From the courts to the media, Poland’s new government has passed a number of new reforms that have the EU concerned about creeping autocracy. Complaints thus far have fallen on deaf ears in Warsaw, triggering calls for firmer action from Brussels. By SPIEGEL Staff
No, Frans Timmermans says, unfortunately he still hasn’t received an answer. The deputy head of the European Commission has written to the government in Warsaw twice in recent weeks to express his concern over the rule of law in Poland. Instead of the requested letter, all he got was gloating on the part of new Polish Foreign Minister Witold Waszcykowski. Any EU official “who came to office via political connections” is “not a legitimate partner” for a government elected by the people, Waszcykowski scoffed.
Timmermans these days is having to exercise his utmost diplomatic skill in order to avoid an escalation of tensions. When, during a visit to Amsterdam on Thursday, Timmermans was asked about the Polish foreign minister’s jibe, he could have struck back. But there is already enough tension, so he chose to take a different tack, instead praising the transformation of Eastern European countries from socialist dictatorships to free societies. But, he added, true democracies include two important elements: the protection of human rights and adherence to the rule of law.
The fact that Timmermans had to utter something that obvious says a lot about the current state of the European Union — and developments in Poland. In less than two months, the country’s new nationalist-conservative government has succeeded in disempowering the constitutional court, passing a law establishing government control over public broadcasting and installing party-aligned political appointees at the head of its intelligence services. “We want to cure our country of a few illnesses,” Foreign Minister Waszcykowski told Germany’s tabloid Bild earlier this month.
It’s a choice of words most often associated with autocrats and has alarmed the European Commission. On Wednesday, the EU executive is expected to discuss whether or not it will open the so-called “rule of law mechanism.” Should it do so, it would mark the first time a member state has been subjected to that level of scrutiny for violating the fundamental values of the European Union.
The procedures were established in 2014 as a kind of early-warning system to counter anti-democratic developments. If invoked, it stipulates that governments must account to the EU for changes to legal and constitutional changes — and ultimately to repeal those law that run afoul of EU policy.
With his suggestion that Warsaw be placed “under supervision,” Günther Oettinger, Germany’s member of the European Commission, fueled widespread suspicion within the governing Law and Justice (PiS) Party in Poland that the developments coming out of Brussels might be part of some kind of Berlin-led conspiracy. “No pressure, no words, especially those from the lips of German politicians, will defer us from this path,” PiS party boss Jaroslaw Kaczynski told supporters on Sunday. “We will repair Poland. We will implement this reform program.”
So far, Merkel’s government has resisted openly criticizing Poland in light of historical burdens in the relationship between Germany and Poland. But other politicians have been outspoken, including Martin Schulz, the center-left Social Democrat — and German — who is president of the European Parliament. On Sunday, he likened current developments in Poland to “Putin-style politics.” And in an interview with SPIEGEL published on Saturday, Volker Kauder, conservative floor leader in German parliament, pleaded for sanctions against Poland if the country continues to violate the principles of rule of law. “If violations of European values are identified, then the member states must have the courage to apply sanctions,” he said. “The Polish government needs to know that certain fundamental values in Europe cannot be infringed upon.”
Those comments and others made by German politicians prompted Poland’s foreign minister to summon Germany’s ambassador to a meeting on Monday to discuss “anti-Polish” statements. After the meeting, the Polish foreign minister pleaded for more frequent visits by leading German politicians as the best solution for “communications problems.”
In Berlin on Monday, Foreign Minister Frank-Walter Steinmeier announced he would accept an invitation by the new government in Warsaw “in the very near future.” Meanwhile, Chancellor Angela Merkel’s spokesman also emphasized close ties. “Germans and Poles are neighbors, partners, friends,” he said. “We want to preserve and further precisely that — even deepening it where possible.”
“We cannot allow the current debate to lead to a bilateral conflict between Germany and Poland,” says Michael Roth, the center-left Social Democrat state minister in the Foreign Ministry responsible for European affairs. Instead, Berlin is counting on the European Commission — and is hoping that Warsaw isn’t seeking to distance itself from European values in the long run.
