Elections in Poland, with democracy hanging in the balance
In less than two weeks, Poland's elections may decide its future in the EU. The EU has been the guardian of democracy and the rule of law in post-Communist Poland
[DemocracySOS welcomes back Dr. Berit Ebert, who is on the faculty of Bard College in Berlin. Dr. Ebert specializes in European Union law with a focus on gender equality, European integration, subnational influence on policy and law-making in the EU, and theories of justice. In addition, Dr. Ebert is the Director of Public Programs and Strategic Initiatives at Bard College Berlin.]
In less than two weeks on October 15, the next parliamentary elections in Poland may decide Poland's future in the European Union and its democratic standing. On this occasion, the ongoing attacks from the national conservative party Prawo i Sprawiedliwość’s (PiS, Law and Justice) on the principles of civil rights, gender equality and judicial independence will be put to a vote of the Polish people.
The party’s right-wing rule since 2015 has led to deep societal divisions resulting from increasingly discriminatory and controversial policies. In addition, PiS leaders’ harsh rhetoric has polarized society, with some Poles believing it has produced a poisonous climate that resulted in the assassination of the mayor of Gdansk, who was often a target of far right political attacks. Furthermore, one of Poland’s highest courts, the Polish Constitutional Tribunal led by Julia Przyłębska, a close ally of PiS chairman Jarosław Kaczyński, ruled in October 2021 that the European Union’s drive to establish ”an ever closer union among the peoples of Europe,” based on EU law and through the judicial interpretations by the Court of Justice of the European Union (CJEU), was a threat to Poland’s existence “as a sovereign and democratic state.” (K3/21)
An active Polish opposition has been standing up to the authoritarian rule and is mobilizing for the elections on Oct 15. In the face of the government’s wielding of state power in a manner compared to Hungary’s Viktor Orban, the opposition has depended on a welcome ally in the European Union. The EU’s many institutions – executive, judicial, legislative and financial – have acted as a check against the Polish government’s extremes.
The EU’s influence over its 27 member states extends into at least four dimensions of governance: judicial oversight, budgetary oversight, administrative enforcement and the fostering of a robust civil society. I will examine each of these in turn.
How the EU is checking the Polish government – judicial oversight: preliminary rulings
An effective helping hand from the EU comes in a number of forms. One of these is providing judicial oversight according to the framework established by EU law. One tool is the use of preliminary rulings regarding the interpretation of EU law. When a case is brought before a national court, that court may submit questions to the EU’s Court of Justice (CJEU) and ask for its opinion. Between 2004 and 2018, under previous Polish governments, Polish courts made 158 requests to the CJEU for preliminary rulings. This represents the second-highest number of requests (after Hungary) from Member States that joined the Union after 2004.
One example of a preliminary ruling that shows the intersection of the rule of law and gender equality might be illustrative. On July 12, 2017, a law from the PiS government, which was aimed at forcing open some vacancies on the Supreme Court and other courts so the government could pack the courts with its own judges, lowered the mandatory retirement age of ordinary court judges and public prosecutors as well as the age for early retirement of Supreme Court judges from 70 to 60 for women and to 65 for men. On April 3, 2018, another law lowered the retirement age to 65 for all Supreme Court judges, regardless of gender. A judge could apply for prolongation, but that was granted solely at the discretion of the President of Poland without being subject to judicial review.
Consequently 27 of 72 judges were forced to leave the Supreme Court before their six-year term in office officially ended. In addition, the government forced through a change in the composition of two Polish legal entities, the National Council of the Judiciary and the Disciplinary Chamber, which made the judicial branch dependent on the executive branch. This change also was aimed at reducing the number of female judges, who were often perceived as more critical of the regime, thereby establishing a more patriarchal system of control. In 2019, the European Court of Justice halted these laws in its rulings on June 24 (C-619/18) and November 5 (C-192/18) – both infringement procedures were initiated by the European Commission, the EU’s executive arm
In addition, despite the danger of being subjected to disciplinary proceedings by the President and Minister of Justice, the then-president of the Polish Supreme Court, Małgorzata Gersdorf, who under the new regulations had reached retirement age, along with other judges at all levels, challenged the judicial reform by initiating requests for preliminary rulings with the CJEU. Several Polish judges of the Supreme Court – the highest administrative tribunal in Poland – launched a full-scale insurrection against the government, challenging the violation of the rule of law and gender discrimination expressed in the different retirement ages by referring the cases to the CJEU in Luxembourg. Lower-instance courts followed suit (C-487/19; C-508/19; C-522/18; C-537/18; C-558/18 and C-563/18; C-585/18; C-623/18; C-624/18; C-668/18; C-625/18; C-824/18). Some expressed their well-founded fear of disciplinary proceedings and even termination if they delivered a judgement in opposition to the government (C-558/18 and C-563/18).
