23 Jul 2021

Is Polexit on the cards?

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Introduction

In the classic Polish movie Sami Swoi, we see two comically feuding families. As part of the resettlement arrangements after World War Two, they have been repatriated from pre-war eastern Poland to the western part. They are neighbours, for better or worse. They fall out and make up, fight and love each other again. One day, as they head for the court, an elderly lady hands over a grenade, with the order: “take it…a court is a court, but justice must be on our side”. This is precisely the potentially explosive approach of Jarosław Kaczyński and his entourage: we refuse to talk, but we will shout over your heads, and we are always right. Any discussion is pointless, unless you agree with us.

Nothing demonstrates this better than the stand-off between the authorities in Warsaw and the European Union, as well as between Poland and its closest neighbours (the only conflict-less place being the Baltic Sea). Any rational and merit-based dialogue is nigh on impossible. The most recent episode took place over the past two weeks when the Court of Justice of the European Union (CJEU) issued yet another interim order requesting suspension of the Disciplinary Chamber of the Supreme Court, followed by yet another judgment declaring that Poland was in breach of foundational principles of EU Law. A similar conclusion, but in relation to the European Convention on Human Rights (ECHR), was reached by the European Court in Strasbourg. Simultaneously, the Polish Constitutional Tribunal issued a judgment proclaiming such interim orders of the CJEU unconstitutional.

But does any of this really matter for the EU, its legal order, and EU-Polish relations? If it does, then have we just moved closer to ‘Polexit’?

The limits of a cosy chat

In the case of Poland and Hungary, its unruly teenage member states, the European Union has so far resorted merely to cosy chats. Article 7 TEU procedures, combined with the plentiful cases brought to the Court of Justice by the European Commission, and references for preliminary rulings submitted by desperate Polish judges, have changed very little. Arguably, the limits of this dialogue-based interaction have been reached. Any further declaratory judgments coming from Luxembourg, or symbolic damages ordered in Strasbourg, will be very important but, rest assured, they will be ignored. The Warsaw regime has pushed itself, domestically and internationally, into so many cul-de-sacs that it needs to escalate its ‘patriotic’ war with the European Union to create smokescreens for its loyalists. Like any good regime, it needs enemies to thrive. From the EU perspective, any attempts at a dialogue with those ruling Poland are clearly futile, as they have all the finesse of the Soviet Union First Secretary Khrushchev banging his shoe at the UN headquarters. With this in mind, the question remains as to what the European Union should do next. What kind of a decision, or penalty, could make an impression on the illiberal Polish regime?

The next steps: rule and penalise

In political terms, Polexit began a few years ago. The most recent developments are just further steps along the route. The EU must now up its game, otherwise it is willingly allowing Poland to join Hungary in the exclusive club of EU member states that are beyond repair. In this respect the recent events send a worrying signal. Knowing what was coming, Ursula von der Leyen meeting with the Polish Prime Minister Morawiecki on the eve of the judgment of the Polish Constitutional Tribunal was not a faux pas, but an error of judgment. It is clear that Jarosław Kaczyński’s regime occupies a binary world. It eagerly extends its arms to receive even more EU money to cover the costs of its populist largesse. Yet it has no desire to play by the rules of the game. It’s that simple. Such missteps on the part of the EU only assure the regime in Warsaw that it can get away with pretty much anything.

Warsaw’s next onslaught on democracy and the rule of law is the prima facie ‘innocent’ proposal for the revision of media law. You don’t have to be a rocket scientist to realise that the main purpose of that proposal is to dismantle independent media in Poland, in particular TVN, its main critic. But the European Commission’s initial reaction was a squeak, not a roar. Once again, by the time it is likely to act, it will be too late. Even if the Law and Justice Party (Prawo i Sprawiedliwość) (PiS) shelves this proposal for now, it will recycle it as soon as it needs another battle to divert public attention from more pressing problems on the ground. Yet what happens in Warsaw is straight out of ‘Illiberalism for Dummies’.

