Poland’s Rule of Law Deterioration

One of the foundational values of the European Union (EU) is to respect and adhere to the rule of law However, starting in 2016, the Polish government has systematically undermined Polish judicial independence and its judicial review system Poland’s total breakdown of the rule of law is a significant threat to the EU’s interconnected legal order. While Polish populist backsliding is partly to blame, the EU bears some responsibility due to the absence of an effective mechanism that keeps member states accountable to the EU’s core values This lack of accountability, in turn, creates a fragmented European Union with diminished prominence on the domestic and global stage. More specifically, the Polish disregard for the rule of law damages the EU’s future integration processes and opens the door to internal disagreements about the EU’s fundamental values.

This essay will proceed in three parts First, I will examine how Poland disregarded EU rule of law. Poland broke the delicate balance between following the EU’s fundamental values and the broad cooperation of member states Second, I will examine what mechanisms the EU has at its disposal to stop member states from acting against EU values — a lack of an effective mechanism greatly hinders the EU’s ability to incentivize cooperation. Third, I will look at the effects of Poland’s rule of law policies on the future of the EU Given that the rule of law in the EU underpins the institution as a whole, its absence in one member state fundamentally delegitimizes other “constitutional pillars of the EU legal system” (Amato and Verola 2018, 83).

Poland and Rule of Law

In order to analyze how Poland has systematically disregarded the EU’s definition of the rule of law, one must look at how the EU defines “rule of law ” Article F in the preamble of the 1992 Treaty on European Union (TEU) presents a significant contradiction when looking at the rule of law issues in the European Union:

The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy (Amato and Verola 2018, 58)

The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental

Freedoms signed [...] and as they result from the constitutional traditions common to the Member States, as general principles of Community law (Amato and Verola 2018, 58).

In essence, the EU is founded on fundamental values such as “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities” (Ziller 2018, 175) Nevertheless, any decision must also align with Article F — the respect of each Member State’s government decisions formed on the principles of democracy. Although the concept of the rule of law is less clear than issues such as democracy and human rights, Amato and Verola argue that the EU requires an independent judiciary, parliamentary reservation, and judicial review (2018, 72). Thus, according to EU standards, if one of these critical components of the rule of law has been broken, effective rule of law does not exist in that country.

Poland’s issues with rule of law stem from the election of the far-right Law and Justice Party (PiS) in 2015 Throughout its period of governance, PiS’s strategy included years of “sustained attacks, deliberately targeting Polish courts, judges, and prosecutors” (Pech et al 2021, 3) Further, Pech et al highlight how Poland became the “first EU Member state to no longer have an independent judicial branch” (2021, 3) as a result of political interference by the PiS The 2019 adoption of the ‘muzzle law’ highlights how the Polish legal system is now a “[S]oviet-style justice system” — where any Polish judge can be subject to “arbitrary disciplinary investigations, proceedings, sanctions and dismissals, initiated, conducted and adopted by unlawful bodies” (Pech et al 2021, 3) The ruling PiS party justifies their judicial reforms with Article F (1) TEU — where the EU must respect the national identities of its member states In 2019, Ursula von Der Leyen, the President of the European Commission, asserted that there can be “ no compromise when it comes to respecting the Rule of Law” (Izdebski 2022) Subsequently, the European Commission suspended a new Polish judicial body, citing its likelihood to cause serious and irreparable damage to the EU legal order due to its ‘lack of judicial independence’” (Pech et al. 2021, 2).

