New approaches to upholding democratic values in Poland

Opinion piece (Carnegie Europe)
05 October 2018

For almost three years, Poland has backtracked on the rule of law. The EU needs a comprehensive strategy to make the Polish public more resilient to the government’s populist narrative.

For almost three years, EU institutions and member states have debated how to address backtracking on the rule of law in Poland. This discussion has focused on deploying punitive measures against the Polish government, a course that could ultimately lead to suspending not only EU funds to Poland but also Poland’s voting rights in the Council of the European Union. Yet in order to talk Warsaw out of its defiance, the EU will need to develop a comprehensive strategy to help make the Polish public more resilient to the government’s populist narrative.

Beyond Punitive Legal Measures

Since the Law and Justice Party (Prawo i Sprawiedliwość; PiS) came to power in Poland in 2015, it has increased its control over public media and the courts. Recently, the party made headlines when it attempted to change the makeup of the Polish Supreme Court, which among other things adjudicates on the validity of parliamentary, presidential, and European elections. PiS claims that the public does not hold judges in high regard because many of them allegedly adjudicated in communist times, and it argues that its reforms will help draw a line under Poland’s murky past and rebuild public trust in the Polish judiciary. The EU, however, has not accepted this narrative and is concerned that the PiS judicial reforms are part of a wider attempt to weaken democratic checks and balances. Indeed, the Economist Democracy Index, which has looked into the state of democracy worldwide since 2006, has pointed to the deterioration of democratic indicators such as media freedom in Poland.

The European Commission has tried to talk the Polish government out of taking steps that are widely seen as undermining the rule of law, and which violate the EU values that Poland accepted upon its accession in 2004. At the start of 2016, the commission launched a  dialogue with the Polish government to assess the situation. When these negotiations failed, the commission triggered Article 7 of the Treaty on European Union (Article 7 TEU), which allows the EU to suspend certain rights from a member state that violates the EU’s founding values, including the rule of law. This act could potentially lead to the suspension of Poland’s voting rights in the Council of the European Union. It is unlikely, however, that the other EU member states will unanimously back the commission’s efforts to punish Warsaw. The commission therefore decided to launch infringement procedures against the Polish government, hoping that legal pressure would help bring PiS to heel.1 The EU also has considered using financial pressure to counter the present negative trends in Poland. The country is a net beneficiary of the EU budget, and it could be in trouble if member states support the commission’s proposal from May 2018, which provides that from 2021 onward the commission would be able to suspend EU payments to member states that undermine judicial independence (unless a qualified majority of member states explicitly reject this decision).

Nevertheless, the commission will fail to restore the rule of law in Poland if it sticks only to these punitive instruments. It will have to complement them with a positive set of measures to ensure that the Polish public understands the EU’s motives for intervening. Poles are pro-European, but they are vulnerable to the PiS narrative that Brussels has no right to tell Warsaw what to do. After the commission launched Article 7 TEU, 43 percent of Poles thought that triggering it was unjustified, 38 percent thought that it was justified, and 19 percent were undecided. Poles also are split on whether the European Court of Justice (ECJ) should weigh in. Fifty-four percent of Poles think that the ECJ should stop judicial reforms if it concludes that Warsaw has violated EU law, but more than 40 percent disagree—even though Polish courts are considered to be EU courts when they apply EU law, and so member states are obliged to ensure the independence of their national judiciary.

If the commission does not help to increase public awareness of Poland’s obligations as an EU member state, its actions against Warsaw risk provoking a public backlash. After Poland joined the EU, political elites portrayed membership mainly as a source of endless benefits for Poles—including free movement of workers to other EU countries, passport-free travel within the EU, and EU funds for infrastructure development—rather than as a community of law and values. Poland’s own commitments to the EU were pushed into the background in public discourse. This messaging has played into PiS’s hands; for example, the party claimed that the commission’s intervention in Poland is driven by its willingness to punish Warsaw for refusing to accept refugees. The EU will have to counter this toxic domestic political narrative if it is to have any hope of asserting its authority in the eyes of the Polish electorate.

Civil Society Neglected

Civil society organizations (CSOs) in Poland have tried to set the record straight and support the rule of law. One group, Wolne Sądy (Free Courts), which is run pro bono by a handful of lawyers, has distributed short videos in which Polish celebrities explain the importance of upholding the Polish constitution and EU law. Such videos are more likely to reach and attract younger and less-educated Poles—groups that are attracted by PiS’s populist narrative.

Other CSOs, such as Akcja Demokracja (Action Democracy), have encouraged public debate about the rule of law by organizing and coordinating public protests against controversial legal changes. Akcja Demokracja also has provided an internet platform for citizens who want to express dissent online, rather than take to the streets. The online platform hosted a petition that urged the commission to launch legal action against changes to Poland’s Supreme Court law. Other long-established CSOs, such as the Helsinki Foundation for Human Rights and the Stefan Batory Foundation, have held public debates and written extensively about the government’s democratic backsliding.