But is that realistic? “We view the allegations that we are breaching rule of law as pure arrogance,” says Karol Karski, a constitutional law expert and PiS member of the European Parliament representing Poland. He says his party is unruffled by the prospect that the rule of law mechanism may be opened. He says it was the liberal government that preceded his, after all, that populated the constitutional court and the media with its people. Karski claims the moves had been made in order to make it impossible for PiD to govern and that this is now being corrected.
Still, the pace at which the nationalist-conservatives have been pushing through reforms in parliament has caught many Poles off guard as well. During the election campaign for the presidency and parliament, Jaroslaw Kaczynski’s party had positioned itself as moderate and avoided polarizing, nationalist tones.
Almost as soon as they were in power, however, the nationalist-conservatives began showing their true face. First they began appointing their own party members to the constitutional court and then followed up with a singular blow to the freedom of the press. Between Christmas and New Years, a time when politics usually comes to a standstill in this deeply Catholic country, the government used its majority in parliament to pass a new media law mandating that the most important posts at public radio and television stations will be appointed directly by the government. For its next step, the government is planning to suspend the contracts of all journalists at state broadcaster TVP. A director appointed by TVP is then expected to “review” each individual journalist before making any rehiring decisions.
‘Government Propaganda Broadcasters’
“We’re heading towards conditions that fit the pattern of Moscow, Minsk or Budapest,” says Tomasz Lis, Poland’s most important news anchorman, but also arguably the journalist most-hated by the nationalist-conservatives. “PiS is going to turn the state stations into government propaganda broadcasters,” he argues. “They see no difference between the interests of the state and those of the party. We’re still familiar in Poland with that kind of conception from communist times.”
The most controversial move so far is a new law passed that requires a two-thirds majority for decisions by the Constitutional Tribunal, which decides on the constitutionality of Polish laws, rather than the previous simple majority. PiS is expected to follow the move in the coming year by seeking to bring further institutions key to power and the administration of justice under its control. These include the highest court, the highest administrative court and the office of the human rights commissioner. In March, PiS also intends to introduce its plans for the reform of the state prosecutor’s office. Under the reform, the justice minister would also assume the role of chief prosecutor in what would be a clear violation of the principle of the separation of powers.
Behind all the moves is PiS party leader Kaczynski, a nationalist who emerged as a political figure in the anti-communist opposition during the 1970s. “He belonged to the conservative faction,” says Wojciech Sadurski, a law professor in Sydney who studied with him. “What bothered him most about communism was less the fact that it was undemocratic and more that it was ‘un-Polish.'” For many, the Polish People’s Republic was nothing more than the manifestation of Russian foreign control over Poland, he says. “Kaczynski still dreams today of centralizing power,” says Sadurski. He argues that Kaczynski finds protracted democratic policy debates, internal party wrangling and minority interests with suspicion.
The PiS chairman is also the reason it will be difficult for Poland’s EU partners to convince the country to make concessions. There is little contact with the 66-year-old. Given that Kaczynski has no official government function, it would also be unusual in terms of diplomatic protocol for leaders like Chancellor Merkel or European Commission President Jean-Claude Juncker to request meetings with him. The nationalist-conservative prefers staying in the background, meeting only seldom even with his own party colleagues. “He will continue with the restructuring of the state,” former college friend Sadurski says.
Since December, tens of thousands of people have taken part in Warsaw and other cities against what some have described as a “creeping coup.” In order to contain popular outrage, the government is currently preparing a series of social reforms. Among the initiatives is a move to sink the retirement age again — which was raised by the previous government — to 60 for women and 65 for men. The minimum wage is to be increased and Polish mothers will also get a 500 zloty monthly family allowance. Following the Hungarian model, special taxes would also be imposed on supermarket chains in order to ensure that small Polish businesses remain competitive. Legal expert Sadurski calls these measures “attempted bribery.”
