Forum.eu podcast: Poland and the rule of law, Brexit, and the work ahead for Ursula von der Leyen

05 September 2019

In this episode of the podcast, we get to talk to Agata Gostyńska-Jakubowska, senior research fellow at the Centre for European Reform.
We discussed Poland, the EU and the rule law, expanding on the ongoing infringement procedures and what this means for other European countries (4:05). We also touched on Brexit (13:58), discussing a no deal, and other ramifications for the EU(18:23), before we got to talk about the top priorities (22:14) for European institutions and how to strengthen the bond between the EU and European citizens (27:12).

Agata Gostyńska Jakubowska, thank you for joining us today. You are a senior research fellow at the Centre for European Reform. Your work involves the EU institutional architecture, the EU decision making process, differentiated integration, on Polish-European policy and the UK’s relationship with the EU. First of all, I’d like to ask you what experience, book or moment shaped your mind towards Europe when you were younger?

Agata Gostyńska Jakubowska: Thank you very much for having me with you today. To be honest my passion for European affairs was not really an effect of any particular eureka moment; I knew what I wanted to do ever since I was a teenager. But in a way I was probably luckier than some of the other kids because I found encouragement in my History teacher in high school, who I think was probably impressed with my enthusiasm and decided actually to work with me so that I could achieve my ambitions, and could be where I am today. Frankly, even to this day, I really remember the moment when she first asked me to have my own press notebook in which she wanted me to take notes of the most important events in both the World and European affairs, on any given day. Then we would be sitting down together at the end of each week, discussing all the events that I had picked. She wanted me to think about the reasons why those things happened in the first place and look also at their implications for international affairs. So now that I am thinking about this all those years later, it seems to me that she was actually the first person who inspired me to think critically about the world that surrounds us, and also helped me to develop analytical thinking skills, which as you know are so crucial in my everyday job. By the way, make no mistake, it was long before the Internet or smartphones became a permanent feature of any household. So in order to answer all the questions she was asking, I often had to conduct a really thorough research.

The European Commission announced on July 17 it is taking a new step in the ongoing infringement procedure against Poland regarding the new disciplinary regime for Polish judges. Would you give us an overview of the evolution of this issue with the rule of law, and the significance of the ruling for other European countries?

Absolutely, I’m happy to do this. And in fact I’m actually really glad that you asked this question because the issue of the rule of law, and more specifically democratic backsliding in some of the EU member states has become an important strand of the Centre for European Reform’s work. As you might know the CER championed the ‘Big Bang’ enlargement, and once that materialized my colleagues worked hard towards solidifying the relationship between the old and new member states. For example, the CER co-organized for a number of years the Polish-British roundtable, which gathered both British and Polish representatives who would be discussing their issues of joint interests.

But now that I’m thinking about this, the work of my colleagues and my own work has not always been easy. And this is because some old member states long thought that the enlargement happened perhaps too quickly. You might even know which member state I’m referring to. And some of them were actually treating Central Europe as the junior partner.

And this is why it was actually so encouraging for experts like myself to see Poland boosting its profile and reputation in the EU, which culminated in the elevation of the former Polish Prime Minister Donald Tusk to the office of the European Council President.

Now obviously, you are referring to the current status quo and as you rightly pointed out today Poland, but not only Poland ,Hungary too, are again sort of on the hook. Both governments have undermined democratic checks and balances among other things, they captured public media, they undermined the independence of the judiciary, but also made it difficult for civil society organizations to set the record straight. But what is interesting ,and this is where the whole clash between Poland, Hungary and Western European countries is coming, is that both governments have maintained that they have a democratic mandate to reform the countries’ judicial systems, and that it is up to a member state to determine the makeup of its judiciary. What they have been claiming in the past couple of years, is that the EU has no right to intervene.

