A tac­ti­cal re­treat in War­saw

Poland com­pro­mises but the EU isn’t sat­is­fied

Financial Mirror (Cyprus) - - WORLD - By Ja­cob Shapiro

Poland will not im­pose early re­tire­ment on its Supreme Court jus­tices af­ter all. Bow­ing to an Oc­to­ber Euro­pean Court of Jus­tice rul­ing, the Pol­ish leg­is­la­ture has voted to re­peal a law that low­ered the manda­tory re­tire­ment age for its Supreme Court jus­tices from 70 to 65. That law, part of Pol­ish ju­di­cial re­forms passed in 2017, ran afoul of the Euro­pean Com­mis­sion, which has re­peat­edly de­scribed the re­forms spon­sored by the rul­ing Law and Jus­tice party, or PiS, as in­com­pat­i­ble with “EU laws, val­ues, and prin­ci­ples.” Pub­licly, the Euro­pean Com­mis­sion is pleased. In War­saw last Fri­day, its vice pres­i­dent called the re­peal of the re­tire­ment pro­vi­sion a “wel­come step.” Un­der the cover of anonymity, how­ever, EU of­fi­cials told the Fi­nan­cial Times that the move “would not re­solve the broader stand­off with War­saw.” If that is the Euro­pean Union’s true stance, it raises the ques­tion of whether Poland can do any­thing to com­pletely sat­isfy Brus­sels short of bend­ing the knee.

Much-Needed Re­form or Threat to the Rule of Law?

Ju­di­cial re­form in Poland is ad­mit­tedly a com­pli­cated is­sue. Poles be­lieve that their ju­di­ciary needs re­form: An Au­gust 2017 Pub­lic Opin­ion Re­search Cen­ter poll found that 81% of those sur­veyed be­lieved that re­form was nec­es­sary. At the same time, Poles are highly skep­ti­cal of the PiS’ changes. A July 2018 sur­vey by the War­saw-based In­sti­tute for Mar­ket and So­cial Re­search found that 54% of re­spon­dents had a neg­a­tive view of the re­forms and just 39% ap­proved. Those num­bers are in line with over­all sup­port for the PiS, which won par­lia­men­tary elec­tions in 2015 with 38% of the vote.

In rul­ing that Poland’s demo­crat­i­cally elected gov­ern­ment vi­o­lated the rule of law by re­spond­ing to a le­git­i­mate de­sire of the Pol­ish peo­ple, the Euro­pean Union has gone out of its way to in­ject it­self into a mem­ber state’s highly charged, de­cid­edly do­mes­tic po­lit­i­cal de­bate. That mem­ber state’s gov­ern­ment con­ceded to the ECJ’s rul­ing and re­in­stated jus­tices that were forced to re­tire in July – mak­ing it dif­fi­cult to ar­gue that the rule of law is in jeop­ardy in Poland. The ar­gu­ment is even harder to make con­sid­er­ing that PiS per­formed dis­mally in lo­cal coun­cil elec­tions in Oc­to­ber, win­ning just a 32.3% plu­ral­ity of votes and los­ing the War­saw may­oral race by 4 per­cent­age points. If Poles are still un­happy with PiS’ per­for­mance, they can show the party the exit via the bal­lot box in the Novem­ber 2019 par­lia­men­tary elec­tions.

Poland and the EU Need Each Other

Poland’s gov­ern­ment is eu­roskep­tic, but its peo­ple are not. An April 2018 Euro­pean Par­lia­ment sur­vey found that 70% of Poles be­lieve their coun­try’s mem­ber­ship in the Euro­pean Union is a good thing. Just 5% say it is a bad thing – tied for the sec­ond-low­est EU dis­ap­proval rate in the soonto-be EU27. (The re­main­ing 25% are am­biva­lent.) This is not sur­pris­ing. The Euro­pean Union emerged from in­sti­tu­tions that were de­signed with two key func­tions in mind: to tie Ger­many into an eco­nomic sys­tem that would pre­vent it from at­tempt­ing con­ti­nen­tal dom­i­na­tion again and to unite Euro­pean pow­ers against the Soviet Union. In other words, the EU is de­signed to weaken Poland’s two great­est his­tor­i­cal en­e­mies. EU mem­ber­ship has eco­nomic perks, too. From 2008 to 2015, EU-sup­ported gov­ern­ment spend­ing ac­counted for over 5% of Poland’s an­nual gross do­mes­tic prod­uct. In 2017, Poland re­ceived 12 bln eu­ros ($13.6 bln) from the EU – 2% of GDP – while con­tribut­ing just 3 bln eu­ros.

It is lit­tle won­der, then, that PiS has ex­e­cuted this hair­pin turn. What­ever the mer­its of the claims that PiS ju­di­cial re­forms vi­o­lated the rule of law, Pol­ish op­po­si­tion par­ties have ef­fec­tively made the case that PiS’ re­forms could jeop­ar­dise Poland’s EU mem­ber­ship. The cur­rent Pol­ish gov­ern­ment is both na­tion­al­ist and eu­roskep­tic, but it isn’t sui­ci­dal: To con­tinue to defy pop­u­lar opin­ion would have been bad pol­i­tics, and it knows that it will not sur­vive as the rul­ing party if vot­ers are con­vinced that its re­forms could cause Poland to crash out of the EU or, at the very least, be sub­ject to se­ri­ous EU sanc­tions. Poland’s de­sire for greater au­ton­omy and the con­tin­ued ex­is­tence of the EU are not nec­es­sar­ily mu­tu­ally ex­clu­sive.