In 2021, the Polish courts recognized the primacy of Polish national law over EU law (Izdebski 2022)

This is significant because EU law recognizes the primacy of community law over domestic member state law (Carbone 2018, 186) The effectiveness of EU community law, with its prevalence over domestic laws of each member state, has never caused a dispute between the EU and a member state “thanks to the… cooperative relationship between the European Union and member states” (Carbone 2018, 186) In terms of courts, neither supranational nor national courts have absolute supremacy over one another (Tosato 2018, 162)

Poland has changed both these institutional precedents with the recognition of the supremacy of Polish national laws over EU law The Polish government is undertaking this rule of law dispute with Brussels because PiS believes it is more important to control its domestic politics and maintain power than follow EU norms. In particular, PiS does not want to demotivate a hardcore right-wing electorate, which would disintegrate their ruling coalition (Izdebski 2022). PiS likely believes that it can violate Article F (2) of the TEU because the EU’s mechanisms to control rule of law backsliding are insubstantial

EU’s Mechanisms

After analyzing how Poland has systematically disregarded the EU’s definition of the rule of law, I will now analyze the EU’s mechanisms to combat rule of law backsliding. There are three broad mechanisms which the EU has at its disposal:

1 2. 3

Cooperation and voluntary respect; Legislative powers, such as Article 7 TEU; Economic powers such as sanctions or fines

After this examination, it is evident that these three mechanisms only work to a limited extent, as even after being subject to all the EU’s mechanisms, Poland continues to disregard EU values. In recent years, the rule of law disputes with Hungary and Poland also reflect how harsher mechanisms by the European Union EU are needed (Woelk 2018, 36). A truly effective mechanism to prevent member states from acting against its legal principles does not exist

Woelk (2018) highlights the “goodwill” paradox, the principle underlying the functioning of the EU legal system. Due to the difficulties with enforcement on a state level, the functioning of the EU legal system is wholly based on the “voluntary respect of its rules by member states” (35).

Building a united Europe is based on the consent and goodwill of member states; in other words, one cannot unify Europe by force This consensusbuilding process is slow, labourious, and requires constant compromises (Tosato 2018, 167) In cases where a member state chooses to act against the collective good of the European Union, “effective and adequate action towards non-compliance with political and constitutional duties is extremely difficult”— an example of this includes the “Austrian Crisis” in 2000 ¹ In recent years, the rule of law disputes with Hungary and Poland also reflect how harsher mechanisms by the European Union are needed (Woelk 2018, 36).

The strictest mechanism that the EU has is Article 7 of the TEU — where member states can be sanctioned if they fail to uphold the values listed in Article F (2) of the TEU, including the rule of law. (Amato and Verola 2018, 78) The scope of Article 7’s sanctions includes the suspension of voting rights of a member state. In order to sanction a member state, the European Parliament must first determine a “clear risk of a serious breach” (Amato and Verola 2018, 78). Next, to ratify the proposed sanction, the European Council can only pass it by a unanimous vote (Amato and Verola 2018, 78)

The existence of Article 7 is essentially a deterrent, and “its inclusion in the system of treaties was precisely with the idea of not having to activate it” (Amato and Verola 2018, 78) The EU views Article 7 as a ‘nuclear option’ to be used when the situation in the member state has “deteriorated so much that no outside intervention can hope to change its course ” (Amato and Verola 2018, 78) Further, Amato and Verola highlight how Article 7 can be undermined because its wording is vague: the definition of a ‘clear risk of a serious breach’ or a ‘point of no return’ is up for debate by member states (2018, 78) In 2017, Poland became the first EU Member State to be subject to the EU’s ‘nuclear’ Article 7(1) procedure (Pech et al 2021, 5) Yet, due to the requirement of unanimity, the mechanism failed to be implemented, as Hungary and Poland agreed to form a “voting bloc” to vote against Article 7(1) ever being implemented against them (Pech et al. 2021, 6).

Beyond the Article 7 procedure, economic power is the EU’s best mechanism to keep member states in check Verdun characterized the EU as an economic giant but a political dwarf — “the EU has always used its soft power over its military capacity to solve problems” (2018, 117) The EU has hit Poland with a multitude of fines and has begun withholding EU funding to Poland for violating the rule of law principles (Izdebski 2022) However, this also seems ineffective; as of December 2022, the Polish government has not reversed its rule of law reforms (Izdebski 2022)

