Poland and other “democratorships” defying the fundamentals of the EU

November 8, 2021
Karol Chwedczuk-Szulc

The blog is back! After the summer break, Karol Chwedczuk-Szulc opens the discussion with an interesting commentary on the current situation in Poland. Karol Chwedczuk-Szulc is an Assistant Professor at the University of Wrocław. He holds a PhD in Political Science and a MA in Sociology and International Relations. Currently, his research focus is primarily on EU-US comparative studies, juxtaposing American Civil War with current EU’s crises in a socio-historical perspective. He was a research fellow at the American University in Washington DC in 2015/2016 and a Fulbright Schuman Grant recipient in 2019. His latest publications deal with the potential of Social Constructivism in forecasting, EU-US comparative analysis and the future of the European Union.

The Polish government has apparently taken on the collision course with the EU and has been quite consistent about it. Other EU Member States and the EU institutions are hesitating over what to do with Poland, Hungary and other rule-of-law defying countries. While the Polish PiS-government might not necessarily aim at “Polexit”, it does aim at holding power at home, at all costs. The rest of the EU should understand that.

The current Polish government of the so-called “United Right” (including the PiS and its junior partner Solidaristic Poland) has an ongoing problem with (respecting) the rule of law at home. It started almost from its very inception in January 2016, when amendments of the media law and the law on the Constitutional Court were introduced. The next stage followed with the enforced retirement of judges of the Polish Supreme Court in 2017, which was assessed by European Court of Justice (ECJ) as a threat to common values of the EU laid down in Article 2 of the Treaty on the European Union. Next, there was the case of illegal logging in the Białowieża Forest (UNESCO World Heritage Site) authorised by the Polish government, also in 2017, which was to be halted according to an ECJ ruling. In 2019 and 2020, the issues of the so-called “LGBT-free zones” and serious limitations of human rights by an effective ban on abortion in Poland, raised further controversies in the EU as to the rule of law violations in Poland. Additionally, in 2019 the PiS dominated lower chamber of the parliament created the so-called disciplinary chamber within the Supreme Court, which was ruled by EJC incompatible with the EU law. For failing to discontinue the chamber, the ECJ fined the Polish government with a one million EUR fine per day. The more recent stage of the conflict took place in October 2021, when the Polish Constitutional Court — controlled by the ruling party— ruled that Articles 1, 2, and 19 of the Treaty on European Union are partially unconstitutional, by which it questioned the supremacy of the EU law.

The crusade against the rule of law

The latest ruling of the so-called Constitutional Court in Poland has stirred up the political scene across the European Union. For the first time in the history of the bloc a higher court of a Member State undermined explicitly the supremacy of the EU law over national law. It is a “so-called” or “neo” Court, since the current composition of Constitutional Court in Poland is illegal, both under the Polish Constitution and under the rulings of European Court of Human Rights. From among widely discussed legal details of the current situation in Poland and its crusade against the rule of law, one thing certainly stands out: the Polish government is undermining the very foundation of the European law and is weakening the EU as a community of law. Since the EU is, most of all, a community of law, it cannot exist when the validity of the European law is being actively undermined within its territory. And this is exactly what the Polish government is doing, as we speak. Why is it doing this? Because it can. The EU and its Member States have failed, over the last years, to act decisively in the face of democratic backsliding and erosion of rule of law in Hungary, Poland and other Member States like Slovenia, Czechia, Romania, and Malta, just to name a few. As a result, this only has emboldened autocratizing leaders like Orbán or Kaczyński as well as aspiring imitators such as Slovenia’s Janez Janša. The EU’s reluctance allowed for the tactics of “boiling a frog”, that is, a slow, step by step, regime change of democratic systems into “democtatorships” (see C. Leggewie’s &I.P. Karolewski’s Die Visegrád-Connection).

Power hungry in Warsaw

The EU’s autocratizing countries go down this path because they want to maintain their power at home and the EU has proven to be a lacklustre actor at best when it comes to defending the rule of law. Therein lies the answer to the question about the very roots of the conflict at hand. Still, there is also a background variable behind the conflict: societal longing for sovereignty and the outburst of nationalism after the fall of communism. Especially in Hungary and Poland, significant parts of the respective societies still dream of inbred greatness of their nations, often in face of (real or imagined) historic injustice. Nevertheless, at the moment the matter is that the EU with its democratic values and the rule of law (of which Poland and Hungary knew entirely when they joined the bloc in 2004 and ratified the Lisbon Treaty in 2008) stands in the way of power grab by autocratizing political parties like Fidesz and PiS.

Actually, the Polish government’s aim is not to achieve “Polexit” per se (at least not for now), but if this is a price for “democtatorship” at home, PiS is certainly willing to pay it. And no, the nominal support of 85 per cent of Polish citizens for the EU membership will not stop them. I expect that more than a half of the EU supporters do so based mainly on the benefits received, rather than respecting the rule of law or accepting the EU law supremacy. That is why Jarosław Kaczyński and his messenger, Prime Minister Morawiecki take the risk of organizing a symbolic crusade against the EU. Morawiecki is even willing to say publicly that a “third world war” could be waged between Poland and the EU — an absurd statement at best.

A “civil war” moment?

I believe that a dovish approach of many European politicians towards the Polish government will not appease Warsaw, nor will it save the advancing democratic backsliding. It will only prove to Poles that PiS can do whatever they want within the EU. It can also demonstrate to the rest of EU citizens that this supranational organization is consumed by inertia, preventing it from defending its most fundamental rules and interests. Therefore, I am convinced that we are not facing a European “Hamiltonian” moment, but rather in a “civil war” moment — to draw a comparison with the US history. With physical violence obviously aside, the Europeans still have to answer whether they are really interested in fight legal and political battles for the EU. Perhaps, even for the price of losing some of its members who do not accept basic European values. Just like Americans did in 1860s.

Suggested readings

W, Sadurski, Poland’s constitutional breakdown, Oxford University Press, 2019.

A. Sajó, Ruling by Cheating, Cambridge University Press, 2021.

C. Leggewie & I.P. Karolewski, Die Visegrád-Connection, Wagenbach, 2021.