Poland’s national courts and individuals also were able to use the European infringement procedures to challenge national law. They knew that both the European Commission and the CJEU provided a potential avenue for redress. Thus, the binding dialogue between national courts and the CJEU has provided those who advocate for equality and the rule of law with the means to challenge their non-compliant governments in a manner that would have been inconceivable without EU mechanisms.
The European Commission: administrative enforcement of Article 7 and infringement procedures
As part of its legal oversight portfolio, the executive branch of the EU, the European Commission, has been publishing annual rule of law reports on each Member State since 2020. It can also activate the Rule of Law Framework (adopted in 2014) and enter into a dialogue process with non-compliant Member States, and advise them on how to rectify their rule-of-law breaches.
In the case of Poland, it was activated in 2016 and for the first time in the history of the EU. Nevertheless, more Polish repressive laws followed. Consequently this dialogue procedure triggered the so-called Article 7 procedure, whose first step enables the Council of the European Union to determine if there was a clear and serious breach of the values referred to in Article 2 of the Treaty on European Union (Art 7(1) TEU). In the case of Poland, the Commission demanded on December 20, 2017, at the behest of the European Parliament, that the Council should launch the respective proceedings. Five hearings with the Polish authorities were held until May 2022.
A second step (Art. 7(2) TEU) of the Article 7 procedure allows for sanctions and financial penalties. While there is considerable support within EU members states for such an action in regards to Poland, to do so requires a unanimous decision by the European Council (which is composed of the heads of state and government of all 27 Member States, and is a different body than the aforementioned Council of the European Union). With other EU member states like Hungary also displaying authoritarian tendencies and threatened with sanctions, reaching unanimity is virtually impossible.
Nevertheless, the Commission’s efforts to initiate infringement procedures have proved to be a powerful enforcement mechanism. For example, on March 21, 2021, it referred Poland to the CJEU (C-204/21) for violation of the rule of law, especially targeting Poland’s establishment in 2017 of a new body called the Disciplinary Chamber. This body has the power to end judges’ terms in office as a consequence of professional misconduct because of the adoption of a judicial decision. But the Disciplinary Chamber consisted only of newly appointed judges chosen by the National Council of the Judiciary (Krajowa Rada Sądownictwa, KRS), a body that cannot be considered independent as 23 of its 25 members were appointed by the PiS government.
On July 14, 2021, the CJEU suspended of the Disciplinary Chamber. In response, the Polish Constitutional Tribunal launched an anti-EU crisis by ruling that the provisions of the EU Treaties were incompatible with the Polish Constitution, expressly challenging the primacy of EU law (judgements P7/20 on July 14, 2021 and K3/21 on October 7, 2021). But the European Commission and the CJEU struck back.
Based on the CJEU’s ruling that Poland did not sufficiently implement the EU’s disciplinary measures, on October 27, 2021 the Commission imposed a daily fine of €1 million on Poland. On July 15, 2022, Polish authorities responded to the EU by dissolving the Disciplinary Chamber and replacing it with its own Professional Liability Chamber that claimed the right to initiate criminal proceedings against judges and to prohibit national courts from verifying compliance with the requirements of EU law.
In the same vein, the European Commission has determined that the legal system established by the PiS regime deprives individuals of their right to effective judicial protection. It has warned the government that the Polish Constitutional Tribunal no longer meets the requirements of an independent and impartial court, even as it violates the general principles of autonomy, primacy, effectiveness, and the uniform application of Union law (Art 19 (1) Treaty on European Union, TEU). Thus, last February, the European Commission referred another case of Poland to the EU Court of Justice. Finally, the CJEU issued its decisive ruling in the landmark case 204/21 on June 5, 2023, confirming that the Polish judicial reform violated EU law.
The legal and administrative disputes with Brussels pose a challenge for the Polish government. Not only is the EU an agent for upholding democratic values, civil rights and the rule of law, but it also is having a significant financial impact on Poland that has the potential to lead to political change in the upcoming parliamentary elections. Certainly the political opposition is trying to turn the government’s obstruction and divisiveness into a campaign issue.
Budgetary interventions by the European Commission
Another major pressure point that the EU has applied to Poland is its power over the allocation of the EU’s budget and the distribution of EU funds. Regulation 2020/2092 to protect the Union’s budget makes the dispensation of EU funds conditional on the adherence of the rule of law.
In June 2022, the Partnership Agreement between the European Commission and Poland covering the period from 2021 to 2027 designated €76.5 billion of the EU’s €392 billion budget to Poland. Of all 27 EU member states, the country is the largest beneficiary of these funds. The funds are Poland’s main source of funding for local and regional development initiatives. A significant portion of the European Social Fund Plus (€ 12.9 billion for Poland), which includes gender equality as one of its objectives, is allocated to further the participation of women in the labor market and the provision of childcare services. The disbursement of all cohesion funds is made conditional on the fulfillment of the provisions of the EU Charter of Fundamental Rights, which includes the equality between men and women (Art. 23) and emphasize the rule of law.
