Europe’s decision on whether or not to declare Poland in breach with European rule of law standards comes down to a choice between principles and pragmatism.
The triggering of Article 7.1 by European Commission in December 2017 has forced Poland to seek a new relationship with Europe. Jaroslaw Kaczynski, the leader of Law and Justice (PiS), must have concluded that something needed to be done in order to prevent Poland from paying an excessive political, economic or reputational price in Europe for its controversial judicial reforms at home.
His response was to appoint a dynamic new Prime Minister, Mateusz Morawiecki, initiate a government reshuffle, and embark on a diplomatic charm offensive.
Jacek Czaputowicz (a respected academic and a political outsider) was appointed the country’s new foreign minister. Together with Konrad Szymanski, Minister of Europe and Deputy MFA, as well as the PM himself, he has devoted much energy to securing sufficient support ahead of a possible vote in the EU Council on Poland’s commitment to the rule of law.
If the vote goes ahead, and a qualified majority were to declare Poland in breach of EU rule of law standards, it would seriously harm Poland’s reputation. In the worst case, it could even lead to some of Poland’s voting rights within the Council suspended or EU funds slashed, although that would require an unlikely unanimity.
Czaputowicz discussed Poland’s view on the EC’s Article 7.1 procedure with his Bulgarian counterpart, Ekaterina Zakharieva, during his first foreign visit to Sophia. He did likewise with Sigmar Gabriel in Berlin and Frans Timmermans in Brussels. The latter meeting – organised on Czaputowicz’s initiative – was particularly noteworthy given that Timmermans, the Deputy Head of the European Commission, is the person behind the rule of law procedure against Warsaw and for that reason had been a target of heavy criticism from the previous Polish government.
PM Morawiecki has also been very active on the external front, meeting with Jean-Claude Juncker and Frans Timmermans in early January, and recently representing Warsaw at the World Economic Forum in Davos with a bright, optimistic vision of Poland’s future.
This is not exclusively about the vote at the EU Council. More broadly, the Polish government wants to shed its image as the EU’s ‘ugly duckling’, and to strengthen its position ahead of EU budget negotiations to be launched in spring this year.
Warsaw is currently benefitting from a short grace period: the EC gave it a further three months to implement its rule of law recommendations, which include the restoration of judicial independence and greater legitimacy of the Constitutional Tribunal. But Warsaw knows that it is unlikely to receive another pardon without a serious change in its relations with other member states.
The position of many European capitals will depend on whether Warsaw implements the EC’s recommendations. Yet, for the moment, there is no indication that it will do so.
Morawiecki’s government tries to present itself as a more civilised version of the Law and Justice (PiS) party, following a well-justified assumption that appearances matter in European affairs.
His government may also demonstrate a greater willingness to cooperate on some issues. For example, the new minister of environment announced that he would respect the ruling of the EU Court of Justice demanding Warsaw stop the illegal logging of trees in the Bialowieza natural park, carried out by his predecessor.
But if we listen carefully to what Czaputowicz, Szymanski and Morawiecki are actually saying, they mostly aim at better explaining to their European counterparts the Polish judicial reforms and the government’s refusal to accept the EU’s refugee quota. They see the whole Article 7.1 procedure against Poland as based on ‘misunderstanding’ on the part of the EU. ‘It’s all a matter of perspective’, Morawiecki repeated several times during his interview for CNN at Davos.
To be fair, Warsaw is also reframing its case. In one of his first public appearances as foreign minister, Czaputowicz suggested that the EU Court of Justice should be involved in the Article 7.1 procedure against Poland, presenting it as the only institution capable of dealing with such cases in an impartial way.
The EC has, in fact, referred Poland to the Court of Justice on this matter. But it may take several months for the Court to announce its ruling. Czaputowicz’s idea therefore looks like playing for time.
Warsaw may be hoping that the next European Commission, to be constituted after the elections to the European Parliament in May 2019, will be more lenient with Poland’s rule of law misdemeanours. Equally, other European governments may simply get used to their partner in Warsaw, just as they did with Hungary’s Victor Orban.
