Poland’s black Wednesday: Crossing the Rubicon

Poland’s political year is ending with a double whammy. On Wednesday the EU Commission triggered article 7.1 of the EU treaty and asked the Council to determine „that there is a clear risk of a serious breach“ of European values by Poland. Just a few hours later Polish President Andrzej Duda defied Brussels, declaring that he would sign off the reform of the judicial system which is seen as unconstitutional and was one of the key reasons for the Commission’s move.

The announcement made by Duda was an obvious manifestation of Poland’s determination to stand up to external pressure, and of its disregard for the treaty regulation applied by the Commission. Leading politicians of the ruling party PiS criticised that the Commission was overstepping its mandate, that the procedure is illegal, and that the accusations against Poland are politically motivated.

Warsaw, the argument goes, is being punished for defending its sovereignty by refusing to accept refugees. The decision to sign off the controversial bills will most probably close the door for any compromise on this matter. That option was still left open by the Commission which effectively gave Poland another three months to find a solution.  But now it seems there will be little left to discuss when Prime Minister Mateusz Morawiecki and Jean-Claude Juncker meet in January 2018.

Pundits state that Article 7 will have a devastating effect on Poland’s position in the EU, but the truth is that this has been weakening for some time. The Commission’s decision underlines rather than provokes this process.  Indeed, the impact of what happened on December 20 will be most important in domestic policy.

The completion of the judicial reform is a farewell to the system of the separation of powers as practiced by most modern liberal democracies. Pushed through without respect for the rule of law (the shortening of Supreme Court judges‘ terms violates the constitution), it gives the executive power to appoint and control judges.

President Duda, who vetoed the judiciary reform last summer, is now back on the side of his party in signing off the reform. And the new Prime Minister Morawiecki may be an economic moderniser, but he is an illiberal hardliner when it comes to public institutions.

By taking over the constitutional court, public media, assuming control of the judiciary and, probably, soon also the National Electoral Commisson  PiS has removed all „safety valves“ from the political system. It is unclear where this centralization of power will lead. It is still premature to talk about an authoritarian system. But the grip of PiS on the country is tightening and the determination to continue is clear.

The future shape of Poland’s European policy will be determined by how Poland’s politicians and public react to the new reality after Article 7 has been triggered. State propaganda portrays the decision taken by the Commission as a hostile act . It will fuel the narrative about Poland as a besieged fortress and about the West betraying Poland again. Talk about „us“ and „them“ is commonplace.

The decision taken in Brussels places Europe at the centre of Poland‘s strongly polarised politics: this brings opportunities as well as risks. Anti-Europeanism is not that popular with the public, and the opposition may mobilise those voters who are afraid of the negative implications of the current drift towards a psychological ‚Polexit‘. But sovereigntist language is a powerful tool in the era of uncertainties and strong identities. Especially as the appeal of the European Union is not as strong as it once was.

The perception that the EU is going in a direction which is at odds with Polish interests is gaining ground for reasons beyond its „inteference“ in the judicial reforms. Planned Eurozone reforms will further marginalise the those, like Poland, outside the single currency core, and Brexit will additionally weaken its position. PESCO is seen in Poland as an instrument to advance French interests and potentially even undermining NATO’s collective defence. The migration issue is ostracising Warsaw.

As for the single market, the rising protectionism in Western Europe (framed as a fight against social dumping) threatens to reduce Poland‘s economic convergance with the West. Not to mention the next EU budget: it will be smaller, more difficult to tap, and less focused on cohesion. These are poor conditions for making a strong case for the EU.

With the Rubicon of Article 7 now crossed, and the illiberal transformation largely complete, this will be a gloomy Christmas for all those who care about liberal and European values in Poland. But 2018 still provides a chance – perhaps the last chance – to halt Poland’s course away from the EU and the community of Western values.