Polish Nationalists Are Beating the EU at Its Own Game

Leaders in Warsaw are savvier than Brussels realized.

Good cop, bad cop.

Photographer: Mateusz Wlodarczyk/NurPhoto via Getty Images

The nationalists who rule Poland are proving to be clever players in their confrontation with the European Union, which has accused them of undermining the rule of law but hasn't yet sanctioned them for it. President Andrzej Duda has presented what he says are compromise proposals on a court reform that especially angered the EU. It's an olive branch the EU should only accept if it secretly regrets lashing out at the Polish authorities.

PiS, the party that helped Duda win the presidency in 2015, has done a lot to move the country up the authoritarianism scale. It started by taking firm control of the country's constitutional court (whose authority to interpret the country's basic law lies outside the scope of the current reform). It went on to turn publicly-owned media into party propaganda channels. And it pushed through legislation without consulting with other political forces, despite only holding a narrow majority in parliament. All the while, the EU looked on, voiced mild concern, initiated a "dialog" with the Polish government, which the latter largely ignored.

The cup appeared to overflow in July, when the PiS pushed through three laws overhauling the court system. They removed the current supreme court judges, gave the parliamentary majority control over the committee responsible for judicial appointments, handed the justice ministry broad power over regional courts.

European Commission First Vice President Frans Timmermans then took the unusual step of threatening Poland with Article 7 of the EU treaty -- a procedure that potentially leads to the loss of a country's vote in the EU for failing to uphold its fundamental values. This has never happened before, and it was as serious a threat as an EU official could make. Timmermans made it clear the procedure would be contingent on the laws going into effect; a few days later, Duda vetoed two of the three, allowing the regional courts law to stand. The EU launched an infringement procedure against Poland with regard to that law, but the crisis was temporarily defused.

The PiS made dismayed noises about Duda, making it look as though he'd had a falling out with his former allies. This gave the president some latitude to put forward a face-saving solution for Timmermans and other EU officials. He presented it on Monday, and it doesn't look too different from the original PiS bills -- at least in spirit. According to Duda's proposal, the supreme court judges wouldn't need to retire immediately -- only when they turn 65, or 60 if they're women (which removes more than a third of them, including the chief justice, by the end of the year). The president also suggested creating two new panels -- one for extraordinary complaints, consisting of politicians and empowered to overturn supreme court decisions, and one for disciplinary complaints against judges. According to Duda's version of the reform, the parliament would still elect the National Council of the Judiciary -- the body that selects judges -- but by a three-fifths majority rather than a simple one. 

In a masterful move, Duda initially suggested a constitutional change: If the parliament fails to elect the National Council of the Judiciary, the president would be allowed to do it. As Duda discussed his plan with the leaders of parliamentary factions immediately after the announcement, that drew all the fire: The opposition is dead set against amending the constitution on judicial matters, and the PiS doesn't want to unduly empower the president. So Duda quickly backpedaled, suggesting a different tiebreaker procedure: each legislator votes for one candidate to the council. It looked like a concession, though it would effectively favor the majority party, especially since the populist Kukiz '15 faction seems willing to form an alliance with PiS on judicial matters. 

Duda's version of the reform has the same goal as the original PiS one: To increase political control of the judiciary. It's not necessarily a bad idea: Many developed countries, including the U.S. and Germany, give politicians an important role in selecting judges. In Poland today, the judicial community is more autonomous than in those countries, which may create a dangerous shortage of accountability. But the EU has already chosen this matter as its red line with Poland, so the Poles are treating it as a political rather than legal matter. PiS leader Jaroslaw Kaczynski is still talking about a rift with Duda, creating the impression that the country's checks and balances are working and tempting the EU to accept Duda's "compromise." But essentially, Duda is helping Kaczynski push through his ideas with minimal changes.

The EU should have acted earlier, when the PiS steamrolled over the constitutional court. The current issue is less clear-cut, and there's no guarantee that the European Court of Justice will strike down the Polish court reform. So there are signs that Timmermans may be willing to back down. Article 7 was not mentioned when EU affairs minister met in Brussels after Duda's announcement. Timmermans promised to "study very carefully the amendments" and urged Poland to send them to an EU expert body. 

It doesn't, however, take particularly careful study to notice that the substance of the proposals hasn't changed. If the EU is determined to take on the PiS, it should push ahead with the Article 7 procedure rather than fall for the good cop/bad cop routine of Duda and Kaczynski. If Brussels gives up and looks for a new infringement as a pretext to push Poland's illiberal government into line, it may never get around to doing anything. The Poles know its game, and they'll be as crafty as their ally, Hungarian Prime Minister Viktor Orban, in walking the edge and never suffering any consequences. The EU doesn't want that; a government that plays fast and loose with the courts, the media and even with European alliances (the PiS, for example, demands World War II reparations from Germany) is not really part of the European project. Forcing this government to propose a meaningless compromise is not much of a victory; in fact, it's a defeat.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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