A cooperative Poland is still in high demand, given the many issues on the EU’s current agenda, such as migration policy, defence and security cooperation, Single Market reforms, or Brexit.
In a way, European partners have learned already what they can expect form Warsaw, and they may even start considering it as a predictable partner. That may explain the first signs of a new normalisation.
The Weimar Triangle (composed of Germany, France and Poland) is expected to come back to life on the occasion of the upcoming Munich Security Conference in mid-February. Morawiecki’s visit in Davos was a PR success. And last Friday, Rex Tillerson flew to Warsaw from Davos, meeting Morawiecki, Czaputowicz, president Andrzej Duda, and even Kaczynski (who is formally not a member of government), thus further strengthening Poland’s standing on the European map.
Prepare for a longue durée
Another factor that European governments may well take into account is the newly-consolidated position of the Polish government domestically. With the government reshuffle, Warsaw has managed to improve its external image and reduce internal criticisms, without losing the support of its base.
As the country’s democratic opposition is in disarray, European leaders may be coming to terms with the fact that they will have to live with the PiS government longer than they expected back in 2015.
The two liberal parties present in the parliament – Civic Platform (PO) and Nowoczesna (Modern) – disappointed many supporters in early January, with their positions on proposals for a new abortion law. Several of their MPs did not appear to vote on a citizen project which aimed at a liberalisation of the current strict abortion law; a couple of them even voted against it.
Meanwhile, a quarter of PiS MPs voted for the project to be further discussed at a dedicated parliamentary committee. In the end, the citizen project lost by a handful of votes and the committee will focus only on a second project, which seeks to restrict Poland’s abortion law even further. The ensuing street protests reflected popular anger at the government and opposition alike.
This all leaves PiS with record support of over 40%, a stunningly three times more than the nearest challenger, Civic Platform, which governed from 2007-2015. Thus, instead of waiting until 2019, Kaczynski may even opt for early elections with the aim of obtaining a constitutional majority.
He took a similar gamble in 2007, however, and lost, enabling Donald Tusk’s Civic Platform to take power for the next 8 years. He may be more careful this time, unless he concludes that the odds are sufficiently improved.
If Kaczynski decides to wait, it may put Europe even more in the centre of Poland’s internal politics, as the elections to the European Parliament will serve as a prelude to the country’s parliamentary elections in autumn 2019.
In a way, keeping the conflict with Brussels at a low heat might serve PiS’s internal politics. Preparing for the electoral marathon of the next two years, the government may continue to present this issue as a one of external interference in Poland’s legal order, distracting the attention of Polish voters from the fact that their judicial reforms are also inconsistent with the country’s own constitution.
The ironic choice
For some countries (such as France), Poland’s rule of law problem is a question of principles. These countries will likely push for a vote at the EU Council whatever it takes, though they may accept a mere verbal punishment.
Others (such as Austria) will be happy to support this approach, on the grounds that the Polish case is a useful scapegoat, distracting Europe’s attention from their own wrongdoings.
On the face of it, the government in Warsaw faces a relatively easy task of convincing six Member States (the number needed to prevent a qualified majority) to oppose the proposal to censure Poland, or avoid holding such a vote altogether. Still, it is unclear which countries would make up that bloc, with the obvious exception of Hungary.
The likely targets of Warsaw’s outreach are the Czech Republic, the UK and the Baltics, possibly also Romania or Bulgaria. But it is far from certain that they could be convinced to oppose or abstain on this question.
Much will depend on whether Berlin endorses Macron’s principled approach (as the draft GroKo agreement may indicate), or if it continues to act as the EU’s peacemaker state, prioritising European unity over principles. Germany would feel very uncomfortable voting against Poland. But Berlin also feels a strong obligation to support the European Commission.
A pragmatic German approach would embolden other Central European countries to show solidarity with Poland. It would effectively allow the issue to blow over, and it would strengthen PiS domestically and remove any incentive for Warsaw to halt its illiberal course.
More broadly, it would provide clear evidence to all those who denounce the EU as a toothless organisation and a hypocritical community of interests rather than values.
The European Council on Foreign Relations does not take collective positions. This commentary, like all publications of the European Council on Foreign Relations, represents only the views of its authors.