By Giorgia Botter and Martina Busetto
The year 2015 marked a very important political change in Poland: the right-wing populist and national-conservative Law and Justice party (PiS) won both the presidential and legislative elections. Right from the beginning PiS started to exert its influence over state institutions by undertaking controversial judicial reforms which jeopardized the judiciary independence and the rule of law in Poland. In 2016 the European Commission had to step in since Poland was no longer respecting the fundamental principles of the Union. Is this situation putting the entire community at risk?
Poland’s democratic backsliding
As any party in power – no matter to which political orientation it belongs to – PiS seeks to reshape the structure of the country to its liking. This change can happen only when the country’s institutions are not well-consolidated and the national law allows it.
Since the Law and Justice party came to power, the judiciary, the media and the education system have been directly affected by a revolutionary program of institutional reforms that caused a worsening in the relationship toward the European Union.
In 2015 and 2016 the Polish legal landscape was redrawn by the activity of the Government whose aim was to assert control over the judiciary: this action affected directly the Constitutional Court and afterwards the other national courts. The Constitutional crisis over the Constitutional Tribunal has been characterised by the passing of laws aimed at limiting the powers of the judiciary and placing government judges, rather than independent ones, in the various courts. Moreover, the subsequent adoption of the new Act on the Public Prosecutor’s Office legitimated the merger between the prosecutor’s office and the Minister of Justice. Besides, in January 2017, the Polish Government continued to strengthen its hold on the judiciary by announcing plans for a large-scale judicial reform project: if implemented, such a proposal would allow the Government to produce subversive changes in the legal system without going through a Constitutional reform.
In 2019, the Parliament voted to allow the Disciplinary Chamber of the Supreme Court to remove judges involved in political activities. This permitted the Government to gain de facto control over the entire judiciary. All these measures have substantiated the Parliament and Government’s interference in the judiciary, which is the institution that is supposed to supervise their action. This obviously damaged the democratic progress because the separation of powers is not guaranteed anymore.
According to 2016 Freedom House Index report, Poland worsened its ranking by scoring 78 out of 100, lowering most of the scores achieved in previous years. The reforms by PiS have thus strengthened its political influence over state institutions and this was accompanied by an increase in nationalist and discriminatory rhetoric.
In comparison, 2022 Freedom House Index Report defined Poland as a semi-consolidated democracy and registered a score of 59 out of 100.This result can be explained on the basis of the instrumentalization of the Constitutional Tribunal which attacked the European Treaties, the European Convention on Human Rights (ECHR) and reproductive rights.
The respect for the rule of law has been questioned. As a member of the EU and a democratic State, Poland has the obligation to comply with the rule of law norms and with the independence and impartiality of its judiciary. The table below stresses the worsening of the rule of law crisis in the country, by giving a mark for every indicator analysed.
Poland’s negative response to the appeals of European institutions to reverse the democratic backsliding has resulted in the opening of several infringement proceedings by the European Commission, the freezing of the pandemic-recovery funding, and the issuing of numerous decisions and orders by the ECJ.
The (In)Effective EU’s Action
The most considerable tool the EU has in its hands in order to ensure that all Member States respect the common values on which the Union is grounded is article 7 of the Treaty on the European Union (TEU). Article 7, also called ‘nuclear bomb’, can be enacted when a Member State has persistently breached or there is a clear risk of breaching EU’s founding values such as the respect for human dignity, democracy, the rule of law and freedom. This article can be considered as the very last option for EU institutions, since the European legal system does not provide for a mechanism of expulsion. By enacting article 7, EU institutions can suspend a Member State’s membership rights, such as the right to vote within the Council of the European Union.