However, Poland currently neither fulfils the rule of law requirement nor does it adhere to the principle of gender equality. Hence, despite the Polish governments’ public announcement of the European funds, their actual arrival is at risk. This budget insecurity has fueled much political opposition. In 2021, the main centrist and left-wing opposition parties and several civil society groups – among them the Committee for the Defense of Democracy (Komitet Obrony Demokracji, KOD), the Citizens of the Republic (Obywatele RP), and the All-Poland Women's Strike – signed an agreement proposing measures to roll back the government’s judicial reform, to restore the rule of law, and to end the dispute with the European Union. This Agreement for the Rule of Law (Porozumienie dla Praworządności) shows that Union measures can impact national developments by providing information and legal recourse, and ultimately keeping alive the national debate about equal rights and political participation.
EU influence: widening the political capacity and opportunity for civil society
Another one of the innovations of the EU, unprecedented in modern European history, has been to bring forth a political sphere beyond the nation state that nurtures civil society and non-governmental institutions to grow and influence both the European as well as the national and subnational discourses.
A few examples: In 1990, the European Women’s Lobby, an umbrella institution of women’s associations across the Member States of the EU, was founded. Located in Brussels, it represents more than 2,000 women’s rights organizations. Transgender Europe (TGEU), established in 2005 in Vienna, currently has 145 member organizations and 255 individual members in 44 countries across Europe and Central Asia. The Brussels-based organization No Means No aims at preventing violence against women and unites organizations from Belgium, France, Germany, and Poland.
On the national level, political opposition has been visibly active all over Poland, despite the danger of facing continuous public defamation by the ruling party. Equality marches are taking place in cities of all sizes. The mayor of Warsaw signed a declaration with a commitment to uphold LGBTQIA+ rights. On June 19, 2021, the mayor led an equality march in Warsaw with roughly 20,000 participants. Activist groups such as Stop Bzdurom (Stop the Madness) oppose the government’s systematic defamation of the LGBTQAI+ community. Aborcyjni Dreamteam informs women about having an abortion. The Ogólnopolski Strajk Kobiet (All-Poland Women's Strike) was founded in opposition to legislation tightening the abortion laws in 2016, and continues to protest the near-total abortion ban.
Article 2 of the EU’s founding Lisbon Treaty specifies, “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” The Polish gender movement and the judiciary have gained an extraordinary tool for agency and action because of such European provisions. Contrary to the current claim of Poland’s conservative government, democracy and the rule of law do in fact form core principles of the Polish constitution.
Poland has a rich pro-democracy history and culture
Initially following the fall of Soviet communism in 1989, Poland was one of the most enthusiastic new members of the EU under successive center-right governments. The country has had a long off and on history of democratic governance stretching back centuries. Poland was the first country in Europe to adopt a formal constitution on May 3, 1791, replacing the feudal system with a constitutional monarchy based on the separation of powers and popular sovereignty. In the post-World War 2 era under Communist rule, such ideals as the rights of the individual were antithetical to the legal doctrine of the regime, which understood rights as a collective privilege granted by the government and not as a consequence of individual freedom per se.
Poland’s constitution today explicitly cites the unifying notion of the rights of the individual and emphasizes human commonalties. The constitutional preamble expresses the noblest desire “to guarantee the rights of the citizens for all time“ and reflects on its troubled past, stating, “Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland.” The current constitution places Poland back in the legal traditions of other European countries as part of a wider European framework of individual freedoms. It has much in common with EU law and culture, which places the human individual at the center of its vision.
Ironically, it is the Polish government today that aims at doing away with the principles of its own democratic constitution and its rich democratic history. The present government’s positions are in complete opposition to the constitutional narrative. Prior to the current regime, a landmark judgement (K32/09) in 2010 of Poland’s Constitutional Tribunal did not consider EU membership a loss of national sovereignty but rather a testimony to that very principle, expressing the Polish Republic’s ability to act as a sovereign state, choosing its own international commitments. It is the Polish people, as part of a wider European understanding, that exercise their sovereignty when delegating competences to the Union. Polish does not exclude European. It is a complementary relationship that constitutes a rebuttal to the recent actions of the governing PiS/Law and Justice Party and the jurisprudence of its biased Polish Constitutional Tribunal.
For the upcoming elections, the opposition parties Civic Coalition (KO), Polish People’s Party (PSL), the Left (Lewica), and Polska 2050 (P2050) have formed an electoral alliance. The latest opinion polls show a very tight election. Poland’s proponents of democracy, the rule of law, civil rights and gender equality hope to partner with the EU to protect the country’s democratic system. If the opposition prevails, Poland’s anti-democratic judicial reforms might be depicted, in the words of constitutional scholars Miroslaw and Katarzyna Granat, as a temporary period of “constitutional violence” in the grand scheme of a republican history, where the previous Communist authoritarians and the current rightwing regime represent historical interludes.
Under the helpful guidelines and watchful oversight of EU laws, institutions and procedures, the hope is that the fostering of civil society and individual agency will create the deliberative openings and political spaces needed as part of Poland’s transition to the core principles of democratic government.
Berit Ebert
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