Ultimately, the European Commission’s room for maneuver is limited. It can deploy the rule of law mechanism, but the process is a complicated one. If the dialogue on the rule of law deficits between the Commission and the member state fails to make headway, the Commission has the option of introducing procedures outlined in Article 7 of the Lisbon Treaty.
High Hurdles for Sanctions
At that point, however, high hurdles are set in place for any sanctions. First, the European Council, the powerful body representing the leaders of the member states, would be required to determine with a four-fifths majority vote that there is a “clear risk of a serious breach of the EU values by a member state.” It’s hard to imagine that other countries that have been the subject of criticism for their democratic deficits, including Hungary and Slovakia, would leave Poland in the lurch.
In addition, sanctions like the suspension of voting rights can only be imposed if the European Council unanimously agrees that the breach of EU values existing in the member state in question is “systemic and persistent.” As grave as the PiS’ state incursions have been, they are unlikely to fulfill that criteria. “There would have to be something like a military putsch in Warsaw for that to happen,” says one veteran EU diplomat.
As such, officials in Brussels and Berlin are considering other ways to pressure Poland to shift its stance. Like the Baltic States, the country is demanding solidarity from the Europeans when it comes to dealing with potential problems with neighboring Russia. It’s a card that the Poles have often played in the past — most recently only a few days ago. Warsaw officials said a vote in favor of British EU reform proposals was conceivable if Britain were to increase its military presence near the Russian border. The government in Warsaw would also like to see the establishment of a permanent NATO base in Poland, a move Western Europeans have so far rejected out of consideration for sensitivities in Moscow.
‘Those Who Want Something also Have to Give’
Better leverage, however, may be offered by this year’s review of the EU’s financial framework. During the European refugee dispute, European Parliament President Schulz already suggested he would be prepared to use this mechanism in order to force the Poles to behave. “The medium-term planning requires unanimity,” he said. “Those who want something also have to give.”
In mid-January, the European Parliament plans to address events in Poland during a session in Strasbourg. Herbert Reul, who heads the conservative Christian Democrats’ faction in the EU parliament, says it is likely that a strongly worded resolution will be drafted. “If political means of dialogue don’t work, then we need economic sanctions,” he argues.
Reul believes the Poles should be threatened with the withdrawal of EU subsidies. In 2014 alone, Poland netted €13.75 billion ($14.9 billion) in funds from the European budget. Indeed, no other country has profited as much from the European cash bonanza. The Brussels subsidies, for example, made the rapid construction of Poland’s highway system possible.
Even as Merkel has thus far avoided making public statements on the issue, her patience with Poland is finite. “It strikes me as somehow very strange that those who consider themselves lucky that they have lived to see the end of the Cold War now think that one can completely stay out of certain developments of globalization,” she told members of the center-right European People’s Party at the beginning of October in Strasbourg.
It appears that Warsaw isn’t entirely indifferent to perceptions in Brussels and Berlin. Many EU parliamentarians were taken by surprise the weekend before last when they received hundreds of emails from anonymous Polish addresses written in their respective languages. “We want to reassure you,” the messages read, “democracy in Poland is in no way under threat.”
Despite all its reservations about German dominance in Europe, Warsaw needs to be careful not to allow relations with Germany to cool off, argues Krzysztof Bluszcz of the Warsaw-based think tank Demos Europa. He says the alliance with Germany is important, especially when it comes to the Ukraine crisis. PiS, he says, is highly critical of Russia and considers it imperative that sanctions against Moscow be maintained.
But if Warsaw begins fighting with Berlin, Poland could fall into a situation in which historical traumas are reawakened — one in which it finds itself wedged between the major powers Germany and Russia, ignored in Berlin and viewed with hostility by Moscow. This may explain why PiS politicians are currently stressing the importance of their good ties to Germany, wherever they get the chance. Even EU parliament member Karski says, “We want the best of relations.”
After months of silence, Warsaw is now seeking dialogue with its German neighbors. Last week, the office of Prime Minister Beata Szydlo contacted the Chancellery in Berlin. She is finally expected to make her first official visit to German Chancellor Merkel on Feb. 12.