questions of how to redefine membership and rethink integration are near the top of the EU’s agenda. Supported by other countries with right-of-centre governments, such as Hungary and Bulgaria, Poland is critical of power being concentrated among the EU’s most powerful countries, notably Germany and France. It also resents the proposed concept of a “multi-speed” membership, which would allow members to pursue more ambitious integration goals at their own speed.

“The Polish government would like to see reforms going more in the direction that Britain wanted — gaining back competences from Brussels, bringing it back to the nations,” said Rybinksa.

Paradoxically, by antagonizing the EU, Poland has weakened the bargaining position that it feels it deserves. “The Polish government is by its own decision at the margins of the talks about about future integration,” said Sawczuk.

Though relations are tense, Kaczynski has no intention of a Polexit. “Kaczynski would say he is fighting the current version of the EU, one which aims at some kind of federalization of power in Brussels, and one that is subordinate to the will of Germany — an undemocratic EU,” said Sawczuk. A recent poll by CBOS, a polling institute in Poland, found that well over 80 percent of Poles continue to support their country’s EU membership.

In a bid to tighten the screws on Kaczynski, the EU has urged Poland to submit drafts of new legislation to the Venice Commission, an advisory body set up to protect human rights and the rule of law.

It was the Venice Commission that called out the PiS’s early attempts at judicial reform as being incompatible with EU law. Its conclusion prompted the European Commission to monitor developments in Poland more closely.

The Venice Commission concluded in a July 2016 report that the reforms proposing to replace Poland’s Constitutional Court judges “would be in flagrant violation of European and international standards.”

But many Poles remain leery of being brought to heel by ideologically driven eurocrats. The fight over the rule of law in Poland distracts from the much bigger problem the EU is facing, said Rybinska. “Instead of trying to resolve its main issues of migration, Brexit, and even of its own legitimacy, the European Commission spends its time involving itself in whatever law the Polish government passes.”

Sawczuk agrees. “The EU has to become more attractive than it is at the moment. It is not about how Brussels will get Poland in line, it is what Europe must do to get Polish people to want to get in line with Europe again.”