The election of Andrzej Duda to the Presidency of Poland, and the illiberal populist surge of the Law and Order Party (PiS) in Poland have set the country on a collision course with Brussels over the Rule of Law which threatens the fabric of the European Union.

On June 28, 2020, the Polish citizens were given a choice. Before them, two candidates vied for the Polish Presidency — the election of either of whom would inevitably set the future course for Polish politics, both domestic and international. The resulting victory of Andrzej Duda is a harbinger for greater discord between Warsaw and Brussels, as the policy positions of the Law and Order Party (PiS) under whose name he ran are likely to run afoul of Poland’s commitments to the respect for the rule of law, tolerance, and non-discrimination as enshrined in Article 2 of the Treaty of the European Union (TEU). 

Not only would Warsaw’s refusal to adhere to these principles, representing the founding pillars of the Union and the common baseline for collective EU action, indirectly influence Poland’s relationship with Western European countries, but the result of the changes in Polish governance would come to clash with the EU’s very functioning — disrupting the customs union, the EU's legal framework, and mutual trust. A violation of these norms not only undermines the EU’s purpose as an economic project which relies upon the adherence to common standards protected by trustworthy justices across the EU bloc (EU27), but perhaps even more so as a political union which aims to speak with a single voice in domestic and international affairs.

Western EU Member States have called for a “decisive action” over the recent Polish developments. As Poland’s leadership now poses a direct threat to the functioning of the rule of law, the EU's response has fallen a great deal short of reversing its momentum, risking a potential fall of the Union in the foreseeable future if the mechanisms and Union's expectations do not change. Despite appearances, and as a result of its interconnected legislative and trade systems, the EU is in fact under a considerably greater threat from an illiberal member that corrodes its DNA from within than by an illiberal member state which opts to withdraw from the Union.

Amidst a swirling fog of conspiracy theories over national threats, broad societal polarization, and sharp criticism over the compromised state of the rule of law, Andrzej Duda won his election bid by just 2.4% of the vote over the opposition candidate Rafał Trzaskowki — a razor-thin margin. Based on a radical right, ultra-conservative platform, Duda’s campaign claimed that his goal as president would be to protect true "Polishness" (as defined by a root in conservative Christian values) while rarely exercising veto power over controversial legislation proposed by the ruling Law and Justice Party (PiS). His opponent, Trzaskowki, backed by progressive liberal political elites across the Visegrad Four countries (Hungary, Poland, Czech Republic, Slovakia), represented to his supporters the idea of a new Poland, carried forth by a renewed pro-European agenda and a clear geopolitical orientation towards Poland’s Western allies. His defeat now marks the beginning of a path towards a new nationalism in Poland which risks severing Warsaw’s long-standing ties with its democratic allies in the West, and serves as a harbinger for even greater resistance to collective action at the European level which could inflict immeasurable damage on the 70-year-old European project.

The Overrule of Law
Since its electoral breakthrough in 2015, the Law and Justice Party has attempted to prevent legislation from institutional scrutiny from Polish courts and sought to redefine Polish checks and balances in order to allow itself space for political maneuvering and the consolidation of  PiS control over other branches of government. Since PiS has held control over the lower house in the Parliament, the government approved 15 of 25 candidate members of the National Council of the Judiciary tasked with appointing justices and observing judicial independence. Not only were they nominated by the ruling party, but PiS asserted that the previously sitting justices reminded Poland of its “communist past” in an effort to discredit them.

According to the opposition party (the Civic Platform), this move rang the death knell of the separation of powers in Poland. In May of 2015, Duda ran for office as PiS’s presidential candidate. Despite resigning his party membership in the election’s aftermath, his support for PiS’ political agenda continues to govern his actions — signing into law several bills which significantly hamper the ability of the judicial branch to check the executive, allowing the government to punish justices on the basis of previous rulings, and supporting a widely-criticized media law which grants the government control over state media channels. 

Due to the COVID-19 pandemic, PiS’s planned changes to the courts’ structure and transfers of the judges are now postponed. Nevertheless, acute watchers of Poland anticipate that the post-2015 wave of reforms is likely to resume at the earliest opportunity and that Duda’s re-election will prove critical to the success of PiS’ policy agenda.

Catch Me If You Can
A failed attempt to link the coronavirus rescue funds to the rule of law in the Council decision on July 21, was considered a "great victory" by the ruling Hungarian Fidesz Party and other populist political parties, as it failed to connect the provision of funding to the upholding of Article 2 TEU. Polish reserves project an additional €63.8 billion to be added through the funding initiative — half of which will not require future refunding.

Despite the European Parliament’s mandate to determine the EU budget, southern Member States that have suffered most heavily from the economic blowbacks of the COVID-19 pandemic proved desperate to push for faster ratification and the arrival of relief funding than to combat Warsaw and Budapest to tie the funds to the rule of law mechanism. The required unanimity to release the EU’s rescue plan — consisting of a €750 billion coronavirus economic rescue package and a trillion-euro seven-year budget — forced the concession of providing a conditional though vague wording of the rule of law. The lack of follow-through from Brussels may signal to the United Right (a political alliance of right-wing parties across the Polish political spectrum of which PiS is a member) that the EU is either unwilling or unable to hold violations of its checks and balances to account.

