The problem of Warsaw’s illiberalism is not just legal but deeply political.
A sigh of relief was heard across Europe shortly before Christmas when the European Commission published its new rule-of-law recommendations for the Polish government, urging Warsaw to respect the judgments of the Constitutional Court, which it has so far refused to implement.
To be sure, nobody expects Brussels’ advice to be implemented. Poland’s de-facto leader Jarosław Kaczyński recently denounced the EU’s rule-of-law mechanism as a “comedy,” adding that he’d be ready to accept a slowdown of the economy in order to achieve his political goals.
The relief in European capitals was not due to false illusions about a potential U-turn in Poland’s illiberal course. Rather, the new recommendations prolong a comfortable outsourcing of the “Polish problem” to the Commission, allowing national leaders to avoid taking a position. Even Angela Merkel — the newly proclaimed leader of the free world — has stayed silent on Poland’s constitutional crisis. But the Commission’s recommendations can only delay for so long the moment when national governments will have to take responsibility.
Once the two-month period for the Polish government to follow its recommendations expires late February, Brussels will have little choice but to ask the European Council to vote on triggering Article 7 of the EU Treaty. It states that a violation of the EU’s basic principles can be met with sanctions. Hungary and the U.K. — Poland’s closest allies — would most probably block this decision, but for the Commission’s image, it will be better to fail in the European Council than to abstain from the action altogether. In any case, the time of outsourcing will be over. Politicians will have to put their cards on the table.
This politicization will likely broaden the discussion of the Polish case beyond the narrow confines of the government’s conflict within the country’s constitutional court. After a year in which the Law and Justice party has been in government, it is evident that the problem of rising illiberalism is not just legal but deeply political.
A number of reforms undertaken in the last 12 months — the government takeover of public media entities, dismissals of civil servants, the introduction of a new surveillance law, and the strengthening of the general prosecutor’s powers at the expense of local authorities — have hollowed out Poland’s liberal-democratic foundations, even if some steps are not outrightly unconstitutional. In an interview with the pro-government weekly wSieci late December, Kaczyński accused the opposition of attempting a “coup” — perhaps the harbinger of a further hardening of the political course.
The broader question for Merkel and her peers will be: What (if any) are the political red lines when democratically elected governments undermine the political and legal foundations of European democracy?
This issue looms large in 2017 — and not just because of Poland. After Brexit and Trump — and in light of the upcoming electoral battles in a number of EU member countries — the stakes are higher than ever.
The EU’s most pressing debate is no longer how to deal with individual miscreants — such as Hungarian Prime Minister Viktor Orbán — but how to defend a vision of the EU against a rising pan-European counter-revolution which threatens the principles of rule of law, tolerance and minority rights. This is not just a task for the technocrats and EU institutions but for political leaders who still believe in the European project.
This is not to say that sanctions or political isolation are the only or best instruments to deal with countries that move away from the liberal-democratic consensus. Isolation proved to be counter-productive after far-right success in Austria in 1999, and sanctions (if imposed) may indeed only strengthen Law and Justice’s narrative that Poland is a besieged fortress.
EU member countries and institutions alike should make clear that while they reject the illiberal course of the Polish government, they are still ready to engage with Polish society
Here’s what must happen. First, the leaders of EU countries should not isolate Poland. Instead, they need to send Poland a clear message, condemning the government’s violation of Europe’s key values and stressing the fundamentals of liberal-democracy and the rule of law.
Such declarations may not have any legal force, but they should not be dismissed simply as rhetoric. Symbolism, these days, is important: It raises public awareness and helps develop a common language across borders for supporters of the EU as a value-based entity. In the long term, such language could be an important investment — and perhaps a building block of a true European public sphere, the missing cornerstone of a EU democracy.
Second, EU member countries and institutions alike should make clear that while they reject the illiberal course of the Polish government, they are still ready to engage with Polish society. After all, the people are the only stakeholders who can determine the country’s future. The Commission should, for example, more decisively execute EU competition law (unequal treatment of some Polish companies is a significant source of rising frustration in parts of the middle classes) and make sure that access to the European Solidarity Corps is possible even in the distant corners of the country.
The EU’s Polish dilemma mirrors the big challenges the bloc will face in 2017 and beyond. Europe’s leaders have a choice about how they will react, but they must realize that whatever they decide to do — or not do — will have far-reaching consequences. The battle for the EU’s future will not stop at Poland’s borders.
This op-ed was first published in Politico on 3 January 2017.