That’s the wrong approach, because the deterioration of the rule of law in any member state could have EU-wide implications. Particularly in areas such as the single market, or the Justice and Home affairs. Mainly because those policy areas have worked well, because member states have relied on each other’s ability to apply or implement EU rules and to enforce them if necessary. So if a member state undermines say the independence of its own judiciary, then it upsets the entire trust upon which those individual policy fields have been built. So in a way and also in the most recent ruling, which you might have heard of about the Supreme Court reform, the Court of Justice has determined that whereas indeed a member state is free to determine a makeup of its own judiciary, while doing so it needs to abide by EU law. And it has also maintained that Polish courts are in fact EU courts, in so far as they apply and interpret EU law, and with any attempt to undermine the independence of the EU law. It seems to me that the Court of Justice is likely to say something similar in the other proceedings which were brought by the Commission against the Polish government, because as you know this is not the only proceeding currently taking place.

You also asked about the significance of those rulings: I think they are pretty fundamental for the whole debate about what the EU should do to address democratic backsliding in the EU member states. Because they constitute a big win for the European Commission, which as you might know, long hesitated to bring the case against, more so mainly because it wasn’t sure it could win. So it does really encourage the Commission to take a more assertive stance in the future, but also perhaps encourages some member states which have been more on the fence when it comes to how the EU should approach those issues, to be more straightforward in their own approach towards the defiant member states.

Indeed. What in your opinion is the vision and feeling Polish people have of and for European institutions and Europe at large? And how much do they differ from the positions of the Polish government?

I think I’m probably not going to say anything that you don’t already know, but I will do it nonetheless. The Polish public is broadly pro-European. So if you ask my fellow Poles whether, for example, they want to follow the UK in its footsteps and leave the EU, they will tell you overwhelmingly ‘no way’. Having said that, if you ask them a slightly different question, say ‘is the EU right to intervene in Poland? And should the European Commission strike down the Polish judicial reforms?’ Then you will get less obvious answers. And I think, you probably know what I am now aiming at.

The Polish public is pro-European but obviously when you start asking questions which have something to do with their sense of identity, they are probably more critical of certain fields of European cooperation. So just to give you another illustration of that, after the European Commission launched its Article 7 procedure, around 43 percent of Poles thought that triggering this procedure was unjustified and 38 percent felt that it was justified. And then you had 19 percent who were undecided.

That simply shows that the public is kind of split on those issues and this is why I am always worried that any EU action or intervention, disciplinary actions against the Polish government could result in a public backlash. And this is despite Poles being pro-European.

This leads me to another point I wanted to make, which is that this is also why explaining the EU’s rationale behind its actions is so important. It should go hand in hand with deploying all the instruments the EU has to fight backtracking on the rule of law. So far it seems to me that the EU hasn’t done it properly. It hasn’t really explained to the Polish public why it is intervening and why it is in the Polish public’s interest for the EU to take action.

Perhaps just a final point on this: to be fair I don’t think that European issues or even Poland’s reputation in the EU are at the centre of the Polish public’s priorities. As long as the public feels that it is better off with this government, rightly or wrongly, because this government makes it feel secure and taken care of, then it will keep on voting for it. Even if the actions of the governing party could lead to Poland’s marginalization in the EU. To be fair, the current government has been reading the public opinion pretty well.

You mentioned Brexit earlier on, with Polish people not wanting to follow in the steps of the United Kingdom. Boris Johnson is the new Prime Minister in the UK and has appointed his new government. So we can think that negotiations on Brexit are soon to resume, and probably by the time our listeners are listening to this, they have. And that would be again the topic of the day. He has already announced his position on the backstop, and has been quite vocal about his opinion on taking a no deal. What are your thoughts on what is ahead with Brexit for the EU and UK?

Frankly speaking, this is a really tough question because it is extremely difficult to speculate at this moment in time. But I worry that we have to brace for a no deal scenario. And this is because Boris Johnson, current/new British Prime Minister, seems to think that if he shows that the UK is serious about no deal preparations and if he threatens to withdraw the 39 billion euros which the UK committed to pay to the EU, the latter, meaning the EU 27 will blink. I think that’s the wrong approach.

Just to perhaps remind some of your listeners, both Boris Johnson but also many of his Eurosceptic Cabinet members, have been pretty unequivocal that the backstop, which you just referred to, needs to go. The problem is that this approach totally ignores the reasons why the backstop is there in the first place.

