By Ekaterina Tarasova
Since the accession of the Law and Justice party (PiS) in 2015, Poland has been engaged in democratic backsliding – a process defined as the deliberate undermining of liberal democratic values and the system of checks and balances by the domestic elite in order to achieve its long-term hegemony (Pech and Scheppele, 2017). In theory, Poland as an EU member is supposed to uphold the liberal and democratic values of the Treaty on European Union (TEU) – so how, despite EU intervention, can Poland continue to undermine the core values of the Union domestically? The answer lies mainly in the difficulty that the EU experiences in using the limited mechanisms it has to counteract democratic backsliding, especially Article 7 of the TEU, which focuses on intervention when Article 2 (the article that outlines the values of the EU) of the TEU is repeatedly breached (Meijer and van der Veer, 2019). The key elements that make it possible for Poland to continue the process of democratic backsliding are the unanimity required for triggering Article 7 (Meijer and van der Veer, 2019), the ‘procrastination’ of the European Commission through the rule of law framework (Pech and Scheppele, 2017), the ‘authoritarian equilibrium’ that the EU is in (Kelemen, 2020) and the ‘blame game with Brussels’ that Poland plays (Schlipphak and Treib, 2017).
One of the main problems with triggering Article 7, which would allow extensive sanctions to be imposed, is the unanimity in the European Council and the demanding majority in the European Parliament that are needed (Meijers and van der Veer, 2019). Due to both Hungary and Poland undergoing democratic backsliding, both countries have pledged to veto the sanctions that would potentially be imposed on the other (Kelemen, 2020). This means that sanctions cannot pass through the unanimity process, and while the EU has found other ways to circumvent these circumstances in the case of Poland (Pech and Scheppele, 2017), the legitimacy of these actions would be easier to discredit than actions passed with the unanimous approval of the Council.
Another element on the side of the EU that has been criticised by some academics is the ‘procrastination’ of the EU when dealing with democratic backsliding. Pech and Scheppele (2017) argue that the rule of law framework has been largely ineffective in dealing with Polish democratic backsliding, instead giving the Polish government more time to consolidate its power and undermine liberal democratic ideas. As the Commission structured intervention as a dialogue, it has been completely ignored by the Polish government – a dialogue cannot happen when the adverse actions that one of the members is taking are deliberate (Pech and Scheppele, 2017). The postponed triggering of Article 7 has resulted in the Polish government presenting the Commission with the fait accompliof an undermined judiciary and a controlled media; and because ‘the Commission can virtually never force a change in an existing situation’ (Pech and Scheppele, 2017), the Polish government can essentially continue doing this, considering their awareness of the speed at which actions are taken by the EU.
The third element that allows Poland to essentially continue undergoing democratic backsliding is what Kelemen (2020) terms the ‘authoritarian equilibrium’. The EU is willing to tolerate a certain amount of ‘soft’ authoritarianism because certain elements of the system aid in entrenchment but not undermining of authoritarian enclaves (Kelemen, 2020). The semi-politicised structure of the EU based on sovereignty norms and with a mostly intergovernmental character almost guarantees the survival of authoritarian enclaves because it gives authoritarians the resources to maintain themselves, helps with reducing the opposition, and bolsters the government’s reputation (Kelemen, 2020). The EU contributes to the survival of the PiS regime because Poland is a major recipient of EU funding – it has received €86 billion in the 2015-2019 budget – and EU membership puts a ‘seal of approval’ on countries so risk from foreign investors is perceived as lower (Kelemen, 2020). This means that the PiS can afford to bribe its citizens with generous social welfare programs (Tworzecki, 2019). Free movement in Europe makes those dissatisfied with the regime able to leave the country easily, which empties the ranks of the opposition (Kelemen, 2020). Finally, the improvement in conditions which results from domestic remittances tends to be misattributed to the government, which bolsters the perception of its performance (Kelemen, 2020). Whilst in fully developed federalist systems, these same elements can contribute to the undermining of the authoritarian enclaves, the ‘half-baked’ nature of the EU only leaves it with the elements that entrench the authoritarian regime further (Kelemen, 2020).
The final element that allows the Polish government to remain almost interference free in its democratic backsliding is the ability to bolster their legitimacy through making the EU their scapegoat. From the sanctions that the EU applied on Austria, it learnt that instead of undermining the legitimacy of a national government, sanctions can instead strengthen support for it – if the national government can frame intervention as coming from abroad, having an overall negative effect on the country and being illegitimate (Schlipphak and Treib, 2017). Poland has construed the threats of the EU in this way, which means that most of the Polish population believes the threat of EU intervention to be a net negative for them, as the Polish government uses system de-legitimizing rhetoric and promotes the anti-liberal ideas of the influential Catholic church to achieve this (Tworzecki, 2019). Hence, sanctions that could potentially be applied on Poland would not cause domestic support, but rather backlash, as the Polish people want to avoid infringement on their sovereignty.
In sum, the Polish government has successfully sidelined the EU’s anti-authoritarian mechanisms for the past 5 years because of the difficulty of enabling the limited tools that the EU has for counteracting democratic backsliding in the form of Article 7 TEU, the dialogue-based nature of the interventions that were attempted which achieved very little as Poland is not open for dialogue, the mechanisms in place that entrench Polish authoritarianism but do not help undermine it owing to the semi-politicised nature of the EU, and finally the bolstering of domestic Polish support by using the EU as a scapegoat. As a result, the EU is left practically helpless watching the democratic backsliding that there is ‘ample reason to believe […] will spread to other member states’ (Kelemen, 2020). The only consolation for those committed to democracy and the rule of law is that this is ‘soft’ authoritarianism and not a violent dictatorship (Kelemen, 2020).
Kelemen, D. R. (2020) ‘The European Union’s authoritarian equilibrium’, Journal of European Public Policy, 27(3), pp. 481-499.
Meijers, M. J. and van der Veer, H. (2019) ‘MEP responses to democratic backsliding in Hungary and Poland. An analysis of agenda-setting and voting behaviour’, Journal of Common Market Studies, 57(4), pp. 838-856.
Pech, L. and Scheppele, K. L. (2017) ‘Illiberalism within: Rule of law backsliding in the EU’, Cambridge Yearbook of European Legal Studies, 19 (Oct), pp. 3-47.
Schlipphak, B. and Treib, O. (2017) ‘Playing the blame game on Brussels: the domestic political effects of EU intervention against democratic backsliding’, Journal of European Public Policy, 24(3), pp. 352-365.
Tworzecki, H. (2019) ‘Poland: A case of top-down polarization’, The Annals of the American Academy of Political and Social Science, 681(1), pp. 97-119.
Kelemen, D. R. and Blauberger, M. (2017) ‘Introducing the debate: European Union safeguards against member states’ democratic backsliding’, Journal of European Public Policy, 24(3), pp. 317-320.
This blog post was written as part of the coursework for INRL20160 – Introduction to EU Politics.