Before starting this procedure against Poland, the European Commission tried to achieve its goals with a softer mechanism, the Rule of law Framework, opening a dialogue with the Polish Government that started in January 2016. The Framework is based on three levels: the Commission assessment, the Commission recommendation and the monitoring of the country’s adaptation to the Commission recommendation. Seeing that no progress has been implemented by Polish authorities, the European Commission launched the first infringement procedure based on article 7 in 2017, which was followed by many others in the subsequent years with the aim of safeguarding judicial independence in the country. Poland did not display interest in complying with the criteria that every Member State is required to observe before entering the Union. In addition to this, in July 2021 its Constitutional Tribunal claimed that some provisions of the EU treaties are incompatible with Polish Constitution and ECJ rulings. This represents a fundamental breach of the principle of the supremacy of EU law over conflicting national laws derived from the European Court of Justice jurisprudence. Therefore, the Commission opened another infringement procedure against Poland on 22nd December 2021. The rulings of the Constitutional Tribunal also contrast with the general principles of autonomy, effectiveness and uniform application of Union law, as well as article 19 of the TEU, which guarantees the right to effective judicial protection.
Not even the economic sanctions imposed against Poland seem to produce the expected result of pushing the country towards observance of EU principles. The Commission withheld billions of euros of EU funding programmes intended for Poland, and Warsaw continues to be fined 1 million euro per day for failing to comply with European guidelines.
The most recent news dates 15th February 2023: the Commission decided to refer Poland to the Court of Justice of the European Union because of the violations of EU law by the Polish Constitutional Tribunal, which no longer meets the requirements of an independent body.
Has Poland experienced a half-way democratic transition?
Looking at the ongoing crisis of the rule of law in Poland some scepticism could arise when the country’s democratic transition is analysed. A successful democratic transition should affect all areas of society, such as the legal, economic and cultural ones. According to Wojciech Sadurski,
Professor in the Centre for Europe in the University of Warsaw, these fields require different ways and times to complete the transition depending on how much they are rooted in communism. Thus, the question arises whether the progressive degeneration of democracy in Poland stems from a successful or failed transition, defining the second case a transition without having a true democratic culture. The transformation that Poland experienced starting from the 1990s cannot be defined as a true democratic transition, as it was only a parenthesis. This phase did not put down roots of a usual process of development and maintenance of State democracy. It almost seems as if the changes that took place in the country never permeated Polish society, thus not becoming a modus vivendi of the people, but rather the realisation of a process that few wanted to pursue. Despite the strong national sentiment of Poles, Sadurski also claims that the “soul of the people” remains tied to the values of the USSR typical of the old Soviet mentality. Some could underline the fact that the Polish democratic transition may have occurred too quickly, without rooting the ideal of democracy and rule of law deeply in the collective consciousness. The resulting mentality is that of an occupied population: what we witness is the aftermath of the mentality of occupied, unfree people that are accustomed to seeing their rights and guarantees denied in favour of authority and State power. Confirmation of this stems from the weakness of the Polish democratic movement: such inadequacy reveals how the transition was limited to official adjustments (Constitution and institutions), but failed in producing changes in people’s thoughts. This remark is furtherly reinforced by observing the easy rise to power of a sovereigntist and populist party such as PiS and its maintenance of almost absolute power and consent. To conclude, it often happens that pro-European and democratic policies are used by the party as a scapegoat to justify and condemn the people’s malaise, thus making them subjected to propaganda. Based on what is happening, it is desirable for Poland to put aside the tug-of-war undertaken with the EU and promote the path of cooperation.
So… is the situation in Poland really putting the Community at risk?
To answer this question, first of all we have to keep in mind that the European Commission is not familiar with countries that were once democratic and now are experiencing a regression. For this reason and due to the lack of tools, the EU has not responded very effectively. Secondly, “once granted membership, states are expected to maintain the basic values of the Union”. However, Poland and other Member States are no longer giving importance to them, since they are already Members. Probably, this has occurred because the pre-requisites were too ambitious for a newly born democracy like Poland in 2004. Therefore, the expansion of the Union’s competences loses its meaning when looking at countries such as Poland that, by not respecting the fundamental values of the EU, are undermining its very existence. This is why the EU needs a major and effective power of coercion to preserve its integrity. Lastly, according to the principle of equal application of European law across the Union, the EU should solve the dispute to ensure to all EU citizens, including the Polish, the same benefits and rights.