The Polish government, meanwhile, has found subtle ways of stifling CSOs’ influence. For instance, it has reduced the time for public consultations over its legislative process, making it difficult for CSOs to submit feedback on drafting laws or monitor law-making. Between November 2017 and May 2018, the Polish government allocated on average only thirteen days for consultations over draft legislation. This is often insufficient time for smaller organizations to study draft legislation and formulate comments. At times, the government has even bypassed the obligation to hold consultations by pushing through its reforms as private members’ bills.

The Polish government has also cut funding for CSO activities that go against the PiS’s narrative or policies. It has, for example, nullified a tendering process for projects to support the integration of migrants and refugees; and abruptly terminated cooperation with a foundation that fights discrimination and violence based on gender, sexual orientation, race, and ethnicity. In 2017, the ruling party also centralized management of government (and potentially EU) funds in the hands of the newly established National Institute of Freedom–Centre for the Development of Civil Society, which in practice will be overseen by the Polish deputy prime minister. As the institute is still new, there is little evidence as to whether it will favor some nongovernmental organizations over others.

But in light of the Polish government’s track record of following Hungary’s example, this risk cannot be excluded. Under conservative Prime Minister Viktor Orbán’s government, Hungary established the National Cooperation Fund to financially support CSOs; however, this fund is reported to have primarily supported organizations broadly sympathetic to the government’s thinking. In a similar fashion, PiS has used Polish public media to discredit nongovernmental organizations that have been vocal about the government’s democratic backsliding.

Despite the challenges ahead for Poland’s CSOs, the European Commission has focused almost exclusively on the issue of independent courts in its dispute with Warsaw. This is disappointing: together with independent courts and media, CSOs perform an important role in holding EU governments to account. The commission may think that it does not have a strong legal basis to pick another fight with Warsaw. In 2017, after Hungary imposed special registration and tax hurdles on CSOs that receive foreign funding, the commission took legal action against Budapest for undermining the free movement of EU capital—one of the four freedoms of the single market. But it cannot take similar steps against Warsaw; PiS’s actions against CSOs may be a point of concern for the commission, but to date the Polish government does not seem to be violating any specific EU directive or regulation.

The EU as a whole, however, needs to understand that democratic backsliding by one of its own members might be one of the greatest challenges to the European project. Populists are not only thriving in Central Europe but are now in power in Italy and Austria, and breathing down the necks of mainstream parties in northern member states. The anti-EU rhetoric that these populist parties often employ will only intensify in the run-up to the 2019 European Parliament elections. A purely legalistic approach to democratic backsliding will not make the problem go away; populists have learned how to comply with ECJ verdicts without conceding the main gist of their policies. When the ECJ ruled that Hungary violated EU law by forcing its judges into early retirement, Viktor Orbán settled the case by compensating the affected judges, rather than reinstating them.

To increase support for its position, the EU needs to change its tactics and complement its toolkit with greater support for CSOs that promote democratic values and increase public knowledge about the European project on the ground. According to the EU treaties, member states have control over their own education policies, and the EU can only support member states in their endeavors. But for domestic reasons, some governments may be reluctant to develop policies that improve public understanding of the EU. The European Commission should take steps that could make the public more resilient in the face of anti-EU populist narratives, encourage more support for the EU, and make defiant governments reconsider actions that violate the letter and spirit of the EU’s collective values.

A Better Civil Society Strategy

First, the EU needs to spend more money on supporting democracy within the EU. As part of a recent democracy-promoting initiative, the European Commission wants to set up a Rights and Values Programme that would spend around €642 million to protect and promote EU values in the period 2021–2027. However, this effort falls far short of addressing the populist challenge. In its opinion on the program, the Stefan Batory Foundation pointed out that the funding proposed for the program over a seven-year period is a fraction of the amount that the EU spends on democracy promotion abroad (approximately €2 billion in the current multiannual financial perspective, according to the foundation). Moreover, according to the commission’s proposal, EU-based CSOs will have to compete for program funding with a wide range of actors, including for-profit organizations and nongovernmental organizations from outside the EU.

The commission may think that a more generous program would not pass the scrutiny of member states, which together with the European Parliament have the final say on the EU budget for 2021–2027. EU capitals that currently have their own problems with the rule of law will be reluctant to spend more money on CSOs that challenge their policies. Other member states, such as the EU’s net contributors, might also be inclined to make further cuts to the Rights and Values Programme, redirecting the budget to their own priorities.

Yet the long-term implications of democratic backsliding by one of the EU’s own members would cost the EU more than the money recouped from cuts. Failure to respect the rule of law threatens the integrity of the single market, which is estimated to have produced a €233 billion increase in the EU’s gross domestic product between 1992 and 2006. Over the years, single market cooperation has relied on mutual trust in the member states’ ability and willingness to apply and enforce the EU’s rulebook. A member state that undermines the independence of its own courts damages this trust and challenges the entire arrangement.

