Until recently Poland was heralded in the EU as a remarkable success story. It joined the club in 2004 and since then its status and importance were growing till 2015, as testified by the election of Poland’s former Prime Minister Donald Tusk to the post of President of European Council in 2014. When joining the EU Poland’s GDP was below 40% of the EU average, it currently nears 75% and Poland was the only EU member state that avoided the recession that followed the 2008 global economic crisis whilst its economy expanded by 25% since then. Under the former government Poland pursued a foreign policy that was marked by strengthening relations with the EU core and in particular with Germany and France and building up its position in Central European region by working closely with other members of the Visegrad Group and the Baltic States. Whilst the relationship with Russia were undermined by the Russian invasion of Ukraine until then Poland attempted a tentative rapprochement which allowed Warsaw to shade the image of a Russophobe and effectively become one of the core architects of EU’s Eastern policy.

The overriding objective of Poland’s European policy since joining the EU till 2015 was to enter the club of key member states that shape most vital decisions in the EU. Acting together with Germany and France Poland proposed a number of EU initiatives including a white paper on the development of Common Security and Defense Policy. There were several formats of the six largest EU member states in which Poland actively participated. Naturally, Warsaw’s voice would have been stronger had it adopted the Euro, but the Eurozone crisis proved a major obstacle that moved the public opinion against such a motion and made the former government overly cautious. Still whilst not being a Eurozone member state Warsaw participated in shaping the measures that resulted in the creation of the banking union.

However since the election of the populist Law and Justice government in autumn 2015 Poland’s position in the EU has steadily deteriorated leading to a permanent state of the relationship crisis that has already produced Poland’s marginalization in the EU and in its extreme incarnation may even lead to Warsaw heading for the exit door. How could this happen in such a short space of time?

Eurosceptic and populist

Whilst current Polish government is in constant argument with the EU it is important to note that a vast majority of Polish population (80-88%) continues to support the EU. In other words a Eurosceptic government rules in a pro-European country and it maintains its popularity. This paradox is possible because the EU is not at the forefront of the reasons why Law and Justice (PiS) remains popular. The arguments that take precedence in defining voters’ preferences are related to expensive social programs that Law and Justice launched such as a generous child-benefit program and the lowering of retirement age, which was risen by the former government. Essentially the current government is far more redistributionist than the former one and the main beneficiaries of its programs are often those who have either lost on the post-communist transition or have seen others gaining more and faster than themselves.

As long as Poland continues to benefit handsomely from the EU, the government is careful to maintain its declaratory support for the membership, even though some of its members, including the party President Kaczyński, harbor deeply Eurosceptic sentiments. In the meantime Law and Justice has run into conflict with the EU in several areas, in some of which no conflict even seemed possible – such as the cutting down of Poland’s historical Białowieża forest, which continues against the clear ruling of European Court of Justice.

However, the area where the conflict with the EU is of the most fundamental nature is the unconstitutionality of some of the government’s actions and its continuing violation of the rule of law. It is difficult to see a successful resolution of this conflict since Law and Justice (PiS) is not likely to cease its unconstitutional practices and its continuing assault on judicial independence in Poland. Essentially, PiS is not satisfied with winning and governing within the system that Poland adopted after the fall of communism in 1989 but it wants to change the entire system. It considers therefore the existing constitution and the independence of judiciary as the remnants of liberal democratic order that it wants to replace with the system that would solidify its political dominance, akin to the Hungarian or Turkish model.

The EU is however unwilling to accept any further erosion of the rule of law in Poland which would stand in violation of the Copenhagen criteria that Poland had to meet to start membership negotiations in the late 1990s. It therefore seems inevitable that as long as PiS is in government, Poland and the EU will be on collusion course that may result in sanctions, further marginalization of Warsaw that may eventually lead to Poland leaving the EU.

