Poland's Right-Wing Ruling Party Is Baiting the European Union

But the EU should let the Polish people tame it

The European Union is in a standoff with Poland. The country’s Constitutional Tribunal, a court whose purpose is to ensure that the country’s laws are in compliance with its constitution, just gave a green light to the ruling Law and Justice Party (PiS) to disregard a top European court’s judgment asking Poland to rollback its recent reforms undermining the independence of the Polish judiciary. The ruling is calculated to portray the Tribunal as David bravely sticking up for its country’s national sovereignty against an intrusive Goliath consisting of a supranational panel of unelected judges sitting on a different soil.

However, the EU should be careful in taking political measures against the PiS government, no matter how tempting or justified that might be. There is a good chance that the Polish people will do so themselves in the 2023 parliamentary elections and save the EU a lot of hassle and possibly a political crisis.

Since arriving in power in fall 2015, PiS, a right-wing nativist party eager to emulate the de-democratization witnessed in Hungary since 2010, has introduced sweeping changes to Poland’s courts, including to the Constitutional Tribunal itself. It annulled previous judicial appointments to the Tribunal that were less likely to go along with its political agenda and changed the rules of its operation. At that time, the Tribunal, which hadn’t yet been packed by regime loyalists, declared all these moves unconstitutional but the PiS ignored it. The government lowered judges’ retirement age and fired a big segment of the judiciary, including 27 out of 74 judges of Poland’s Supreme Court. It also gave the justice minister concentrated powers over judicial appointments, dismissals, and disciplining judges, eroding the separation between the executive and the judiciary.

Not surprisingly, these actions generated major political concern in the EU, which is, after all, a consortium of liberal democratic states, not autocracies. The European Commission tried to sanction Poland in 2019 by invoking the so-called Article 7 procedure over some of its initial moves compromising judicial independence. Under this article, a member state’s voting rights can be suspended when the state fails to live up to the EU’s basic commitment to democracy and rule of law. However, that effort failed because all EU members have to vote unanimously to sanction the offending country. That was a tall order given that a number of member states with weakening rule of law, including Hungary and possibly Bulgaria, have been on the Commission’s watch list and thus eager to take Poland’s side.

As a result, the Commission brought the case that led to the current standoff with the Tribunal before the EU’s top court: the Court of Justice of the European Union (CJEU). The case involved the broad, recently enacted powers to discipline judges that the government deems are engaging in political activities—read ruling against PiS in the opposition’s favor. Taking the legal route made sense. After all, following a 2018 CJEU ruling against PiS’ efforts to roll back the retirement age of Supreme Court justices, the Polish government backed down and allowed the judges to return.

But instead of complying with CJEU’s ruling this time, the Polish government challenged the ruling in its own Constitutional Tribunal, which it had by this point packed with loyalists serving its aims—not safeguarding the integrity of Poland’s constitutional order. For example, the Tribunal’s judge-rapporteur (the person who watches the case and offers written reports to other judges summarizing facts, evidence, and questions of law raised in a dispute), Bartłomiej Sochański, is a former PiS member. He is also the party’s 2018 failed candidate for the mayor of Szczecin, one of Poland’s largest cities and a key seaport. The president of the Tribunal, meanwhile, is Julia Przyłębska, a PiS apparatchik whose election to the presidency of the Tribunal remains contested. Her husband is the PiS-appointed ambassador to Germany.

This PiS-packed Tribunal delivered a truly radical judgment against the European court’s ruling that has shocked everyone. It didn’t merely offer, as expected, a different interpretation of the new regime to discipline judges. Rather, it concluded that some of the most basic tenets of the Treaty on European Union, the EU’s quasi-constitution, were inconsistent with Poland’s own constitution. Specifically, it declared that the EU and the CJEU had no grounds to rule on Poland’s judiciary, how it functions, or whether it is compliant with EU law. In other words, it told Brussels (and Luxembourg) to drop dead.