Second, the EU needs to be more strategic about which activities it funds and make sure that its money does not fall into the wrong hands. Current EU programs designed to promote EU values and democratic civil society focus on the values outlined in Article 2 TEU.2 Yet even though these programs cover some activities implementing EU legislation and policy in alignment with the EU’s values, they do little to directly uphold these core values. In the words of Israel Butler from the Civil Liberties Union for Europe, this is because the commission treats CSOs promoting EU values merely as its “subcontractors,” helping to implement EU law or policy on a project-to-project basis. He also points out that the EU’s programs do not focus on such activities as capacity building or public education, and they are not available for local- or national-level organizations that advocate for Article 2 TEU values. Unless the commission adopts a more flexible interpretation in the next financial perspective, some local CSOs would have to rely more heavily on private donors. At the moment, the Polish government’s rhetoric against foreign donors is not as aggressive as it is in Hungary, but the ongoing smear campaigns in both countries may discourage CSOs from applying for private funding.

Currently, national governments are in charge of allocating some EU funds, such as the Asylum, Migration, and Integration Fund. This funding structure creates a potential risk that governments could award EU money to “loyal” organizations. Other EU funds, such as those earmarked for the Rights, Equality, and Citizenship Program, are administered by the commission, which in itself is a stumbling block for grassroots organizations that have little experience or capacity to deal with the EU’s administrative machinery when applying for funding. CSOs have long urged the commission to look to Norway for inspiration, and replace the EU’s existing funds with one instrument that would rely on an independent body or bodies distributing EU money on the local level. European Economic Area (EEA) and Norway grants are managed and distributed among CSOs by fund operators that are selected in the tender process and are independent of national authorities.

By changing the channels for distributing EU money to promote EU values, the commission could mitigate the risks of awarding funding to CSOs that are overly sympathetic to existing governments and their potentially antidemocratic policies. It would also make the funding more accessible for grassroots organizations that operate in smaller towns or more rural areas, where fewer people may understand the broader implications of the EU and its values. Fund operators along the lines of the Norwegian model likely will have more experience in working with CSOs, and so they may find it easier to communicate EU program objectives to these CSOs. Furthermore, by taking on the burden of some of the EU’s project requirements with regard to eligibility criteria and reporting, fund operators may make it easier for smaller organizations to obtain funding.3

Third, the European Commission could make better use of CSOs in its own work. Its current rule-of-law framework provides that when the commission investigates threats to the rule of law in a member state, it can draw on the expertise of recognized organizations such as the Council of Europe and the EU Agency for Fundamental Rights. However, this framework does not give CSOs a prominent role, even though these same organizations often make heroic efforts to uphold the rule of law. Indeed, the commission met with rule-of-law experts and CSO representatives during its recent trips to Warsaw, but some felt that the meetings were symbolic and did not go beyond fact-checking and discussions about judicial independence. The commission worries that developing closer partnerships with CSOs would open it up to claims from the Polish government that Brussels is taking sides in the ongoing spat over the rule of law in Poland. Indeed, PiS has treated CSOs that promote liberal values as its political rivals. Yet CSOs could provide the commission with a holistic view of what needs to be done to change Poles’ minds, especially if the EU listens to the full ideological range of CSOs and think tanks. The commission should not give up this opportunity out of fear that it might be accused of being biased.

The commission has promised to come up with a new initiative to strengthen the enforcement of the rule of law in the EU. This is the opportunity to give civil society a stronger role in monitoring government restrictions and building a broader societal resilience in favor of democratic values.

Agata Gostyńska-Jakubowska is a senior research fellow at the Centre for European Reform.

The author is grateful to all experts who offered their time to speak with her off the record and share their views on the challenges ahead for CSOs in Poland. She extends special thanks to Israel Butler, Jan Jakub Chromiec, and Małgorzata Szuleka for their useful comments and suggestions on earlier drafts.

1 On December 20, 2017, the European Commission launched an infringement procedure against changes to the law on the ordinary courts. On July 2, 2018, it repeated this procedure against changes to the law on the Supreme Court. On September 28, the European Commission also decided to move to the next stage of its infringement procedure against changes to the law on the Supreme Court, refer Poland to the ECJ, and ask the court to order the interim measures that would help restore the situation in the Supreme Court to the pre-reform process until a final verdict is reached.

2 Article 2 TEU reads: “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. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

3 For a detailed explanation of the rationale and mechanics behind such an instrument, see the excellent papers by Katarzyna Pełczyńska-Nałęcz, “A Normative Empire in Crisis—Time for a Politics of Values,” Stefan Batory Foundation, June 2017, http://www.batory.org.pl/upload/files/pdf/Batory_Normative%20empire_K Pelczynska-Nalecz.pdf; and Israel Butler, “Two Proposals to Promote and Protect European Values Through the Multiannual Financial Framework: Conditionality of EU Funds and a Financial Instrument to Support NGOs,” Civil Liberties Union for Europe, March 2018, https://www.liberties.eu/en/news/european-vaues-fund-two-proposals-mff/14471.