The deterioration of Poland’s image will not be the only consequence of the decision to trigger Article 7 of the EU Treaty. The repercussions of playing this dangerous game with Brussels will most probably be far more important – not just at a symbolic level, but also in the context of our specific objectives that might not be realised if we do not mobilise other Member States’ support for them.
The Commission did not suspect the conflict would go that far
Let’s recall the facts first. The European Commission has on the 20th of December 2017 decided to proceed to the next stage of its procedure for monitoring the rule of law in the Member States. After two years of dialogue with the Polish government, the Commission received the confirmation that there’s a risk of breach of the rule of law and thus triggered the preventive mechanism described in Article 7.1 of the EU Treaty. The article reads that: “On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four-fifths of its members after obtaining the consent of the European Parliament (a two-thirds majority takes its decision in this issue) may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2 (which says that “the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”).”
It is worth noting that the Commission launched the preventive and not the sanctioning mechanism described in Article 7.2. The latter implies voting in the Council of the EU and not in the European Council, as well as the vote on whether there’s a breach of EU values rather than merely a “risk of breach.” Such a choice was made due to the lack of faith that the Member States would vote unanimously in favour of the procedure described in Article 7.2. The position of Viktor Orbán, who has from the start been declaring his support for the Polish government, is just enough to prevent this unanimity from occurring. If this scenario (Orbán’s veto) happened, it would be the European Commission’s defeat, or at least it would be regarded as such, especially because it was the Commission that launched the proceedings. The choice of the procedure from Article 7.1 is, therefore, the result of political realism which suggests leaders lower the stakes so that it is easier for them to win. Launching an investigation over a “risk of a breach” instead of an actual breach is thus not a sensu stricto first stage of the sanction procedure. Even if four-fifths of the Member States voted in favour of punishing Poland, nobody believes Hungary would change its mind and Poland would lose some of its rights, including the EU voting rights.
Why did the Commission launch a procedure that is so unlikely to result in Poland’s effective punishment? Was it because it wanted to give Poland about three months to realise the seriousness of its situation and withdraw the judiciary reform?
Such a hypothesis appears to be compliant with the spirit of launched preventive procedure, but it fails to explain consecutive statements the Commission and the Polish government have been releasing on the matter. Just as a reminder – the Commission has reservations about as many as 13 bills on the functioning of the judiciary in Poland. Within the timeframe of 2 years of its dialogue with Warsaw, it issued four Rule of Law Recommendations (on the 27th of July 2016, the 21st of December 2016, the 27th of July 2017 and the 20th of December 2017) ordering Poland to reverse pretty much all of the judiciary reforms it has introduced over the last 2 years. In its recommendations, the Commission calls for the Polish government to:
- change the Supreme Court bill in such a way that lowered retirement age doesn’t apply to the current judges, the president of Poland is no longer authorized to extend the judges’ terms of office and the idea of so-called “extraordinary appeal”, which makes it possible to re-examine cases that ended years ago, is dropped;
- change the bill on the National Council of the Judiciary (Polish: Krajowa Rada Sądownictwa, KRS) in such a way that the terms of member judges are not ended, as well as that the new system ensures that the members of the judicial community will select new member judges;
- restore the independence and legitimacy of The Constitutional Tribunal by ensuring that its President and Vice President are selected in accordance with law and that Tribunal’s judgments are published and fully executed;
- to change or withdraw the bill on ordinary courts system – precisely, the Commission wants the new regulations on the judges’ retirement age to be removed, as well as expects Poland to do away with the idea of granting the justice minister a power to appoint and dismiss court presidents or extend the judges’ terms;
- refrain from delivering statements and performing activities that undermine the legitimacy of Poland’s justice system;
The above list makes it very clear that there is essentially no room for discussion. To meet the Commission’s demands, the Polish government would have to reverse virtually all of its reforms in the field that Law and Justice and its leader Jarosław Kaczyński traditionally described as an extremely corrupt area that requires revolutionary changes.
Having this in mind, one must also consider two years of fruitless dialogue between Poland and the Commission, as well as a few other spats that Warsaw and Brussels had. Once all of these factors are taken into account, it seems naive to assume that the European Commission is using the preventive procedure to change the Polish government’s position.
