An ongoing row with the Commission will be debilitating for the government which will have to spend valuable time and political capital defending its reputation in the European arena. However, the ruling party has shown that it can fight its corner and the Commission\u2019s intervention could prove a double-edged sword for Poland\u2019s opposition.<\/p>\n
The Polish government \u2013 led, since last October\u2019s parliamentary election, by the right-wing Law and Justice (PiS) party \u2013 found itself on the back-foot in January following the European Commission\u2019s surprising decision to initiate a preliminary investigation of the country under the EU\u2019s so-called \u2018rule of law\u2019 monitoring mechanism.<\/p>\n
In 2014, the Union adopted the instrument, intended to address \u2018systemic\u2019 breaches of the rule of law and EU principles in any member state. It was meant to complement the so-called \u2018nuclear option\u2019 provision in Article 7 of the EU treaties that allows the European Council to impose sanctions on countries found to be in serious and persistent breach of fundamental EU values; in the worst-case scenario, suspending their voting rights. So far the Commission has agreed to the first step under the framework which involves undertaking a preliminary investigation of whether or not there are clear indications of a \u2018systemic threat to the rule of law\u2019 and initiating a dialogue with the member state concerned.<\/p>\n
This unprecedented move came in response to concerns about recent actions by the Law and Justice government in relation to the membership and functioning of Poland\u2019s constitutional tribunal, a powerful body that rules on the constitutionality of laws, and a new media law passed by the Polish parliament in January.<\/p>\n
The government\u2019s critics accuse it of undermining the fundamentals of Polish democracy and the rule of law by: ignoring the tribunal\u2019s rulings on the constitutiality of a law determining the body\u2019s membership and trying to curb its power to place checks on the government, as well as placing public broadcasting under direct government control. These actions, they argue, represent attempts to interfere in the independence of the judiciary and put Law and Justice party loyalists in charge of state TV and radio.<\/p>\n
Law and Justice tried to regain the initiative by undertaking a (somewhat belated) public relations offensive aimed at improving Poland\u2019s image within the EU institutions; re-assuring European leaders of the government\u2019s broadly pro-EU attitude and that it was committed to upholding the rule of law and European values.<\/p>\n
The government\u2019s supporters defended its actions as necessary measures to restore pluralism and balance to state institutions that they say had been colonised by supporters of, and milieu associated with, the centrist Civic Platform (PO) grouping, the previous governing party. More broadly, they argued that many Polish institutions have been expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite and claimed that opposition to the government was being orchestrated by political forces unable to come to terms with their electoral defeat and vested interests hostile to its plans to radically reconstruct the state and introduce sweeping socio-economic reforms.<\/p>\n
The centrepiece of Law and Justice\u2019s counter-offensive was (what even the government\u2019s critics admitted was) an effective intervention by prime minister Beata Szyd\u0142o in a European Parliament plenary debate on the political situation in Poland held in the week after the Commission\u2019s decision was announced.<\/p>\n
Although Mrs Szyd\u0142o\u2019s critics accused her of being evasive and misleading in responding to the Commission\u2019s concerns, in a calm and conciliatory performance she tried to de-escalate the dispute: insisting that the Polish government was open to dialogue and would co-operate to patiently answer all of the criticisms. However, Mrs Szyd\u0142o did not make any substantial concessions arguing that the constitutional tribunal dispute was an internal matter of a political rather than legal nature for Poland to solve on its own, and that the government\u2019s changes to public broadcasting conformed to European standards.<\/p>\n
Earlier, she tried to undercut the Commission\u2019s arguments by organising consultations with opposition leaders, for the first time since the new government took office last November, to find a compromise solution to the constitutional tribunal deadlock (unsuccessfully, as it turned out). The EP debate was also preceded by a visit to Brussels by Law and Justice-backed President Andrzej Duda who tried to lower the emotional temperature of the debate by meeting, and holding a (generally good natured) joint press conference, with EU Council President and former Civic Platform prime minister Donald Tusk.<\/p>\n
Law and Justice was helped greatly by the weak performance in the EP debate of Civic Platform, now the main opposition grouping. The Polish opposition enjoys close links with the EU political establishment and Western opinion forming media, many of whom share their dislike of Law and Justice, so it was assumed that the EP debate would be favourable territory for the party. Indeed, during party leadership election hustings with local activists, Civic Platform\u2019s new leader Grzegorz Schetyna (who was elected unopposed at the end of January) identified utilising the European arena as a key element of the opposition\u2019s anti-government strategy.<\/p>\n
However, the party was divided over which tactics to pursue in the EP debate: anxious to capitalise on the government\u2019s difficulties, but fearful of leaving itself open to criticism that it was weakening the country\u2019s international standing by using a European forum to air domestic political grievances. In the event, except for one brief intervention from a Civic Platform MEP, the party effectively sat out the debate and ended up with the worst of both worlds: apparently supporting the Commission intervention but only half-heartedly.<\/p>\n
In fact, the Commission has no powers to impose sanctions on Poland as the \u2018rule of law\u2019 framework only constitutes a political dialogue without any legally binding recommendations. These can only arise if the Commission proposes them to the EU Council under Article 7 where they require unanimity in one of the three stages of voting; and the Hungarian government has already made it clear that it will veto any attempt to introduce such measures.<\/p>\n