The steps taken by PiS are not original by any stretch of the imagination and can be easily anticipated. The European Union should be fully aware of this and make plans for various courses of action. Above all, it should stick strictly to rule of law conditionality in the disbursement of EU funds. The newly established rule of law conditionality framework should be used in full and without hesitation. After all, the EU owes it to its taxpayers. As for the infringement procedures, the European Commission should bring the era of political politeness to an immediate end. Every instance of non-compliance with declaratory judgments of the Court of Justice should be quickly followed up. The weapons in the European Commission’s armoury are not used often enough, even though they have the potential to be effective. As the starting point, the European Commission should regularly employ Article 260 TFEU, allowing it to request, and the Court of Justice to impose, financial penalties for non-compliance with the earlier judgments of the Court. Bearing in mind that proceedings in Luxembourg take a while, the European Commission may simultaneously ask for interim orders, requesting Poland to comply with immediate effect. This, as we have learned, makes no impression on the authorities in Warsaw. Therefore, such requests should be inextricably linked to financial penalties. The European Commission’s ultimatum issued on 20 July is a very good step forward. If Poland does not comply with the already mentioned CJEU interim order by mid-August, the Commission will file to the Court a request for penalties. With the amount of Polish rule of law cases pending in Luxembourg (and, for that matter, in Strasbourg), this approach of the European Commission should become a new normal. Perhaps, when money talks, PiS will finally start to listen.

What about Polexit?

For a legal Polexit to happen, Poland would have to trigger Article 50 TEU. As is clear from the judgment of the Court of Justice in the Wightman Brexit case, no state is in the EU by force, nor will they be kept so. Kaczyński has a free hand to press the ‘eject’ button. It is debatable how, from the Constitutional point of view, this should be done. One needs to remember that PiS has limited respect for any laws not to its liking, including the Polish Constitution. When it needs to be, the Constitution is a shield, but whenever it is convenient to ignore it, it is easily circumvented.

As for the events of the past couple of weeks, in purely legal terms and for a number of reasons, the judgments of the current Constitutional Tribunal have to be taken with a pinch of salt. First, the Tribunal is partly composed of judges appointed in breach of the Constitution. A breach of ECHR in this respect has recently been confirmed by the European Court of Human Rights. One such judge sat on the bench in the interim orders case handled last week, making it an illegally appointed Tribunal. Fake judges, fake court, and a fake judgment: a quintessence of illiberalism. Be that as it may, the selection of judges for that case provided a good example of the PiS hypocrisy about the ‘reforms’ of the Polish judiciary. They have been pursued under the banner of cutting ties with the communist past. Yet the judge who announced the reforms had served as public prosecutor during the communist regime. Before becoming a judge of the Constitutional Tribunal, he had been, thanks to PiS votes, their faithful member in the Parliament. In fact, most of those at the bench, including its controversial President, are loyal servants of their political master, Jarosław Kaczyński. Thus, it is a so-called Constitutional Tribunal. As nothing but an extension of the ruling party, it is surely not what the Polish Constitution envisages. It is hardly surprising that its ‘judges’ welcomed with open arms the recent challenge by the German Constitutional Court to the authority of the Court of Justice. With a ricochet, this gave ammunition to the populists in Warsaw. They are thirsty for merit-free and out-of-context soundbites that allow them to contest any legal authority but their own. This applies to the Constitutional Tribunal as much as to the representatives of the Ministry of Justice and PiS at large.

Conclusions

All in all, any further dialogue with the current authorities is perfectly nice, but pointless. They will just play for time and keep on with ‘reforms’, making sure that justice Sami Swoi­-style is on their side. However, one would expect that the suspension of financial transfers combined with decisions of the Court of Justice imposing financial penalties for non-compliance with interim orders and earlier judgments, could help. After all, money talks. In political and legal terms, it is worth picking up the fight as the shenanigans of PiS are increasingly becoming a threat to the functioning of the European Union. As for Poland, one needs to remember Donald Tusk’s point, that it is not the country itself that is marching to the EU exit door, but rather Kaczyński and his loyalists.

What can ultimately change the situation on the ground? Arguably, the main hope lies with the voters and their choices when the next elections to the Polish Parliament, which will take place two years from now at the latest. Tusk and his newly regained Platforma Obywatelska, together with like-minded political parties, have quite a task ahead. If they lose, the European Union may face another departure from its ranks.