Why did it launch this procedure then? There can only be one answer to that. The Commission must have believed that the mere threat of triggering Article 7 against Poland will turn out to be just enough to pressure Warsaw into withdrawing from the changes it’s been implementing. At the moment the Commission was launching the procedure, it did not anticipate it would go this far. And it is difficult to deny that the basis for such an assumption was pretty intense. The Commission has triggered Article 7 of the EU Treaty for the first time in history. It is thus not just the Polish government that has to deal with an entirely new political situation – the Commission was most probably also unsure of what to do in the face of the Polish government’s determination and the confrontation strategy it had adopted.
The preventive procedure is, therefore, an act of helplessness rather than a proof of strength. It appears as a hot potato that helpless Commission has passed on to the Bulgarian presidency, which is now required by procedures to take action.
Foundations of conflict between the European Commission and Law and Justice
The Polish government has adopted a defensive narrative that is based on questioning the Commission’s intentions and insisting that Poland is being mistreated due to ideological reasons. The representatives of the Commission, in turn, maintain that their institution is only guided by law and does not assess the actions of the EU Member States subjectively. Who’s right in this dispute?
Let’s start with the government’s narrative. It must be emphasized that the thesis about the EU treating the certain Member States differently than others is partially correct. The reason for such a state of affairs is, however, related to significant ideological tensions rather than to the EU’s aversion to Kaczyński’s party, as the Law and Justice (PiS) attempts to present it.
Firstly and most importantly, the fundamental ideological conflict between PiS and the Commission stems from their very different answers to the question of what the process of European integration should be like and what role the European institutions like the Commission should play in it. The fact that PiS supports the vision of Europe of Sovereign Nations, which implies the cooperation of fully independent states, means that it contests the legitimacy of deepening the European integration and consequently also a potentially more significant role of transnational institutions whose competencies are directly related to the extent of this integration. Unsurprisingly, Berlaymont is not too happy about it – both the Commission and the European Parliament have always been proponents of Europe moving in the opposite direction. Precisely, they have traditionally been in favour of deepening integration within the EU by transferring national competencies to the European level. Such transfers were usually connected with expanding the scope of the power of institutions responsible for creating and executing the EU law. It is therefore partially owing to the Commission’s particular interest that it treats those who question its political position unfavourably.
Another conflict between “The Good Change” and Brussels revolves around the actual difference about the legacy of liberal tradition. And it is not just the spat between PiS and the Commission, but rather one between PiS and the foundation of political tradition in Western Europe (and hence also in the EU). This tradition is based on the assumption that democracy can’t be a “tyranny of the majority”, and thus two meaningful restrictions limiting the political will of those who rule are necessary no matter what the election result is. These restrictions concern the rule of law understood as, for example, human rights and the independence of the judiciary. PiS, which destroyed institutions that are supposed to protect from the tyranny of parliamentary majority but still claims it has a democratic mandate to make such changes, is the embodiment of fears that had once pushed the decision-makers to introduce the above-mentioned restrictions.
Finally, the third area of this ideological conflict is the disagreement over the role of an individual and the community. PiS is anti-liberal also in the sense that it questions the role of an individual as a starting point for the general reflection on the social order. The fact that PiS puts a greater emphasis on the national community causes significant tensions. The Commission (again, probably along with the European Parliament) emphasises that it aims at protecting the rights of citizens of the Member States, not just the states. Such an approach stems from their intention to strengthen the transnational identity of citizens of the European Union – if they succeed, then these institutions are likely to grow even stronger following the replacement of their indirect legitimacy with a direct one. They then wouldn’t have to seek permission from the Member States to take actions. According to the European Commission, it is not the target for the European Union to remain a pragmatic value added, because the EU identity is not secondary to the national identity – it is parallel to it. It, therefore, must be highlighted that the European Commission is not the Law and Justice’s main antagonist in this case – it is rather an advocate of the liberal elites who promote the concept of transnational Europe. It should also be noted that this final area of conflict between Brussels and PiS is what brings the latter and Orbán together.
The European Commission is not the Constitutional Tribunal
Let’s go back to the Commission’s narrative now. Are its representatives, who claim that the institution is apolitical and only acts in accordance with law, right?