On November 5, the European Parliament approved what some MEPs called a “historic” agreement which allows the Commission to propose the suspension of the funds to a member state which violates or threatens Article 2 principles. Upon suspension, the Council has one month to adopt the measures by a qualified majority. Even if the agreement eventually acquires final approval by the European Parliament and the Council in the coming days and weeks, issues will inevitably arise.

First, while this vote will not be governed by the condition of unanimity-minus-one for Article 7, a qualified majority effectively means that rule-of-law-supporting northern Member States cannot act alone. Second, the agreement remains less ambitious than the European Parliament had originally hoped, as MEPs were unable to convince Member States’ negotiators to agree to require a qualified majority to overturn the Commission’s proposal once it arrives in the Council. This means that Poland will not have to convince a majority of states to block it — only a third. Understandably, many have come to view the agreement as a “lost opportunity” to introduce a vital barrier to democratic erosion in the European Union.

Third, the wording that “breaches of Article 2 principles should be sanctioned if they affect or seriously risk affecting the budget” is seen as vague, despite that the agreement provides a list of examples of such threats. Notwithstanding, the list provided is quite narrow in scope and provides no basis to assess “systemic” threats. Finally, Hungary and Poland are yet to sign off on their Own Resources Decision, and thus retain multiple ways to politically “blackmail” the EU by opposing individual aspects of the proposed budget. From the European Parliament’s recent discussions over the budget, it is evident that PiS' Deputy Prime Minister Jaroslaw Kaczynski is willing to veto the proposal for an economic recovery plan if it includes any article qualifying adherence to the rule of law in any shape or form.

While progress towards a rudimentary system of EU checks and balances to democratic governance has been made, it is incumbent upon EU Heads of State, representatives, and policymakers not to mistake the result of the inter-institutional trialogue for white smoke. Rather, the agreement must be evaluated as carefully and critically as possible, assessing the long-term benefits and drawbacks, as well as more immediate potential applications of the mechanism. Constitutional scholars predict that Von der Leyen’s Commission will be hesitant to make use of this tool in the first place. Policymakers attempting to safeguard EU institutions and values must continue to consider additional measures, constraints, and safeguards to protect the adherence to the rule of law and the democratic process within the European Union.

Regardless of whether or not EU institutions consider the rescue funds for the COVID-19 pandemic a favorable mechanism to pump the breaks on the deteriorating state of the rule of law in Poland, longer-term solutions remain elusive. Although Members of the European Parliament's LIBE have expressed concerns about the outcome of the Council’s negotiations, it warrants recognition that the Commission and the European Court of Justice’s (CJEU) previous attempts were unsuccessful. 

The Rule of Law Framework activated by the Commission in Poland on January 13, 2016, remains “discursive,” and thus lacks any tangible repercussions for the ruling PiS or the re-elected president that might induce their cooperation. Moreover, while the CJEU may launch an infringement procedure and dole out financial penalties, it may only do so for actions that directly breach the acquis communautaire — the body of laws over which the EU retains exclusive control. This is why even though the CJEU argued that the newly-enacted Polish legislation violates TEU provisions, the 2017 reforms regarding the retirement age of judges, ultimately impairing 37% of sitting justices, were targeted on the grounds of ‘gender equality in employment’ as opposed to the underlying issue over the rule of law. Finally, Article 7 TEU, often referred to as the “nuclear option,” depriving an offending Member State of its voting rights if the fundamental values are threatened, requires a unanimous vote to establish the precedent of a “serious breach” of these principles, rendering the threat of such action null and void. 

Earlier this year, the Commission announced that it would present the results of a new annual report designed to review the state of the rule of law in all EU Member States. Published on September 30, 2020, the report observed that Polish institutions are “under pressure” but failed to detail a way to bypass the trickiest part of the infringement processes — namely, the official recognition of the Member States’ violations. 

Two principal potential roadblocks remain to establishing an effective deterrence mechanism: 1) if the entire sanctioning mechanism retains Article 7’s premise of a unanimous vote, assigning Poland de-facto veto power rather than requiring a qualified majority vote, it will be useless upon its enactment, and 2) if the mechanism is riddled with easily-exploited loopholes to prevent its passage, as was the case with last week's agreement (which fueled skepticism from the side of the Irish and Dutch courts), the new tool will be at best ineffective and at worst counterproductive.

Dutch Prime Minister Mark Rutte — a long-standing critic of the EU’s ability (or lack thereof) to push Polish political bodies to scrape its controversial reforms — argued that as Hungary and Poland have each other’s back in the Council, the European Parliament must either put greater pressure on both states to reverse their authoritarian turn, or otherwise “the EU will re-establish itself without them.” In a similar vein, French Minister for European Affairs Clément Beaune suggested that sanctions for violating rule of law standards be attached to the recovery budget in a robust fashion, as financial solidarity requires a shared adherence to community norms. While the threats and condemnations of Polish actions become commonplace, real-world consequences for Poland are as yet notably absent.

