December 2021

The battle lines on the Polish domestic front have been clearly drawn. The most recent attempt by the executive to undermine the foundations of the European legal order by turning yet again to the discredited cohort formerly known as ‘the Constitutional Tribunal’, and the ‘decision’ by the latter that basically declares Poland’s unwillingness to continue as an EU Member State, speak volumes about how far the new doctrine has come since 2015 and how powerful the justification is that it provides. The dramatic process of exiting the European public space has been taken to another level of hopelessness and cynicism with the finding by the same cohort that, more or less, art. 6 of the European Convention on Human Rights is incompatible with the Polish Constitution. All this has materialised with relentless abuse and instrumentalisation of the constitutional text and dishonest manipulation of European law. However, when one tries to see for a moment beyond the irresistible pull of “here and now”, a point of no return might indeed have been reached …

Is it bad or … very bad?

The Spanish political philosopher Juan Linz has famously argued (for his and A. Stepan’s analysis, see here) that democracy is not consolidated until it becomes ‘the only game in town’. For this to be so, conditions must be met at three different levels: behaviourally – when every political actor accepts the legitimacy of the system; attitudinally – when citizens identify with the existing constitutional order; and constitutionally – when any change to the existing order can take place only through due process and within a binding framework. When we consider the values that unite people in Poland, we need to remind ourselves that, after 1989, the country never became a consolidated democracy. A large proportion of the Polish population is unaware of what the 1997 Constitution contains. For Poland, the question of how to act in a community of countries that is moving towards integration was by no means straightforward. Our (speaking as a Polish citizen) failure to use EU membership to raise standards led to the breakdown of the paradigm that had shaped the revolutions of 1989: the idea that liberalisation and democratisation were irreversible. Consequently, in 2015, we went into reverse. If we talk about how to rebuild the rule of law, we can take an institutional perspective, but if we continue to focus exclusively on the institutional consolidation of Polish democracy, we will repeat the error made in 1989. Generating a constitutional context requires far more than adding a few institutions or creating new procedures. We therefore also need a civic perspective. This means explaining to citizens that the Constitution is more than a document comprised of dry text – it is also there to protect them.

I call it the ‘constitutional path’ of moving from text to the Constitution as a lived experience. This is missing in the current political setting and, most tragically, will not be remedied by simply waving a magic wand once the current majority loses its grip on power. What must be studied and pondered is the depth and the severity of the post-2015 rejection of all the liberal paradigms that reigned supreme after 1989. This time the omissions of the past generation will not simply disappear with yet another institutional overhaul. Whatever and whoever comes after the Law and Justice Party (PiS), we must be clear that there is no going back to pre-2015 politics. Unfortunately, since 2015, the opposition does not seem to have grasped this and internalised the fact that the paradigms have indeed changed. Instead of finding a new narrative and communicating it to those appalled by the current politics, they continue to squabble among themselves, much to the delight of Kaczyński and his henchmen.

So, this is indeed very bad.    

EU to the rescue: Bad or … very bad?

In Poland, we seem to have forgotten how our internal debate about fundamental values translates into the European setting. We also tend to underestimate our unfamiliarity with the way the rule of law functions in other democratically governed states. Few remember that, when the Paris Treaty was signed in 1951, the notion of a community of European states was underpinned by the shared assumption of certain constitutional essentials. These were what had led the signatories to unite, despite their differences. They were not expressed in the form of a text but were instead tenets emerging from a legal culture shaken to its core by the experience of totalitarianism and total war. But now Poland is claiming that ‘the rule of law’ means something different, and that reaching an understanding with Europe on the independence of the judiciary is therefore impossible. Combining core principles established by other EU Member States with a ‘Polish definition’ of the Union and its values was bound to lead to a clash.

Why, then, has the EU only now begun to penalise Poland’s behaviour that started in 2015, when PiS returned to power?

The European Coal and Steel Community, and the European institutions that grew from it, all acclaimed the triumph of liberal democracy. In 1951, no one could have predicted that any individual country might call into question the liberal foundations of the post-war European order. Now, Poland does so on a daily basis. The premise on which the post-war European order was built is failing to stand the test of time. We appear to be dealing with a fatal ‘constitutional design error’, which becomes dangerously combustible when coupled with the lack of imagination and spinelessness of the European leaders when facing (or rather refusing to face…) the emerging autocracy in their midst. Short term political gains and calculations take over the long-term commitment to the European project. Today, the European constitutional tragedy sees the Commission becoming part of the problem, rather than a solution, as it is unable to defend the rule of law and it is slowly losing its own credibility as the guardian of the Treaties. POLEXIT meets supranational E(U)EXIT. The Union stands hollowed out and bereft of any guiding principles other than the internal market. Welcome to EU politics in A.D. 2021, where cold Polish December meets helpless and disengaged Brussels December.   

Of all the European institutions, the Court of Justice of the EU has clearly understood that we are dealing here with not yet another crisis of governance, but with a crisis of the very essentials that brought and keep Member States together. The CJEU ruling on Poland’s judicial ‘reforms’ of 19 November 2019 and 8 April 2020 (to name but two) were a response to attacks on the preliminary ruling procedure, the process by which the CJEU hands down rulings to Member States and a bedrock of European integration. The ruling was also a response to disciplinary proceedings against judges who implement European law at home, and to gestures purporting to protect the autonomy (“sovereignty” in the parlance of the Polish government) of the Polish Supreme Court. More recently, the blatant and continuous refusal by Poland to comply with interim decisions of the CJEU left the latter no choice but to impose unprecedented penalty payments.

In the Union we (still) trust?