It has to be remembered that the EU law, like any other legal system, is a collection of abstract rules that may be prone to various interpretations. The higher the level of its generality, the wider the range of interpretation. The current infringement of EU values procedure is an excellent example of that.
The Treaty itself names the rule of law as one of the EU values, but it fails to specify where the boundary between the state’s freedom to reform its justice system and the independence of judiciary and judges lies. These boundaries are different in different Member States, so there is no universal answer.
The gap between an abstract rule and concrete application of the law is, therefore, a natural area of political bargaining between the European Commission and the Member States. It is also the source of not so much a different treatment of states from the start, but instead of different results of their negotiations with the Commission. There are many examples of situations when the Commission assessed individual Member States differently on the basis of the same legal provisions. It is, however, due to a combination of complicated reasons that are wholly different from the ones PiS often cites.
Firstly, the workforce of the European institutions is mostly composed of the representatives of the most influential countries, which means that these employees are both their instruments of influence and significant sources of information. Secondly, “old” EU members are experienced in the field of communication with the European Commission – they know exactly which words and arguments they should use to achieve their objectives. Thirdly, the Commission has a practice of taking into account the political context while holding negotiations with a particular Member State. It is thus safe to assume that the Polish government’s confrontational attitude (as evidenced by the multitude of conflict areas between Warsaw and Brussels), its publicly expressed tenacity and abundance of statements openly disregarding Commission and its competencies are all to blame for the weakening of Poland’s position in the EU.
All of the factors adduced above contributed to the situation where the Commission is indeed highly critical of PiS. For example, this is reflected in its recommendations for Warsaw to amend the National Council of the Judiciary (KRS) bill in such a way that the judicial community is again allowed to choose its members even though Article 187 of Poland’s constitution only specifies who can become a member of KRS and not who should be able to elect them. The fact that the Commission decided to play the role of the Constitutional Tribunal is yet another proof (after the statements made by the First Vice-President of the European Commission Frans Timmermans) of the absence of goodwill on the part of Berlaymont.
Article 7 is harming the EU
The public opinion is focused on the question of whether the Commission had grounds to trigger Article 7 against Poland. The issue that is, however, more worthy of consideration in the light of Warsaw’s conflict with Brussels concerns the EU’s right to interfere with its Member States’ internal affairs that do not directly affect other members. I put forward the thesis that, for the benefit of the EU itself, it should not possess such competencies.
On the intellectual level, one can debate the superiority of transnational Europe, which is represented by the quasi-federal EU. However, when it comes to day-to-day political practice, there’s a fundamental problem that makes such considerations completely irrelevant. The citizens of all EU Member States without exception answer the main identity question of “Who are you?” in line with their national or even regional, but never European, affiliation. This dominance of loyalty to the federal state makes them expect the EU to complement their countries, not replace them. Axiologically driven interference in a state’s internal affairs is viewed particularly negatively.
Paradoxically, the best example is the case that…inspired the inclusion of the rule of law procedure in the EU Treaties. The fact that the EU Member States had in 2000 created a sanitary cordon around Austria, which was forming its government at the time, forced Jörg Haider to resign from the position of the Freedom Party of Austria (FPÖ) leader and prevented him from joining the government. However, it has at the same time brought about an unprecedented increase in support for the party. A similar mechanism operates in contemporary Poland, but I could also name examples from many other EU Member States. Although the fiercest critics of Law and Justice (PiS) appear to be excited about the possible introduction of sanctions against Poland, a large number of voters, including those who do not support PiS, interprets the Commission’s actions as unjustified interference in Poland’s internal affairs. It is owing to the measures the Commission has taken so far that the public support for the Polish government’s position in the conflict remains high, thus encouraging PiS to adopt an even more confrontational attitude.
The proposal to deprive the EU of competence to judge whether a Member State respects the EU values is, therefore, a defence of not only the EU’s image but also of its future. It must be added that such a defence does not seem to entail significant costs.
Depriving the Commission of its role as ethics “teacher” will not result with any serious consequences for the respect of EU values in the Member States. Especially considering how ineffective lecturing them has turned out to be.
However, it has also to be emphasised that the proposal for the Commission to take a step back and give up its powers to assess whether Member States respect the EU values should not have any effect on the procedure that has already been launched and which is compliant with the EU law. Proposed treaty changes in the field should not relieve the ruling camp from its responsibility to end the procedure the Commission had started.