And to help your listeners understand what this backstop really is about: the backstop simply emphasizes that until and unless the UK and the EU strike a future relationship agreement which will obviate the need for the hard border in Northern Ireland, the whole UK will remain in the Customs Union with the EU. The backstop is really an insurance policy for the EU but particularly for Dublin, and is simply there because the UK did as follows: the UK said ‘we want to leave the single market but we also wanted to leave the EU’s Customs Union. And by the way, we are also committed to making sure that there is no hard border in Northern Ireland’. Those three objectives are very difficult to reconcile and this is why the EU 27 and the British government came up with this insurance policy.

So yes, the backstop is the most toxic question. And just to come back for a second to why I think the EU is unlikely to blink under the UK pressure, to be perfectly clear the EU 27 prefers ‘deal’ to ‘no deal’, and obviously no one in any EU capital is enthusiastic about the possibility of going for a no deal scenario. But there are also limits to how far the EU 27 can go in accommodating Britain’s demands, precisely for the reason I described, to avoid that scenario. So it seems to me that unless the UK actually softens its position on the backstop, then it will be very difficult for both parties to find an agreement.

It’s a difficult topic and I’m sure we have way more episodes to see how that unfolds. Until October 31, or perhaps beyond. You work, as I mentioned earlier on, for the Centre For European Reform on the topics of the EU institutional architecture and EU decision making process, among many other topics. As a new Parliament just opened, and a new Commission President was elected, what are the reforms you think would be important for European institutions to undertake to promote democracy in the European Union and beyond?

I think, just to start with the European Union, it needs to be more serious about democracy promotion in its own member states. Until now the assumption has been that once a country becomes a member state there is no point in continuous support for upholding democratic values there. And this is in a way also why the EU has spent much more money [on democracy promotion] abroad than in its own members states. But I think this needs to change, this approach needs to change. We already see some positive indications in the discussions about the next multi-annual financial framework, but obviously the next multi-annual budget will have to be approved by all member states, or we’ll see whether they also hear what we are saying right now then.

Second, it seems to me the EU needs also to be more strategic about which activities it funds, when it comes to democracy promotion. And make sure that the money does not really fall into the wrong hands. To give you an example, currently national governments are in charge of allocating some EU funds, it was the case with the Asylum, Migration and Integration Fund; obviously this funding structure creates a potential risk that any government could award EU money to more ‘loyal’ organizations.

This brings me to, perhaps the most important point I wanted to make, which is that the European Commission really needs to make better use of civil society organisations in its own work. This is because those organisations are on the ground, they can offer some insights on individual cases of democratic backsliding, they often make heroic efforts to uphold the rule of law. I think that they deserve to be listened to. I am not saying that the Commission has not been doing this, far from it, but it could make a better use of civil society organizations. In fact, I went in details about this in a paper I wrote, “New Approaches to Upholding Democratic Values in Poland”, which was published by Carnegie Europe. In a way I was also delighted to see that the European Commission decided to reflect on some of the points we have just mentioned in its most recent communication on the rule of law, which was published in July, 2019. But we will obviously have to wait and see what happens once the new College of Commissioners is assembled, and how the new college will approach those issues.

What are the top priorities you think EU institutions need to tackle in the next few months?

I just mentioned the College of Commissioners: as you know we are having a change of guards in the EU leadership, and the European Parliament already elected the new Commission President who will take over from Jean Claude Juncker, Ursula von der Leyen who is a former German Defence Minister. She will really have to build an efficient team of Commissioners who will help her deliver on all those priorities or all the promises she made to the European Parliament. The European Parliament will then have to approve her entire College before it can assume office in November.

It seems to me that she can’t really afford another tied vote, or worse, the rejection of her dream team by the European Parliament because obviously that would undermine her entire credibility and standing in the [public’s] eyes, and also vis-a-vis EU institutions and the member states. And perhaps two other points on this, without dwelling too much on the discussion about why EU leaders pulled Ursula von der Leyen out of their hats and sort of abandoned the Spitzenkandidaten system, but some MEPs actually worried that as a compromise candidate, Ursula von der Leyen would be under the thumb of the EU capital. So it seems to me that one of the biggest challenges for her in the next couple of weeks and perhaps months will be to show that actually she can be assertive vis-a-vis member states when she puts together her dream team.