Future Integration Challenges

In this section, I will examine how Poland’s rule of law policies affect the EU’s future. The deterioration of rule of law in Poland happened because the EU did not have an easy mechanism to stop it Mass mobilization for abstract concepts such as the separation of powers and the independence of the judiciary is challenging Further, the Polish government’s rule of law violations happened incrementally over a more extended period (Amato and Verola 2018, 77) These factors all contributed to the situation today. Despite this, “the structural nature of the rule of law — is the most fundamental bulwark in defence of all the Union’s fundamentals” (Amato and Verola 2018, 77). As a result of Poland’s actions, the door to significant challenges to future European integration has opened The European Union has proactively prepared for challenges relating to how future integration will affect their shared values In the early 2000s, with the enlargement of the EU to include many former Warsaw Pact member states, there was an ‘unspoken assumption’ that the EU’s community of shared values was “ no longer sustainable” (Amato and Verola 2018, 62). As a result, the EU amended certain articles, such as Article 49 of the TEU, which “requests the commitment of the member states in promoting its values and interests” (Amato and Verola 2018, 62) Further, Article 3(5) of the TEU states that “the union shall uphold and promote its values and interests” (Amato and Verola 2018, 62) Yet, without specifying what said ‘values and interests’ are, and what priority they should be ‘upheld and promoted’ — member states, like Poland, have plausible deniability toward upholding certain values and not upholding others.

Since member states maintain autonomy and control over the majority of their domestic resources, European integration requires cooperation between states. A system of standard rules and best practices is “far more important for the development for the function of EU integration and cooperation, over the budget and common policies” (Ziller 2018, 175) This is why the rule of law is vital to the EU EU policy is wholly based on he assumption that “legal compliance is a given, and each member state has adequate procedures and internal safeguards” (Amato and Verola 2018, 83). The absence of the rule of law in Poland reveals that the EU lacks specific procedures and safeguards, which presents further challenges to future European enlargement

There is a school of thought that member states voluntarily seek to integrate into the EU because integration is an advantage for them rather than an obligation (Woelk 2018, 36) In other words, cooperation among member states is explained by a “rational strategy,” where many problems can be “better managed by sharing aspects of a member state’s sovereignty,” such as a shared currency (Costa and Brack 2019, 52). The only thing underpinning cooperation between member states is the idea of maximizing gains As a member state, the Polish government benefits from all the economic benefits of the EU but is able to manipulate the rule of law to further its domestic political interests. Poland knows that it can push the EU because there is no mechanism to remove them They are now maximizing their gains

Lastly, European integration “enables effective governance by insulating policy-making from politicization at the domestic level” (Borzel and Risse 2018, 86) Poland’s success in challenging the EU on a fundamental value such as rule of law could set a dangerous precedent. This could accelerate the increasing divides within Europe where the rise of populism proves that more people identify with their nation-state over Europe as a whole (Borzel and Risse 2018, 87) In other words, the growing success and normalization of Poland’s “Eurosceptic viewpoint,” could lead others to follow such a path, which would cause a fundamental rupture in the EU (Costa and Brack 2019, 36)

Conclusion: Future of the EU?

Skeptics point out that the EU has faced a crisis which has threatened its existence on many occasions — the empty chair crisis in the 1960s, the currency fluctuations in the 1970s, the rejection of the constitutional treaty in 2004, the Eurozone crisis that began in 2008, and the war in Ukraine in 2022 (Tosato 2018, 168) Yet, although each of these crises has resulted in a shifting of the institutional balance of the EU, the EU as a whole has survived and has emerged stronger from these crises (Tosato 2018, 168)

However, the rule of law crisis in the European Union is different from previous crises. This is a disagreement about fundamental values, which is causing a rupture within the EU In order to survive, the European Union must come to a consensus on whether it prioritizes respect for policies made by democratically elected national governments or the protection of the fundamental rights of the European Union Poland disregarding the rule of law without adequate punishment sets a precedent for other member states to act against Article F of the TEU, which underpins the EU. The EU’s current mechanisms are insufficient to bring Poland back ‘onside’ The EU must do more—its survival as an institution is at stake.

Bibliography

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