The EU must be tougher with Poland on the rule of law

Poland and EU

Unlike Australia, Mexico or the US, the 27-nation EU is not a federation in which paramount authority lies, in the last resort, with the organs of central government. Yet neither is the EU a pure confederation in which extensive powers are reserved to individual states. The EU is a hybrid polity, with federal and confederal elements that are in frequent tension, because of changing political conditions in its member countries and because its body of law never ceases to evolve.

In the intensifying showdown between the EU’s highest-level institutions and Poland, the bloc’s fifth-largest country by population, politics and the law overlap in complicated ways. There will be neither a perfect legal solution, nor a perfect political one. Each side has factors working in its favour, and each is making mistakes.

The most powerful legal arguments support the EU’s case. Fundamentally, the EU is making two points. First, Poland’s conservative nationalist Law and Justice (PiS) party has engaged in a systematic assault on the independence of the judiciary since it came to power in 2015. Its measures are incompatible with the principle, set out in Article 2 of the EU’s basic treaty, that the bloc is a union founded on the rule of law.

Secondly, European law has primacy over national law in judgments issued by the European Court of Justice, the EU’s supreme judicial authority. Without that, governments, businesses and individuals would be deprived of the legal certainty that underpins the EU’s single market and its other operations. Poland’s constitutional court, loaded with PiS sympathisers, therefore acted illegally in ruling last month that the government did not have to obey an ECJ order to suspend proceedings in a chamber set up to discipline judges.

The force of the EU’s abstract legal arguments contrasts with the weakness it has displayed in trying out various ways to bring Poland into compliance. Years of dialogue with the PiS-led government on the rule of law have failed to halt its attacks on judicial independence. The invocation in 2017 of Article 7 of the EU’s treaty, which could in theory lead to the suspension of Poland’s voting rights in the European Council, the decision-making body that groups the 27 nations, has likewise gone nowhere.

Now the European Commission threatens to ask the ECJ to impose fines on Poland, if the government fails to explain by August 16 how it plans to comply with the court’s rulings on judicial independence. There is also pressure, coming mainly from western European countries and the European Parliament, to withhold at least part of the €24bn Poland expects to receive from the EU’s post-pandemic recovery fund, unless the PiS-led government yields on the rule of law. The same threat hangs over Hungary.

The EU’s increasingly tough line is understandable but open to criticism. The EU is guilty of double standards insofar as other countries with deficiencies in the rule of law, including in western Europe, have never come under the same pressure from Brussels as Hungary and Poland.

True, the abuses are more serious in Budapest and Warsaw. But other governments in central and eastern Europe dislike what they see as the EU’s older member states lecturing the newer ones as if they are children in a classroom. Most were deprived of national freedom in the Soviet era and are more sensitive on matters of sovereignty than many western Europeans grasp.

That said, Poland’s government is making gross errors of its own. Its crackdown on judicial independence is indefensible. Its defiance of the supremacy of EU law ignores the fact that, when Poland joined the bloc in 2004, it knowingly signed up to a significant measure of pooled sovereignty.

The political strength of PiS lies in its unbroken series of electoral victories, presidential and parliamentary, since 2015. Unlike in Belarus or Russia, these elections were not blatantly rigged or contrived to present the illusion of free competition. The popularity of PiS has waned during the pandemic, but the harsh truth for the EU is that Poland’s moderate pro-European opposition is deeply divided. Even the return of the redoubtable Donald Tusk to national politics is no guarantee that the opposition will win the next parliamentary elections, due in 2023.

In other words, no matter how unpalatable the PiS-led government is for the EU, it still commands political legitimacy at home. This makes it less vulnerable to legal and even financial pressure from the EU. Until there is a change of government in Warsaw, the battle between the EU and Poland seems destined not to produce a clear winner.

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