‘Not So Much Because of Any Threat from Without…’
Yet the rhetoric coming out of Brussels and other European capitals is far from exaggerated bluster. Poland’s errant behavior undermines the trust of both industry and Member States in the Single Market, calling into question the very existence of the EU’s trade relationship with Poland, its 6th largest economy. Its refusal to comply with the EU’s calls to adhere to the rule of law may also influence the European arrest-warrant if Article 6 of the ECHR is called into question. Warsaw’s failure to comply with Article 2 standards is already negatively impacting the EU’s aim of equally upholding and applying EU law across member states due to the delays arising from the PiS' establishment of the Disciplinary Chamber — an organization which observes and metes out punishment to judges' for their engagement in any form of political activity — as well as from the PiS-controlled National Council of the Judiciary, which has led to a decreased number of Court’s judgments. 

To this end, Duda’s signing of an amendment to the Electoral Commission code in January of 2018 allows the government to use the National Electoral Commission to certify the validity of referendum and election results. Simply put, Poland is accused of lacking any independent electoral or judicial oversight, holding questionable trials, and demonstrating a lack of cooperation over disputes concerning Single Market goods. It is important to note that since 2015, Poland has repeatedly been openly criticized over all three of these violations, leaving the EU in a difficult position to strive towards an “ever closer union.”

What this ultimately means for the identity of the European Union moving into the 2020s remains unclear. At a glance, populist movements appear to be on the rise across the Union, spreading anti-EU sentiments to capitalize on disenchanted voters for political gain, in turn forcing the EU to redefine its own founding principles. Either the surge of support for illiberal populism will increase and there will be no need to polemicize voting on Article 7 if more than one state is ready to back another, and the judicial processes and custom union’s rules will adapt to account for discrepancies in Member States’ systems; or the EU will develop a mechanism to link structural and agricultural funds (of which Poland is the largest recipient) to the rule of law without which either does not require a unanimous vote or which requires only a small group of states to block the Commission’s proposal. Although the Commission recently rejected Polish grants after the government declared certain Polish cities as “LGBTI-free,” the former remains more plausible.

Duda’s re-election heralds detrimental consequences for both the future of Poland’s liberal democracy as well as the Union, whose internal functioning rests upon mutual trust and whose external action relies on the integrity of its values. In brief, not only will Duda’s victory fuel distrust to fill the vacuum in which European leaders are currently contemplating how to tackle the economic deficit caused by COVID-19, but the situation will provide a window of opportunity for emerging Eurosceptic strongmen from within and beyond the EU’s borders.

Assuming a holistic perspective of events, there exists one inescapable conclusion: while Brexit may have been the spark that lit the fires of illiberal populism which threatens the integrity of the European Union, its own threat to the European project is overstated. Whereas Britain’s departure is a single blow to the block, Poland’s far wider and more insidious deterioration of the rule of law is not limited to national borders. The departure of a single state from the Union leaves the EU in a far better position than if several members were to elect to smash its normative foundations from within. While there is a negotiating team responsible for dealing with Brexit, regarding the Polish on the rule of law, the EU remains largely defenseless.

Awaiting a Ruling of Laws
The narrative used by the Polish president during the election campaign touches upon all the historical traumas and assumed mistreatments of Poles which according to the United Right justify Duda’s support for PiS’ legislative changes. Duda is now empowered for his second consecutive term in office. A return of Poland to the pre-rule-of-law crisis paradigm seems unlikely. In a statement to Politico Europe, Commission Vice President for Values and Transparency Věra Jourová said that “if democracy does not work bottom-up and top-down, the Commission cannot do much if the things go too wrong in the Member State”. Have things gone “too wrong” in Poland? Probably. Will the EU soon find a way to sufficiently sanction such states despite the support from other EU members? Probably not. While the EU needs to keep pushing from the top, change must come from the bottom as Poland is — for the time being — a liberal democracy that elected Duda to office.

On September 16, 2020, President of the European Commission Ursula von der Leyen delivered her first State of the Union address in the European Parliament. It came as no surprise that the Union is not in a good state. After all, it is the belief in all twenty-seven states abiding by some common standards that essentially hold the Union together. The EU does not aim for “vetocracies” to reign, nor does it want to give the likes of Andrzej Duda, Jaroslaw Kaczynski, or Viktor Orbán a pass. However, the next Polish parliamentary election which might — or might not — put a backstop on this course of events will take place in 2023. If the European Union really is forged in crises, three years is plenty of time to build a new union vastly different from today’s status quo. To achieve it, the European Union must summon the means and will to take a hard look in the mirror and equip itself with the necessary tools to amend its faults — and soon.

Linda Tothova

Director, Wider Europe Programme (EETC Subprogramme)

Twitter | LinkedIn

Edited by: Torge Bartscht, Cameron Vaské

All views expressed in this article are solely those of the author, and do not represent the views of The International Scholar or any other organization.

Photo Credit:

• Andrzej Duda by Piotr Drabik, Flickr,
  https://tinyurl.com/y27de6mo