What allies does Poland have?
At the current stage of the procedure, it is difficult to forecast what the exact result of potential voting in the Council could be. Until now, it is only Hungary that declared unconditional support for Poland. And it has to be noted that its backing doesn’t stem from Budapest’s friendly relations with Warsaw, but rather from its particular interest – Hungary has for long been present on the European Union’s wall of shame, and it was also considered as a potential target of the Article 7 procedure. In contrast to the voting on extending Donald Tusk’s term as the President of the European Council, Orbán will, therefore, support Poland because Warsaw’s assertive attitude towards Brussels reinforces the legitimacy of Hungary’s EU policy (and vice versa). One thus cannot help but wonder whether PiS would be so willing to risk a confrontation with the Commission if Hungary did not previously declare support for its course of action.
Except for Hungary, no other country put forward its position on Poland in the spat, and it is for the most obvious reason that none has come up with one yet. The case has lately been transferred from the Commission to the Council, and it is only now when the Member States are starting to have more serious internal debates on the matter. The critical unknown is the position of Germany.
Until now, Angela Merkel has been critical of the state of the rule of law in Poland, but one must remember that mere words don’t always imply raising your hand during the voting. One should also be aware that it is still uncertain what Germany’s future political constellation will be like. It is unlikely that we’ll be informed of Germany’s position until its new government is formed. If SPD ends up becoming CDU’s coalition partner again, we can expect Germany to be tougher on Poland as social democrats will be increasing their pressure on Merkel. However, the creation of CDU-SPD government itself does not automatically mean that Germans will vote against Poland. It remains likely that Berlin will vote in support of Poland on the condition that Warsaw takes a “more constructive” approach to the issues that Germans care about most. It could be a silent consent to the construction of Nord Stream 2 pipeline or some other similar offer. One thing is sure: there are many sources of Polish-German conflict in the field of EU politics to choose from.
A temptation of closing this political deal is more significant than it might initially appear. Apart from the satisfaction from the defence of European values, there is nothing that Germans can gain from further pursuance of Article 7. They could only deepen the aversion of not PiS (they probably already got used to that) but of entire Polish society to Germans. And this is something they would prefer to avoid.
Another critical country is France. Regardless of what Merkel eventually decides to do, president Macron has quite a few legitimate reasons to remain in his role of “the bad cop”. Above all, the interests of Poland and France are even more divergent than those of Poland and Germany. Paris is the leading proponent of reinforcing the EU integration around the Eurozone; it also openly supports the transfer of EU funds from the east to the south. Moreover, Macron positions himself as the defender of liberal democracy in France and elsewhere. It is for that exact reason why he had criticised Poland way before he even became president. Taking up the baton from the Commission would therefore naturally complement the role that he’s for long wanted to play. Finally, fragile Polish-French relations, which have been further damaged by Poland’s decision to terminate the Caracal helicopters contract, also have a meaningful impact on the process.
Nevertheless, it needs to be emphasized that Paris is no different to Berlin in the sense that it acts merely in its national interest. It is predominantly motivated by its willingness to win large contracts for the purchase of military equipment. If the Polish government decided to buy French submarines Parly, nobody would remember about Caracal helicopters anymore. Such a purchase would likely be a prerequisite for France to give up its role as an anti-Polish instigator at the Council.
Germany and France’s lack of support for the idea of punishing Poland would essentially conclude the discussion on the matter. No other state is likely to step into the role of Poland’s main critic for the simple reason that none of them can benefit from taking such a position. It is questionable that the voting on Poland would even take place if Warsaw had the support of France and Germany.
A negative result of negotiations with France and Germany would not mean the case is lost either. Getting six countries (as we can already count Hungary in, that leaves us with another five states) to not vote against Poland would be just enough to counteract France and Germany’s influence and fulfilling such task is doable for the Polish diplomacy. As of now, it is hard to tell which countries would for sure vote against Poland. It is, however, certain that less significant EU Member States will be somewhat hesitant to back the continuation of the Article 7 mechanism. Some of them might – correctly – assume that establishing such precedence will in the long-term prove detrimental to them. The Article 7 procedure could eventually become a tool for disciplining and punishing smaller countries. Therefore, if the pressure exerted by France and Germany is not too strong, the matters are likely to go down the way the Polish government wants.