How and why does the language continue to matter here?

The EU, even with all its vices, frustrating inertia, lack of vision, and debilitating indecision, is not forcing Poland to do anything. It is merely implementing (imperfectly) the provisions of the Accession Treaty that entered into force in 2004 and which Poland has voluntarily accepted to be bound by. The European courts are independent and impartial arbiters that help settle disputes that individual states are unable to resolve for themselves. Confidence in this process has been a condition of Poland’s membership of the Union from the start. All states are bound by European law equally and unconditionally, not just when it suits them. The Court is an unusually egalitarian space. The language of legal principles controls the impulses to promote political interests. This explains why the Court makes PiS nervous: in the courtroom it is the power of argument, not arguments of power, that prevails. Such an argumentative shift was emblematic of the post-war settlement. The dream of the Founding Fathers was that law, not war, would become the device to reconcile and frame the diverse interests of Member States and ensure that the ‘never again’ mantra would indeed be etched in the fabric of the European continent. When one Member States fails to fulfil its obligations, the others are not permitted to take unilateral action. They cannot close their borders and refuse entry to the maverick state’s citizens or its goods. Instead, Member States must follow due process, wait for a ruling, and then adhere to it. This is because, when joining the Union, all prospective Member States sign an agreement with key stipulations concerning recognition of the Court’s jurisdiction. For this commitment to be credible, it is stipulated that respect for the Court’s powers and its rulings works ex post (after the judgement has been delivered) as well as ex ante and covers prospective judgments. It is the respect for the law in art. 19 TEU, as interpreted by the Court, that sets out the minimum and non-negotiable element of the consensus binding on all the parties.  Only then does the common market and the political community make sense. Rejecting this strikes at the very core of integration, something which European leaders – shockingly after 6 years of dealing with PiS – do not seem (or want) to understand. Therefore, the disengaged Brussels must be reminded that language and a certain ethos of Europe must still matter, because if it no longer does, then what else is left?  

POLEXIT. From bad to worse?

Attacks on the supranational courts marginalise Poland in the Union and may ultimately push the country out. If that were to happen, Polish citizens would once again become second-class citizens in Europe, deprived of the protection that European law and the Court give to nationals of other Member States. POLEXIT would mean a return to a world in which Polish citizens live in the reflected glory of the state, while remaining obedient to its will. European law places the citizens of Europe in the overlap between two systems. They no longer belong exclusively to territories delineated by the borders of their own nation state. The spirit of European integration liberates EU citizens from constrictions imposed by an all-powerful national state, but it is also necessarily based on compliance with the Court’s rulings. There is a fundamental contradiction between the European vision and the doctrine by which the PiS party lives. Europe promotes a culture of restraint; PiS holds that citizens must live in the shadow of a constitution of fear. The EU opens new possibilities; PiS pushes citizens into the confines of a state structure. European law offers a real chance of challenging the state; PiS would prefer to see its EU commitments as a worthless piece of paper. For PiS, a ‘good’ citizen is one who can be controlled – one who is docile and utterly trusting of the state.

All this may represent indeed the beginnings of POLEXIT. Poland is placing itself outside the Union and losing whatever little ‘legal credibility’ it has left. There can be just one place for a country that wants to play only for itself and underlines its uniqueness compared to others, and that is outside the Community. Formally speaking Poland might remain in, since there is no procedure in place to expel a Member State that violates the foundations of EU law. In the real world, however, its membership and presence in the EU have already been relegated to a non-factor. 

Decision time

Who would have imagined that 17 years after Poland’s accession, people would need to be reminded of all these things? As evidenced by the lawlessness that the fake Constitutional Tribunal stands for, and the illegality and constitutional oppression over which it presides, we are living today in a country without checks and balances, in which the state can do anything. On top of this, we are also dealing with an epidemiological crisis which is being exploited by the government to further consolidate power and limit civil rights. Its policies are bearing fruit at the worst possible moment for Europe, ourselves, and our freedoms. Poland’s membership of the Union is no certainty. The freedoms that EU membership still gives us –  to travel, work, shop, or take holidays – may not be ours indefinitely. We must stop thinking of ourselves as an entitled, chosen nation. Or have we really forgotten that it was only 16 years ago that we voluntarily embraced the Union? If we turn our backs on the community and our own obligations stemming from EU membership, we must also expect to lose the opportunities and the rights that come with it. In Poland, public discussion on Europe as a community of nations, and on the values which the peoples and states of the continent aspire to share, must become an urgent priority. The constitutional tragedy that we have witnessed over the past six years must serve as a warning about failure to take civic action. Let us reflect seriously and critically on Europe, its vocation, and the future. Let us vote for it, and for Poland’s contribution to and participation in it. Above all, let us understand the dire and far-reaching consequences of the current government’s actions.

When laws and institutions come to serve politics, rather than holding power in check, a cornerstone of the post-war European order is lost. Let us thus be mindful of what is at stake. Do we stay in the European system governed by the rule of law to which the generation of my parents and grandparents aspired after WWII and honour the commitments voluntarily accepted in 2004? Or do we opt for POLEXIT – with no going back? The choice is ours.

This analysis is the modified version of ‘On the rubbles of the rule of law’ that first appeared on EUROZINE  
Professor Tomasz Tadeusz Koncewicz is Director of the Department of European and Comparative Law, University of Gdańsk; Member of the Council of the Jean Monnet Foundation, Lausanne; 2021 – 2022 Visiting Professor, European University Institute, Florence; and Principal Investigator at ‘Reconciling Europe with its citizens through democracy and rule of law’ (RECONNECT).
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