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A man holds a sign 'Europe don't give up!"
The ruling by Poland's top court has led to a host of pro-EU protests in Warsaw and in other Polish citiesImage: Omar Marques/Getty Images

Brussels must address Polish provocations

Barbara Wesel
October 23, 2021

The Polish government is disputing the primacy of EU law over national whims. If Warsaw doesn't want to play by the rules of the European Union, the EU should take decisive action, DW's Barbara Wesel writes.


Some observers believe that the Polish prime minister's appearance at the recent EU summit in Brussels was somewhat less belligerent than his previous blistering attack on the bloc in the European Parliament. But these are just diplomatic nuances. The fact is that Mateusz Morawiecki continues to fight for the political principle that Polish law should prevail over EU law whenever the government in Warsaw fancies.

The Polish government argues that it never agreed to cede as much sovereignty to the European Union as it is currently being asked to. However, after much wrangling, Poland signed the Lisbon Treaty in 2007, which forms the negotiating basis for policy in today's European Union.

EU summit overshadowed by row with Poland

Lech Kaczynski, Poland's president at the time, had envisioned a different European Union: a purely economic alliance that would serve to distribute money among nation-states. Now, his brother, Jaroslaw Kaczynski, the head of Poland's ruling Law and Justice Party (PiS), is trying to revive that old idea. But there was no majority for it then, and there is no majority for it now in the European Union.

Backed internationally by Hungarian Prime Minister Viktor Orban and former US President Donald Trump, Poland's government is trying to hollow out the European Union from the inside. This is not about defending domestic law against judicial overreach from the EU. In almost all areas — whether criminal law, taxes, health, education or public administration — EU member states remain as autonomous as ever. This is as true for Poland as it is for Italy or Denmark.

Staving off authoritarianism

The European Court of Justice only issues rulings on the domestic affairs of EU member states when stated democratic principles are at stake. The cases can involve, for example, the principle of equality for all EU citizens, as in the case of LGBTQ communities — an issue on which the ECJ has already ruled against Poland's government. Or they can involve the core democratic principle that a country's judiciary must be free and independent from the political class. For years, the EU and the ECJ have been at loggerheads with Warsaw over the systematic expulsion of independent judges and the filling of their posts with loyalists of the ruling PiS party.

Woman looks at camera with the blurred flags of EU member states in the background
DW's Barbara WeselImage: DW/G. Matthes

The state structure that Poland's government is striving for would clearly not be a democracy in line with EU rules. The development points to a kind of controlled rule with autocratic features. That path usually involves dismantling the independent judiciary and then the free press and finally crushing civil society. Once that's done, elections are a mere formality for the ruling circle. Vladimir Putin's Russia shows what this looks like in the end.

In its current state, Poland would fail to meet some of the admission criteria for the European Union. And the type of authoritarian regime that Kaczynski and his supporters are currently trying to establish would have no place at all in the EU. The other member states made a terrible mistake when they didn't oppose Viktor Orban as he delivered a blueprint to other newer EU members for how to dismantle a democracy and replace it with authoritarian kleptocratic rule.

Rethinking 'Merkel method'

The European Union must prevent similar developments in Poland. The country is too big and strategically too important. When Britain left the European Union, it was clear-cut. The country terminated its membership and, after lengthy negotiations, left.

Poland's Constitutional Court 'is a marionette court'

But Poland's government appears intent on remaking the European Union. Dutch Prime Minister Mark Rutte and others have recognized the gravity of the situation and have declared that their patience is exhausted by Poland's actions. Perhaps it's even time to retire the "Merkel Method": the German chancellor's engaging in endless dialogue — even with the most recalcitrant EU member states.

Czech Prime Minister Andrej Babis has just been voted out of office; Slovenia's Janez Jansa may soon follow him. Domestic voters may prove the European Union's first line of defense.

If Poland's government no longer wants to play by the EU's rules, the country will have to leave the European Union. Another option is to rethink the old idea of a core of member states with a secondary tier of associated countries, to which Poland would belong.

In any case, the European Union must fend off attacks from Poland and use financial sanctions if needed. Why should German, Dutch and French taxpayers finance the autocracy of Jaroslaw Kaczynski? The European Union must stop him — now.

 This commentary was translated from German.

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