Poland and the Challenge of Upholding the Rule of Law in the EU

A cranky member state calls the European Union’s enforcement power into question.


Hayden Toftner

Last month, Poland’s constitutional court handed down an unprecedented decision. In declaring that a number of European Union laws and policies were incompatible with Poland’s own constitution, the ruling directly contradicts the principle that European law takes precedence over domestic law. The judgment only adds fuel to Poland’s long-running dispute with the E.U. over its justice system, a dispute that has intensified in recent months after European courts imposed two separate fines on the country for its failure to comply with previous decisions. In light of the latest escalations, some observers fear that the Polish government’s disregard for E.U. principles and policies could mean an end to its E.U. membership. But how did Poland, a country whose citizens consistently show some of the highest levels of pro-European sentiment in the entire bloc, end up in a protracted fight with the E.U.?

In 2015, after nearly a decade out of power, the Law and Justice Party (PiS) won two crucial elections that gave it control of Poland’s executive and legislature. That spring, party member and former E.U. parliamentarian Andrzej Duda narrowly won the presidential election, and several months later a coalition led by PiS captured a slim majority in the Sejm, the more powerful of the two houses in Poland’s Parliament. With the two highest offices in the country in its hands, the new government set its sights on the judiciary, aiming to influence judicial rulings by appointing jurists more favorable to the party.

Rather than seizing control outright, the Sejm tampered with an existing independent council responsible for judicial appointments, replacing a majority of the group’s incumbent members with officials loyal to the party. The government then turned to more direct attacks on the judiciary itself by implementing a supermajority requirement for constitutional court decisions and creating a new “disciplinary chamber” to sanction judges who question the government’s legal reforms. It was that disciplinary chamber that landed Poland in hot water with the E.U. in October, as the European Court of Justice imposed a fine of €1,000,000 a day for flouting its orders to abolish the agency. The fine comes on top of a half-million euro daily penalty issued by the E.U. a month earlier over the government’s refusal to shut down an open-pit coal mine.

After failing to make the required payments in the mine case, it is unlikely that the Polish government will pay this even steeper fine for retaining the disciplinary chamber. In trying to implement its rulings, the E.U. is stymied by its reliance on consensus in decision making, a way to balance the often competing interests of the organization’s 27 member states. Any enforceable penalties against Poland would require the approval of every other country in the EU, including Hungary, whose own democracy-eroding right-wing government led by Prime Minister Viktor Orban has proven a powerful ally to Poland in its back-and-forth wrangling with the European Union.

However, the E.U. may have gained some surprising leverage through the COVID-19 pandemic. In July 2020 the bloc reached an agreement for a €750 billion recovery program that provides relief funds to member states hit by the resulting health and economic crises. But because the E.U. has still not agreed to release those funds, European Commission President Ursula von der Leyen offered Poland its share of the pot — a whopping €36 billion, roughly a third of the government’s planned expenditures for 2021 — on the condition that the country reform its legal system to restore judicial independence and comply with European court decisions. In a speech before the European Parliament, Polish Prime Minister Mateusz Morawiecki directly assailed the EU’s tactics, accusing Brussels of “blackmail” for its withholding of funds.

Following this latest escalation, multiple national and EU leaders expressed doubts about the future of the union and Poland’s membership in it, but a “Polexit” would be an option of last resort for the country. The Euroscepticism that pervaded Britain before the Brexit referendum is not present in Poland; a vast majority of Poles express a positive or neutral view of the European Union, and less than 10% hold a negative opinion. Furthermore, given that many regions of the country rely on the EU and its vast coffers to shore up their budgets — a fact the bloc has already exploited to force some municipalities to repeal anti-LGBT ordinances — the national government may be inclined to back down rather than endanger a major influx of government revenues. PiS, while socially conservative, has advanced generous social welfare policies targeted at their core groups of supporters, especially families and rural voters. Losing out on EU recovery funds could jeopardize these programs as well as pandemic recovery initiatives at a time when the opposition has shown gains in polling, making the government desperate to shore up support among their base.

Although fears of a Polexit are likely exaggerated, the E.U.’s six-year tussle with Poland over judicial independence testifies to the organization’s difficulty in upholding its principles evenly across the continent. Eurosceptic politicians frequently lambast the union’s supposed encroachment on individual countries’ domestic autonomy, but in the realm of justice, it seems national governments still have the final say. Even Germany, traditionally seen as the cornerstone of European unity, is facing a legal battle with the European Court of Justice after a 2020 ruling from its constitutional court prevented it from joining a union-wide bond program, a direct challenge to the supremacy of E.U. law.

.With so many threats to its authority, any progress the E.U. makes in bringing Poland to heel will be a victory for the strength of its institutions and a reassuring sign that the E.U. can bolster democracy in its own neighborhood, providing much-needed leverage for future intra-European conflicts. The bloc’s own website may proudly declare the rule of law to be “an integral part of our European way of life,” but as the case of Poland shows, bringing that aspiration to reality will remain one of the defining challenges for the EU in the coming years.⬩

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