As you know, the member states put forward individual candidates for Commissioners, but it is the President-elect who really decides which role they should assume. And one of the promises Von der Leyen made, which is probably music to both yours and my ears, is that her college will be more gender balanced. So she asked, for example, each individual member state to send her both a female and a male candidate. Unfortunately, some member states ignored her plea, and provided her only with a male name. It seems to me that now she has to prove assertive and ask them to go back to the drawing board and deliver another name. This could also buy her goodwill among those MEPs who thought she would be, as I said, under the member states’ thumb. And then perhaps a final point I wanted to make is that Von der Leyen herself identified six priorities for the EU as such, in the next years to come.

One of them is the European Green Deal, a second one is an economy that works for people, a third one is a Europe fit for the digital age. Then, the fourth one is protecting the European way of life. She also wants Europe to be stronger in the world, and she is promising that she will push for European democracy.

So without going into details of what each of those individual priorities entail, if you look for example at the first priority, it covers climate issues and it features prominently in her program. It seems to me she really gets that the public is crying for change on such issues like climate, and that the EU cannot remain complacent about this. The problem is, or the question perhaps, will she be able to deliver on this? The answer perhaps to this question, and to the other ones we discussed, you could also probably find in the work of the Centre for European Reform as we are just about to publish a short paper on challenges ahead for the current President-elect of the European Commission.

And I’ll remind our listeners that the website for the Centre for European Reform is cer.eu. We at Forum.eu are fully engaged and motivated by Europe and its citizens as we are working to create a concerted, strong European public sphere, as we believe it is crucial for our democracy in Europe and within European countries. What do you think is now crucial to strengthen the bond between the EU and its citizens?

I think there are many ways to bring the EU closer to citizens, and to be fair the European Commission has already made some efforts towards reducing these democratic gaps. For example, the outgoing Commission President Jean Claude Juncker asked his Commissioners to travel more often to EU capitals and to engage in various citizen dialogues, but also in a dialogue with national parliaments. I thought it was a very innovative way of bridging that gap between the citizens and EU institutions, which are still seen as remote to many citizens. Now, it seems, and this is also something that I feel quite passionate about and I’ve been exploring this in my work, but it seems to me that the EU should be treating more seriously the contribution that each individual national parliament could have. Basically EU institutions should perhaps treat national parliaments more as allies than rivals, as it has been the case. This is because national parliamentarians are directly elected in each individual member state, and they very often understand better the concerns of their individual citizens, than far away EU institutions. To me, they could also help EU institutions fight, for example, euro skepticism. The problem is — and this is in a way something I hope the incoming President of the Commission will be able to correct — the incoming President seems to believe that it is mainly the European Parliament which is the major source of EU democracy. And for example, she didn’t mention national parliaments at all in her political guidelines that she presented to the European Parliament before it voted on her candidacy. It seems to me that it is a pity because for a multilevel EU democracy to work it requires national parliaments to be involved too, particularly in those policy fields which actually have to do again with the countries sovereignty, identity, etc. So this is probably something that I would like the incoming President to do more about. I’m also currently close to finalizing a paper on precisely this issue, which will hopefully be published in September, and is part of the project that I am involved with which is run by Carnegie Europe and is looking into ways to boost European democracy.

Wonderful. We’ll make sure to take a look at that in September when it’s published. As a final question, could you tell us and our an audience who cares about Europe about a book or a resource on Europe that you would recommend for all of us to read or listen to at the moment?

Yes absolutely. I think I would highly recommend Timothy Snyder’s book “On Tyranny, 20 lessons from the 20th century”. To me this is a must read really for everyone who worries about the rise of populism in Europe but also in other places. And without revealing too much, Snyder’s message is really simple: the future is in our hands, in my hands, in your hands. His book, which is by the way a very brief, short booklet, offers some basic rules on how to become more resilient to the populist narrative, which has become so attractive in the last years or so. And one of Snyder’s recommendations or tips for all of us, believers in liberal democracy, is to make an effort to separate yourself from the Internet and read books. So I thought, this is the one which is definitely worth mentioning.

We’ll take that, this is actually a very good piece of advice. Agata Gostynska-Jakubowska, thank you very much for joining us today. Our listeners can read more about your work with the Centre for European Reform on cer.eu, or they can follow you on Twitter, you are @AgataGostynska.