It is also in the in­ter­ests of the EU’s ma­jor pow­ers to keep Poland in the fold. For Ger­many, Poland is not sim­ply an­other ex­port mar­ket – for years, Ger­many has cap­i­talised on Poland’s cheap and well-ed­u­cated la­bor pool to max­imise the ef­fi­ciency of its sup­ply chain. Ger­many also needs the EU to con­tinue buy­ing Ger­man prod­ucts, and it needs still more mar­kets to which it can sell. Poland’s co­op­er­a­tion in this is crit­i­cal. The goal for Ger­many is to bring more coun­tries into the EU fold, not fewer. Brexit can be ex­plained away by the U.K.’s his­tor­i­cal dis­tance from and sus­pi­cion of the Euro­pean project – but any real move by Poland to exit might cause a domino ef­fect in East­ern Europe. As for the EU’s other heavy­weight, France is both less in need of Pol­ish co­op­er­a­tion and less im­por­tant in Europe than it thinks. While France has a pow­er­ful mil­i­tary, the EU has be­come an eco­nomic en­tity, and there are lim­its to how hard France can push with­out top­pling the struc­ture – an even­tu­al­ity that, like Poland, its in­ter­ests dic­tate it must avoid.

Why Brus­sels Won’t Sac­ri­fice Its Au­thor­ity

In­deed, the is­sue here is not Poland, nor is it Ger­many and France: It is the Euro­pean Union. Poland aims to pre­serve its in­de­pen­dence by keep­ing Ger­many and Rus­sia in check. Ger­many needs mar­kets for ex­ports. France, too, needs to keep Ger­many in check and has nos­tal­gic delu­sions of im­pe­rial grandeur. The en­tity that is caus­ing trou­ble here is not any EU mem­ber state, but rather the union it­self. The EU has an im­per­a­tive of its own – to main­tain and in­crease its au­thor­ity over its mem­ber states. Bu­reau­cracy has created an en­tity that no longer pur­sues the in­ter­ests of its mem­bers but in­stead pur­sues the in­ter­ests of a bloc that is more au­thor­i­ta­tive and sov­er­eign than its mem­bers orig­i­nally thought it should be. Case in point: The same sur­vey that found that 70% of Poles sup­port Poland’s mem­ber­ship in the EU also found that just 42% of Poles think the EU is “go­ing in the right di­rec­tion.”

For 46 years, Poland was shrouded be­hind the Iron Cur­tain. Mem­ber­ship in the EU is not just strate­gic or eco­nom­i­cally ben­e­fi­cial for Poles. It also ties the Pol­ish peo­ple to the Euro­pean project. Pol­ish iden­tity is no longer wrapped up in en­forced iso­la­tion: Poles are now proud cit­i­zens of an in­de­pen­dent coun­try that is also an emerg­ing power in East­ern Europe and is as Euro­pean as any other EU mem­ber state. This is not a coun­try that wants a stand­off with the EU and yet the EU is be­hav­ing like Poland wants to bring the whole ed­i­fice down. If the EU is act­ing in good faith, the stand­off should soon be re­solved. The ECJ rul­ing found two le­gal prob­lems with the PiS re­forms: the ap­pli­ca­tion of new re­tire­ment ages to pre­vi­ously ap­pointed judges, and the grant­ing of dis­cre­tion to the Pol­ish pres­i­dent to ex­tend ju­di­cial ser­vice of Supreme Court judges. The PiS gov­ern­ment has ef­fec­tively ad­dressed half of the ECJ’s con­cerns, and if it is will­ing to com­pro­mise on the former, it will likely com­pro­mise on the lat­ter, es­pe­cially in its weak­ened state.

But this is not (and never has been) about ju­di­cial re­forms. The EU sees in the PiS gov­ern­ment a po­ten­tial chal­lenge to its au­thor­ity. It has sin­gled out Poland, as it has sin­gled out Hun­gary and Italy, be­cause Brus­sels can­not tol­er­ate de­fi­ance from the pe­riph­ery. On this par­tic­u­lar is­sue, there will be no sig­nif­i­cant back­lash: For one thing, a large ma­jor­ity of Poles agree with the ECJ, and for an­other, mem­ber­ship in the EU is far more im­por­tant, even for the PiS gov­ern­ment, than se­cur­ing the au­thor­ity to make cer­tain ju­di­cial ap­point­ments. Even­tu­ally, whether in Poland or else­where, the EU will in­ter­vene this heavy-hand­edly on a more con­tentious mat­ter. At is­sue will be not whether a judge can serve un­til the age of 65 or 70, but the sovereignty of the mem­ber state in ques­tion. Even in as eu­rophilic a coun­try as Poland, that will smack of tyranny too much to abide.


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