As of today the EU has limited formal instruments of influencing Warsaw or any other of its member states that would start flirting with authoritarianism. Following Warsaw’s assault on its own Constitutional Court over a year ago, the EU Commission opened a procedure of investing the rule of law in Poland. Since then there has been an escalation of conflict with the Commission that presented Warsaw with its recommendations regarding the Constitutional Court, which PiS staffed with its appointees bypassing constitutional procedures. Warsaw refused to adopt the recommendations and accused the Commission of interfering in its domestic affairs. This standoff has been going on for over a year with no sight of compromise. Moreover, over a month ago PiS voted in set of laws that would strip the Supreme Court of its independence and would have staffed it with political appointees. This led to wide protests across the country. Most of the proposed laws were than vetoed by President Duda (producing first rift between the PiS-backed President and the party) but a law on increasing prosecutor general’s interference into the local courts was signed in and will become the new law.

The Commission made it clear that the new law is violating judicial independence and it will press now with putting Warsaw on notice. It is however unclear what in actual fact the Commission can do should Warsaw continue to defy its recommendations. Theoretically, at the end of the procedure Commission can recommend the triggering of article 7 that would strip Warsaw off its right to vote. However, such a measure needs to be adopted by consensus with no other member state objecting and as of now Hungary (another violator of the rule of law) has already said that it would veto the triggering of article 7 against Poland.

Future options

Defending democratic standards is an unchartered territory for the EU and presents it with one of most serious tests. There is no indication that PiS will back down from its path of destroying liberal-democratic institutions in Poland. In fact, the party chairman, Mr Kaczynski, has already said that after ‘reforming’ the judiciary, the party will move on to ‘de-concentrate’ Polish media. There is little doubt that in actual fact PiS wants to hit at privately-owned media that have been critical of its rule. It is increasingly likely that the Commission will be therefore forced to asked member states to trigger article 7 and strip Poland off its voting rights. Should this indeed happen, it may play out in the three following ways:

• Member states fail to reach consensus because of the Hungarian veto. Article 7 is not applied to Poland but relations with the Commission and other member states are deteriorating. Poland is therefore penalized in other ways. Commission becomes inflexible in dealing with any other issue in which there is a conflict with Warsaw. This is already the case with the conflict about the historical Białowieża forest, which results in financial penalties against Warsaw. Warsaw may expect a far less generous deal for itself in the division of the next EU budget. Other member states will increasingly exclude Warsaw from various diplomatic gatherings at which important decisions are prepared. Warsaw is already excluded from the meetings of the 6 biggest member states, the Weimar Group (Warsaw-Paris-Berlin) no longer meets, in the Visegrad Group Warsaw’s importance is visibly decreasing.
• Hungary is persuaded to vote in favor of triggering article 7. As indicated by Commission President, his relations with Victor Orban are in fact cordial. Hungary may also expect that its lone veto would lead other member states to consider a scenario in which they can extend article 7 to both Hungary and Poland. Although clearly a populist, there is no doubt that the Hungarian leader Victor Orban is also a pragmatist who knows how to play his game in Brussels. Despite a clear objection from Warsaw, Orban joined 26 other member states to vote in favor or extending Donald Tusk’s tenure as the European Council President. Should that scenario materialized Warsaw’s isolation in the EU would become total, which would be likely to result in PiS launching a campaign in favor of leaving the EU.
• Following German elections (September 2017) Berlin and Paris are launching a major remaking of the EU focused around the Eurozone. Other non-Eurozone member states in Central Europe (Czech Republic and Hungary) are scrambling in to join the Euro as soon as possible. Poland is against and stays isolated. Whilst article 7 is not triggered in reality Poland remains isolated and with no influence.

None of these scenarios resolves tension in EU-Poland relations, which are likely to continue for the foreseeable future. There is no doubt that Poland is currently missing its historical chance to become one of the engines of the EU. If the current standoff continues (and it is difficult to see how it would not) at best Poland would remain an exotic pariah state that bangs the table but is not listened to. However, it is also possible that PiS will decide that Poland’s EU membership is an obstacle that it would like to remove.

The article was first published in Es Global.