Disagreements between European institutions, including the CJEU, and national apex courts are not new in the EU. Consider the European Central Bank’s bond purchases program officially started during the Eurozone’s debt crisis in 2015. Some Eurozone governments questioned these purchases as violating the EU’s prohibitions against monetizing debt and extending bailouts to members. Germany’s Federal Constitutional Court (BVerfG) in 2020 even controversially struck down CJEU judgments upholding the legality of the purchases, declaring the European bank’s action essentially unlawful.

However, the dispute with Poland is different. For one, the German court is fiercely independent and is quite capable of ruling against its own government if that were warranted under German law. More to the point, unlike conflicting interpretations of German and EU law on central bank’s bond purchases, the dispute over Poland’s disciplinary regime does not fit the description of a good-faith disagreement. Rather, it involves a national court making an outlandish, maximalist claim to invalidate a basic tenet of EU law.

But by doing so, the Tribunal has exposed the EU’s Achilles heel.

The EU is not a neatly organized, top-down structure that can impose its will on national governments. Neither is it a US-style federation with clear separation between powers of states and of the federal government. The EU involves a convoluted legal order between 27 countries with often times different legal, constitutional, and political systems—and many governing powers “shared” between national capitals and Brussels. Although CJEU’s own jurisprudence claims primacy over national law (an assessment not necessarily shared by national judiciaries), the EU has few to no coercive powers. Therefore almost by necessity it contains a significant degree of legal and constitutional pluralism. The system basically holds together through restraint and mutual accommodation between national and European sources of law and policymaking.

Poland is essentially provoking European institutions into a game of chicken. If the EU doesn’t act, European treaties will be shown as hollow and toothless. If it does, Poland may be forced to leave the Union and the delicate arrangement that holds the EU together will be shattered.

The EU, this alleged Goliath, is caught between a rock and a hard place. What should it do?

Violations of EU law rightly prompt fines and the EU should impose them. The EU also has tools to defend its financial interests in countries where EU funds are being channeled into schemes of political patronage and corruption benefiting incumbents. It should use those tools more vigorously—but also in a transparent and dispassionate way.

But it should not rush to openly confront Poland for thumbing its nose at its court. Waiting and watching might be a more advisable stance than escalating the rhetoric against Warsaw or pressing the PiS government to somehow overturn the Tribunal’s verdict.

The fact is that PiS is not playing with a strong political hand. It is facing parliamentary elections when support for anti-establishment populism in the region is waning —particularly since the populists have had their shot at governing. In the Czech Republic, Andrej Babiš’ ANO movement was just voted out of power last week. Even Hungary’s Viktor Orbán faces a formidable challenge in the election next year as the opposition has been able to join forces and agree on a common candidate list. The likes of PiS are trying to manufacture conflicts with European institutions and drag the EU to the frontlines of domestic political fights, particularly on cultural subjects that arouse strong emotions.

But that is a risky strategy for PiS. The EU’s seeming overreach might be red meat for some segments of its base, but 80 percent of the Polish public supports its EU membership, providing a strong glue for Poland’s opposition. Polish cities saw mass protests against the Tribunal’s ruling because it could place Poland’s membership in jeopardy.

The Tribunal ruling vastly overplayed its hand because it did not simply contradict a CJEU decision or a particular EU policy. It is effectively calling for a revision of the EU treaties themselves—something that has zero chance of happening.

Unsatisfying as it may sound, the EU would do well to find a face-saving way for Poland to backtrack without further escalating the conflict. Regrettable as PiS’ anti-democratic policies are, the Polish people remain the most reliable bulwark against a further entrenchment of the incumbent party. To seek a supranational judicial fix for a domestic political fight would be to deny agency to the Polish electorate. EU should avoid that at all costs right now, not just for the sake of its own integrity but also to really cure the populist threat. Political problems are best addressed by political, not legal, means.

Dalibor Rohac is a senior fellow at the American Enterprise Institute in Washington DC. Twitter: @DaliborRohac.

Photo credit: Marek Ślusarczyk. Wikipedia.

A guest post by
Dalibor Rohac is a senior fellow at the American Enterprise Institute, a contributing editor at the American Purpose, and a research associate at the Wilfried Martens Centre for European Studies. Twitter: @DaliborRohac.