Polish President Andrzej Duda recently signed the so-called “muzzle law,” which makes it illegal for the country’s judges to openly question the government’s judicial appointments and reforms.
The effects of this law have already been felt by one Polish judge, who was suspended from his position and hit with a 40% cut to his salary. The signing of this law is the latest in the ongoing assault on Poland’s democratic institutions by the country’s ruling Law and Justice Party (PiS).
This law’s passage occurred in the wake of a recent protest where judges from twenty different European countries gathered in Warsaw to demonstrate against the Polish government’s infringements on the independence of the country’s judiciary. These infringements have drawn scrutiny from both Polish and EU judicial bodies. In November 2019, the European Court of Justice (ECJ) set out criteria for the Polish Supreme Court’s Labour Chamber to apply in order to evaluate if the Disciplinary Chamber, which PiS established to discipline Polish judges, meets EU standards for judicial independence.
Following the Labour Chamber’s conclusion that the Disciplinary Chamber does not in fact meet EU standards and all of its appointments and rulings are therefore invalid, PiS responded that the final say on the matter should rest with Poland’s Constitutional Tribunal, over which PiS has recently gained greater control. This statement amounts to a questioning of the very legitimacy of EU judicial bodies writ large. These events do not represent new or unexpected phenomena, but are rather the latest in a series of anti-democratic policies that PiS has been implementing since it came to power in 2015.
This recent culmination of anti-democratic upheavals in Poland presents significant challenges for both the US and the EU. American foreign policy under President Trump has emphasised the current state of great power competition between the democratic US and authoritarian powers of China and Russia. While there are ample historical reasons for why Poland’s democratic backsliding will not result in closer relations with Russia, there is definitely a threat of greater Chinese influence in the country, especially as China increases its investments in Poland and Central and Eastern Europe as a whole via the 17+1 format of the Belt and Road Initiative.
In the case of the EU, Poland’s democratic backsliding has been a problem for a few years, but with relatively little action taken. Despite the initial opening of an Article 7 procedure against Poland in 2017, it has become evident that the EU currently lacks the political will to enact any sanctions. Former President of the European Commission Jean-Claude Juncker admitted as much; when asked whether or not he thought that receiving EU funds should be dependent on adhering to principles of democratic governance and the rule of law, he said that he is “of the opinion that one should not do that” and that it would be “poison for the continent.” Such a tepid response to rising illiberalism within its ranks brings into question the EU’s legitimacy as a supposed bastion of liberal democratic values.
While the precarious state of Polish democracy poses problems for both the US and EU, the question then remains: what ought to be done? When it comes to Poland, the US has a significant amount of both hard and soft power leverage at its disposal. Defence cooperation is arguably the cornerstone of the US-Polish relationship, most recently demonstrated by the US’ commitment to send 1,000 additional troops to Poland in case of future Russian aggression. Additionally, despite the US’ overall popularity decline across Europe over the past few years, Poland has the most positive opinion towards the US of any EU member state, with a favourability rating of 70%.
While threatening this strategic relationship upon which Poland is so heavily dependent may seem extreme, it is actually proportional to the severity of Poland’s anti-democratic actions. Ideally the US would send a clear message to Poland that its behaviour is unacceptable for a US ally, and the popularity that it holds amongst the Polish citizenry would create enough of a political incentive to affect PiS’ behaviour.
The EU, for obvious reasons, has more direct recourses than the US for disciplining Poland. The politics of further pursuing the Article 7 process that was previously initiated against Poland would be complicated. This is due not only to the EU’s above mentioned lack of political will, but also because enacting the full punishment of Article 7, the suspension of Poland’s EU voting rights, would eventually require unanimous support of every other member state in the European Council. At that point a veto from Hungary, which has also been subjected to its own Article 7 process, would be all but guaranteed.
Despite the political complications, there are forces within the EU that have expressed a desire to sanction Poland, particularly through the withholding of EU funds. Vera Jourova, the former European Commissioner for Justice and current European Commission Vice President for Values and Transparency, has previously called for greater conditionality on rule of law matters being tied to member states receiving EU funds.
In 2017, the European Public Prosecutor’s Office (EPPO) was established to investigate and prosecute corrupt uses of EU funds, and there is a proposal backed by some within the EU to withhold funds from member states that refuse to comply with the EPPO. This idea has a lot of merit, as it not only circumvents the concern of a potential veto from another member state, but also strikes at the very heart of Poland’s self-interest.
Poland is the single largest recipient of European Structural and Investment Funds (ESIF), having raked in 86 billion euros during the 2014-2020 funding period. Additionally, France and Germany, the two largest EU member states, have expressed a desire to no longer pay into a system in which Poland benefits while it simultaneously flouts EU rules. Jeopardising the massive amount of funds that Poland receives from the EU would undoubtedly deter its government from continuing its assaults on the country’s democracy.
As the trend of democratic backsliding throughout the EU continues, Poland’s assaults on fundamental democratic values and institutions are extremely worrying. The US and EU must present a united front against the burgeoning autocrats in PiS by sending them an unequivocal message: undemocratic behaviour will not be tolerated by any close ally of the US or any EU member state, and attacks against democratic institutions will be met with political, military, and economic isolation. For the US and EU, it is in accordance with both their self-interests and fundamental values to do so.