What are the possible consequences of the launch of Article 7?
As we already mentioned at the beginning of this analysis, the lack of unanimity in the European Council on the violation of EU values is pretty much guaranteed. This does not, however, mean that Poland will not bear any consequences of the launch of Article 7.
What is really at stake is to make the voting on the risk of breach of EU values even happen. If it takes place and the majority of fourth-fifths votes in favour of punishing Poland, Warsaw will bear severe, yet not immeasurable, costs. Outvoting Poland would be just another (after failing to oust Donald Tusk as the President of European Council by 27-1) proof of our weak position within the EU. If such a vast majority of the EU Member States voted against Poland, thus expressing their negative opinion of its government, it would become more difficult for Poland to build alliances on many vital issues. Moreover, such a result of voting would reinforce the belief that Warsaw is isolated and unable to find allies. And as much as the label of chief troublemaker may not concern Poland, it will indeed matter to other countries who will have no intention of cooperating with an “anti-European” government. If they, however, agree to collaborate, they might expect a “higher rate of return” that will compensate for the discomfort of cooperating with a state featured on the EU’s wall of shame.
We could observe how this mechanism worked when Macron took a trip to Central Europe where he eventually received the support of Czechs and Slovaks for the EU’s Posted Workers Directive. The French president fulfilled his mission by using the argument that can be best summarised by the question: “Are you guys in the hardcore of the Union or will you stick to supporting its pariah?”
Let’s assume that things turn out badly, the majority of fourth-fifths in the Council is achieved, and Poland’s position within the EU is further weakened. What kind of measurable negative consequences for Warsaw does that all imply? The below list enumerates the most critical issues. At this point, it has to be noted that their positive resolution depends on the support of not only a specific group of the EU Member States but also of the EU institutions, most notably the European Commission and the European Parliament. The latter two seem to be most sensitive about respecting the EU values.
- The discussion about deepening the EU integration
In his most recent annual State of the Union speech, the Commission President Jean-Claude Juncker came up with the proposal of “ever closer union”. He has, among others, adduced the idea of strengthening pan-European movements at the expense of national parties, as well as suggested that the EU should extend the range of fields (e.g. to include foreign policy) in which decisions are made by the qualified majority (Warsaw remains a vocal supporter of the so-called “intergovernmental democracy”). Soon, we should anticipate more discussions on this matter.
- The discussion about strategic reforms of the Eurozone
In December, the European Commission has presented its plan to strengthen the Eurozone. Although it encompasses more elements of evolution rather than revolution, it is impossible to rule out that its final version will be far more disadvantageous to Poland. It is likely that the Common Agricultural Policy (CAP) and structural funds will be reduced to the benefit of expenses associated with the Eurozone’s macroeconomic stability.
- The long-term EU budget 2021-2027
In the nearest future, we’ll be witnessing the greatest possible clash of interests between the EU Member States: the discussion about the EU’s long-term budget. Unluckily, our starting position in this battle is very weak, and there are many signs that our share in this budget will be heavily impacted by the decision to trigger the rule of law procedure. Several factors can explain this anticipated loss. Firstly, the stakes are incredibly high in this game, which means that the Member States will be taking all sorts of measures to maximise their chances for success. Secondly, the divergence of interests between players in this game is stronger than in any other field.
In contrast to many other issues, which can be resolved with win-win compromises, the budget question is pure of one-dimensional nature. It’s simply impossible to assign the same money to a few distinct entities, and the pool of funds to share will most probably be significantly smaller than a few years ago. Thirdly, punishing Poland with sanctions is not a reward for anyone, but the option of limiting EU funds for Warsaw and distributing them around the several Member States offers the best of both worlds. Finally, and fourthly, the EU discourse portrays cohesion funds as “an award” for “good behaviour”, understood as the EU solidarity. Considering not just the launch of Article 7 but also Warsaw’s overall EU policy, it should not be difficult to claim that Poland doesn’t show solidarity with the other Member States and therefore should not benefit from their solidarity as much as it could until now.
