Opinion

Time for Brussels to ‘go nuclear’ on Warsaw

Poland's Law and Justice party has paid little attention to the EU's 'reasoned opinions.'

Protesters raise candles during a protest against judicial reform on July 20, 2017 in front of the presidential palace in Warsaw | Adam Chelstowski/AFP via Getty Images

Poland’s right-wing reactionary Law and Justice (PiS) party came to power less than two years ago. Since then, it has wrecked the country’s legal system and devoured its judiciary, achieving something extraordinary in post-1989 Europe.

With EU countries eager to avoid conflict, it has fallen on the European Commission to offer “political dialogues” and “reasoned opinions.” But this war of words has had little success. It’s time for EU members to support triggering Article 7 sanctions against Warsaw and send a clear message that, if its assault on the rule of law continues, serious consequences will follow.

It should be obvious by now that PiS won’t back down easily. It is implementing a plan, devised 12 years ago, that sets Poland on the road to a one-party autocracy with the judiciary as its pawn.

The party has attacked the country’s democratic institutions and judiciary since 2005. With fervent, conspiracy-laden rhetoric, PiS blamed the country’s negotiated transition and ex-communist elite for all of Poland’s ills and took concrete steps to rid public life of them.

In fact, if we look back at what happened then and what is happening now, the similarities are disturbing.

The EU has no choice but to keep pressuring Poland if it wants to prevent the risk of further contagion and the certain demise of the Union as a community of values.

Between 2005 and 2007, the coalition government led by PiS purged public media and pressured private outlets, under the claim by then Prime Minister Jarosław Kaczyński that they were owned by “oligarchs.” At the same time, it launched a ferocious lustration campaign against the country’s intellectuals and waged a war on the judiciary.

Because some of the attacked institutions — most importantly the judiciary — successfully resisted pressure, the wobbly coalition government ended its tenure in mid-2007 without doing lasting damage.

Less than 10 years later, PiS returned to power, winning the election on a toned-down platform focusing on socio-economic promises. It then quickly set out to dismantle the judiciary and transform Poland from an alleged “courtocracy” to a “democracy.”

In its first 16 months, PiS unlawfully appointed judges to the country’s Constitutional Court, refused to respect several of its rulings and greatly hindered its day-to-day functioning. By this spring, PiS had grabbed a majority on the court, allowing it to use the institution as a rubber stamp in its ongoing judicial reforms.

Now, PiS has turned its attention to lower level courts and the Supreme Court. In four separate pieces of legislation drafted this summer, the party further blurred the line between the judicial and executive branches. Two of the proposed laws were vetoed by President Andrzej Duda in July, but the remaining two passed, giving unprecedented powers to the minister of justice.

Justice Minister Zbigniew Ziobro can now dismiss all court presidents and vice presidents — there are more than 300 of them across Poland — tasked with administrative duties such as assigning and transferring judges. He has already dismissed three. He can also decide whether to extend judges’ mandates after they reach the newly lowered retirement age.

These laws will cripple the independence of the judiciary. Any judge that goes against the perceived wishes of the minister, who also happens to be the prosecutor general, will now risk his or her career.

Given the party’s consistency and ideological zeal, it is very unlikely that it will listen to additional “reasoned opinions” from Brussels.

Once an illiberal government warps state institutions, the situation will only deteriorate — as we are seeing in Hungary. The cost of facing up to undemocratic behavior will increase.

Skeptics will inevitably argue that a multispeed Europe will relegate unruly countries to the periphery “where they belong” and avoid the need for confrontation. But this approach would give the EU even less leverage to support the rights of fellow European citizens outside the core group of countries.

Such a short-sighted approach is dangerous. Other members and members-in-waiting could feel emboldened by Warsaw’s renegadism, and having rogue countries in the EU’s backyard would pose a danger to the bloc — especially if those rogue countries are geographically close to Russia.

The EU has no choice but to keep pressuring Poland if it wants to prevent the risk of further contagion and the certain demise of the Union as a community of values.

Despite its reputation as the “nuclear option,” Article 7 is, in fact, a lengthy process. It offers plenty of opportunities for recalibration.

Instead of trying to come up with additional intermediate measures, the Commission, with support from EU leaders at the next European Council meeting, should launch Article 7 proceedings against both Poland and Hungary at the same time. This will prevent one from protecting the other.

Brussels should also not shy away from making clear that it is not afraid to use the real nuclear option — cutting down access to structural funding.

Ultimately, it will be up to the Poles to decide what happens in their country. But the EU must make it crystal clear what the consequences will be.

Most citizens disagree with PiS’ recent push to demolish the judiciary, but it’s easy for them to look away — as we are seeing in Hungary — as long as the only downside to their government’s actions is a bureaucratic war of words.

The EU exists because democracies are fallible. As history has proven, the very means underpinning them could be used to dismantle them. All EU members have a stake in defending their institutions against this eventuality.

Zselyke Csaky is a senior researcher for Nations in Transit, Freedom House’s annual survey of democratic governance from Central Europe to Eurasia.

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