But Mrs Szyd\u0142o\u2019s effective EP performance \u2013 and, more broadly, Law and Justice\u2019s public relations counter-offensive \u2013 have not ended the conflict between the Commission and Poland. While the government is keen to move political debate back on to \u2018normal\u2019 socio-economic issues, where Law and Justice feels it is more in tune with public opinion than its liberal and centrist opponents, the Commission\u2019s \u2018rule of law\u2019 investigation process could be a lengthy one, potentially forcing the Polish ruling party to spend valuable time and political capital responding to criticisms and defending its position in the European and international arena.<\/p>\n
The Commission has said that it will return to the issue in March after the Venice Commission, an advisory body of the Council of Europe (a non-EU organisation which aims to uphold democracy and the rule of law), issues an opinion on Poland\u2019s constitutional tribunal reforms. If the matter is not resolved by then, the Commission can issue a \u2018rule of law recommendation\u2019 giving Poland a specific time period to address the problems it has identified. If it still considers that the problem has not been dealt with to its satisfaction, the Commission can then recommend the invocation of Article 7.<\/p>\n
At the same time, the constitutional tribunal crisis looks set to rumble on with most of Poland\u2019s opposition parties rejecting a government proposal to resolve the crisis by replacing the tribunal\u2019s membership with eight judges nominated by the opposition and seven by the ruling party. It could also re-surface as a major issue of contention this month when the tribunal expects to rule on the constitutionality of amendments to the law determining its functioning passed by the Polish parliament at the end of December; which the government argues has already come into force and the tribunal has no power to review.<\/p>\n
At this stage, it is difficult to tell how Poles will react to any further EU interventions. On the one hand, many of them are quite sensitive to international opinion, and understandably wary of anything that might lead to the country losing influence which could make it more difficult for Poland to promote its interests within the EU.<\/p>\n
Not only do Poles still support their country\u2019s EU membership overwhelmingly, but one of Law and Justice\u2019s opponents\u2019 most effective criticisms of the previous 2005-7 party-led administration was that it had isolated Poland within EU institutions by alienating the main European powers, particularly Germany, and created the perception of the country as an unreliable and unstable EU member. This charge was strongly rejected by Law and Justice supporters who, for their part, argued that it was the previous Civic Platform-led government that failed to advance Poland\u2019s interests effectively within the EU in spite of locating the country squarely within the so-called \u2018European mainstream\u2019 and enjoying extremely close relations with Berlin.<\/p>\n
Moreover, notwithstanding the potential threat that isolation within the EU might pose to Poland\u2019s tangible, material interests, at a more abstract level many Poles may feel particularly uneasy about the charge that the Law and Justice government is undermining so-called European values. This is because one of the key motivations for Poles voting overwhelmingly to join the EU in a 2003 accession referendum, and main reasons why levels of popular support for the country\u2019s EU membership have remained so high, was the idea that joining the Union represented a historical and civilisational choice: a symbolic re-uniting of Poland with a Western international community of shared values that they had always considered themselves to be part of culturally and spiritually.<\/p>\n
And yet, although most Poles remain broadly pro-EU, they also value their national independence and are likely to react instinctively against the idea of foreign interference in their domestic affairs. Moreover, as last month\u2019s events have shown, Law and Justice will fight its corner in the European arena, so a heavy-handed EU intervention could simply allow the party to present itself as the defender of Polish sovereignty against unwarranted meddling by arrogant Brussels officials.<\/p>\n
Moreover, the idea of Polish EU membership as representing a \u2018civilisational choice\u2019 has been undermined in recent years by an increasing sense of cultural distinctiveness that many Poles feel towards Western Europe. This has been particularly evident in the sphere of moral-cultural values where Polish attachment to traditional morality and national identity stands in stark contrast to the socially liberal, cosmopolitan consensus that predominates among West European political and cultural elites.<\/p>\n
This issue has surfaced recently in the contrasting reactions of Poles (and other Central Europeans) and West European political elites (although not necessarily their publics) to the European migration crisis. Poles are keen to avoid the kind of cultural and security problems that many of them feel West European countries have experienced through admitting large numbers of Muslim migrants who are seen as difficult to assimilate and embedding violent extremists within their communities.<\/p>\n
Indeed, one Law and Justice response to the Commission\u2019s \u2018rule of law\u2019 investigation was that the EU should be concerning itself more with addressing the fall-out from the migration crisis than the political situation in Poland. In other words, it not as obvious as it once was \u2013 and, arguably, becoming less so \u2013 that the \u2018civilizational choices\u2019 that are being made by political and cultural elites in other parts of the continent are the same ones that Poles want to make. The \u2018European card\u2019 is, therefore, one that the government\u2019s opponents need to play with great caution and could easily backfire on them.<\/p>\n
Aleks Szczerbiak is Professor of Politics and Contemporary European Studies, and\u00a0Director of Doctoral Studies for Law, Politics and Sociology at the University of Sussex. He was Co-Director of the Sussex European Institute (SEI) from 2006-14. This article first appeared on the the author’s own\u00a0personal blog<\/a>\u00a0and was later syndicated to the\u00a0LSE EUROPP Blog<\/a>\u00a0and the\u00a0New Europeans.<\/a><\/p>","protected":false},"excerpt":{"rendered":" An ongoing row with the Commission will be debilitating for the government which will have to spend valuable time and political capital defending its reputation in the European arena. However, the ruling party has shown that it can fight its corner and the Commission\u2019s intervention could prove a double-edged sword for Poland\u2019s opposition. LAW AND […]<\/p>","protected":false},"author":1,"featured_media":354,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[83],"tags":[63,111,112],"class_list":["post-352","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-democracy","tag-poland","tag-right-wing","tag-rule-of-law"],"acf":[],"yoast_head":"\n
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