- The common market
Apart from systemic issues, the EU members have also for a while been debating about the future of the common market. Although the Commission and Parliament have traditionally been supportive of removing barriers to the movement of people, goods, services and capital, this position appears to be shifting as the Juncker administration is allowing more protectionist measures that favour the most influential countries. These try to protect the competitiveness of their economies by imposing regulation. The Posted Workers Directive, which favours economies that attempt to defend from Central European competition, is not the end but rather the beginning of a discussion on the matter. Poland’s strong position is, therefore, necessary to defend free movement of services, block tax harmonisation or help reshape trade arrangements with 3rd countries (the U.S., China) in such a way that they become more favourable to EU economy.
- Sanctions against Russia
One has to remember that the sanctions, which have been in place since Russia’s military intervention in Crimea and Donbass, are not automatically renewed. Each extension is the result of a decision made by the European Council, which means that the Polish diplomacy has to put a lot of effort into persuading the countries that regularly demand lifting sanctions due to lack of their effectiveness to change their minds. It is worth emphasising that the circle of most vocal supporters of lifting sanctions include the countries of our region – the Czech Republic and Hungary.
- Nord Stream 2
Due to the EU’s increased dependency on Russian natural resources, Poland is urging the Commission and the EU Member States to block this investment or at least adapt it to the European legal requirements, which would also significantly impact the way in which Russia will be able to use the pipeline in the future. At the moment, we’re in the middle of a heated discussion on some of the legal issues that are not only dividing the Member States, but also the Commission. Weakened position of Poland is equivalent to the weakened position of opponents of the construction of a new pipeline on the Baltic seabed.
- The energy industry
Nord Stream 2 alone does not exhaust the topic of our interests in the area of the energy industry. The Polish government is currently conducting intensive negotiations on issues that are key to our economy, and the result of these negotiations will largely depend upon the Commission’s support. An example of such issue is particularly the case of public aid for the mining sector. It is up to the Commission to greenlight the governmental support for The Polish Mining Group (Polska Grupa Górnicza, PGG).
At the moment, we’re also in the final stage of discussions on regulations that will form the so-called ‘Winter Package’, an integral element of the EU energy policy. The document will encompass such topics as new rules of CO2 emissions trading or future energy market.
It will be even harder in front of the EU Court of Justice
Apart from the issues mentioned above, it is also worth noting that Poland is currently the defendant in a number of proceedings in front of the EU Court of Justice, which for many reasons (including the professional solidarity) cannot be expected to show leniency. It should also not be forgotten that the EU Court of Justice proceedings over the breach of EU law are resolved by judges and not the Member States or even the Commission. The risk of failure is, therefore, significant – especially taking into account the recent ruling on Białowieża forest case, which obliged Poland to pay €100,000 for each additional day of tree felling.
It should also be reminded that triggering Article 7 is not the only measure the Commission has taken concerning the violation of the rule of law by Poland. The institution has also initiated proceedings over the breach of EU law as a result of the adoption of the common courts’ system bill regulating the retirement age of judges in Polish courts. The breach of law consists of discrimination on the grounds of sex – the bill sets different retirement age for women (60 tears) and men (65 years), which constitutes a breach of Article 157 of the Treaty on the Functioning of the European Union (TFEU), as well as of Directive 2006/54/EC on equal treatment of men and women in the matters of employment and occupation. The unfavourable verdict is thus highly likely, but the government has a greater room for manoeuvre here – equaling male and female retirement age does not change the essence of judiciary reform, yet it can help Poland avoid financial penalties.
All of the above issues prove that it is not just Poland’s image, but also the positive resolution of a number of crucial issues that are currently high in the agenda of the European Council and impact bilateral relations between Poland and the EU institutions, that are at stake in the game that PiS is playing against the Commission. Let’s all hope that the realisation of how dangerous this game is will influence the actions of our new government. As of now, it should focus primarily on strengthening relations with the distinct Member States to prevent them from voting against Poland. Hopefully, it’s not “too little, too late” yet.
Translation from Polish: Aleksandra Wróbel
This publication has been cofinanced by the Ministry of Foreign Affairs of the Republic of Poland within “Cooperation in Public Diplomacy 2018” programme.
This publication reflects the views of the author and not the official stance of the Ministry of Foreign Affairs of the Republic of Poland.