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On October 27th, The European Court of Justice imposed the largest sanctions on a member state in history. It has ordered Poland to pay a fine of 1 million Euros per day until the government recognises the supremacy of European law over Polish one as required by the EU. Could this have been avoided? Poland and Hungary had been acting out for the longest time — abusing human rights, restraining freedom of press, and only last year, vetoing the European budget — did it have to come to the Polish Court ruling that European law is unconstitutional to see a tangible reaction from Brussels?
The situation resembles something out of Kafka’s The Trial. Earlier this October, the Polish Constitutional Tribunal ruled that European Union laws are unconstitutional. The result is almost absurd. According to the Treaty of the European Union, signed by Poland upon entry in 2004, the EU legislation is superior to local ones. Poland has now overturned the treaty, asserting it is a breach of legal sovereignty and that such transfer of judiciary responsibilities was never agreed upon. Of course, it can overturn any law seemingly violating Poland’s sovereignty, however, European law remains supreme in the eyes of the international community. All this is just another chapter of the fight over the independence of courts that has been going on in Poland since 2017. Not only can it make you feel like you are Joseph K, meandering the confusing corridors of the judicial system, it also poses important questions about European Union policy towards its member states.
When the European Economic Community (ECC) was first established in 1957 it was a purely economic union. Now, it has evolved into a community of shared principles and political rules. The cases such as the one of Poland, though, shed new light on the intertwining of finance and moral standards. The European block thinks of itself as being a guardian of human rights. When it was debated whether Turkey should be allowed into the European Union, arguments against it were that it is not “European” enough as it does not uphold the liberal democracy and honour civil rights (compromised media freedom and intolerance of the Kurdish minority being the most often quoted examples). Yet, when the Polish government introduced LGBT-free zones in hundreds of municipalities across the country there was little reaction in Brussels. The concept of ‘European values’ seems to apply more to the not-enough-European states outside the EU borders than to its own members. Is there some kind of double standard for established and potential members?
On the one hand, the EU is not supposed to intervene in domestic affairs, which allows its members to retain their sovereignty. This to some extent justifies ECJ’s inaction towards the bordering on undemocratic tendencies of Poland. On the other hand, Poland is one of the largest beneficiaries of the European budget despite its internal policies being often contrary to the supposed shared values. It creates an interesting precedent — why does a block that praises itself in being a haven for human rights keeps on funding the member states that do not uphold that standard? Could it be that the European Union is not as much about liberal values and more about purely economic integration as some would like to believe?
If Poland has such issues with European law, why is it simply not going to leave? With 84% of Poles having positive views on EU membership, even the populists from the ruling Law and Justice party would not dare to anger the majority. Take a trip anywhere in Poland and you are going to see large, blue banners scattered all over proclaiming that this or that establishment was made possible by the European funds — a standing testimony to Polish favourability towards the EU. Poland will not be suspended in its rights to vote and representation as the Council needs a unanimous vote to go through with this, which given Polish alliance with Hungary is an improbable outcome. Therefore, it is much more likely that instead of Polexit we are going to be faced with, what the Economist called, ‘a dirty remain.’ This will be even more problematic. The Polish government has effectively undermined European authority and it will likely continue to do so from within. Apart from the chaos in the legal department, this challenges the principles of European values for all the member states setting a dangerous precedent.
The ‘dirty remain,’ however, was not that altogether unexpected. Poland had the cookie and was eating the cookie for years. Regardless of what was happening domestically, it was still able to cherish the favourable allocations from the European budget. Up until now, Brussels did not issue anything more than an official statement. When Poland and Hungary vetoed the budget last year, it was amended. When the Polish government infringed on the principle of independence of the Court of Justice and appointed Constitutional Tribunal judges to be favourable to the party, the European Union gave a warning. Against this warning, Poland retaliated with the trial in 2017. The same trial which results we are seeing now. If the European Union truly is the political body bound by shared values that it claims to be, why did we have to wait for a crisis that undermines its authority to see a change in policy towards its members? The populist Polish government is playing a dangerous game with the EU — one that might have dire consequences for the whole community. Yet, it has to be understood that in the previous years Brussels did not really offer any incentives to Poland to change its policies. In front of our eyes, we were seeing a crisis of political integration that came to its current tipping point.
This is not only an issue for the European Council, but also for the Polish population. There is a fear that Poland will soon be treated as ‘the sick man of Europe’ — this problematic country on the EU’s Eastern Border with a semi-authoritarian government that is a little annoying when any major legislation wants to be passed. Almost half of all Poles, who dislike the Law and Justice party, this is a cause for worry. For many, the European Union was a shield from the government crashing on individual freedoms. When Poland essentially banned abortion, women had to rely on the hospitality of its fellow EU members, such as Germany and Denmark, to allow them to undergo the procedure there. Albeit faintly, European laws offered a degree of protection for those who were discriminated against. Trust in the EU being a union of values gave hope even when there was little tangible intervention. Now that the European rule of law was undermined, I am less worried about its impact on the institution than about those Poles who relied on it before.
Whenever domestic political turmoil in Poland gets international attention, I always hear someone say “Poland should not even be a part of the EU” or “everyone would be happier if Poland left.” Not everyone — probably not the 84% favourable to the EU and definitely not the 49% that did not choose the Law and Justice party. In 2004, when Poland and seven other post-communist states were admitted to the EU the aim was to share those liberal values with them. The promise of becoming a part of the European Community was a promise of economic growth, but also of civil rights and a stable government. Therefore, when one of the member states acts out and attempts to overthrow some laws, Europe is needed even more. It is easy to govern a Union of rich states with a long history of democracy that was never a part of the Warsaw Pact. Germany and France could probably do more or less alright without the EU. Their Eastern and Southern friends probably would not. If the principle of helping to close the development gap was at any point a real objective for the EU there is no better time to prove it than right now in Poland. In these challenging times, the Polish population needs the European community in order to hold on to those liberal values that are still respected.
What the current judiciary crisis in Poland demonstrates is the need for stronger internal policy in Europe. If the European Union is the alliance based on shared values it claims to be, it has to make sure that those values are, in fact, shared by all of its member states. More and more populist governments might find themselves in power or some others might come and try to undermine the authority of the institution. If Europe wants to be more than an economic community, Brussels must soon find a way to endure that. Europeans like to think about their continent as a human rights stronghold bound by a unique and virtuous identity. Crises such as this one pose interesting questions about the nature of the European community and what it presents. Chaotic as it is, all this can push us forward. The concept of Europe is a fairly modern idea and now we have a rare opportunity to redefine who we are and what we stand for.
Written by Julie Uszpolewicz in collaboration with Res Publica Politics
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