What Can the EU Do to Halt Poland's Slide into Authoritarianism?

This article first appeared on the American Enterprise Institute site.

Yesterday, the European Commission (EC) recommended that the EU starts action against Poland over its changes to its judicial system, thus triggering the procedure under Article 7 of the Lisbon Treaty.

However, translating that recommendation into action will require a decision by the European Council. That seems unlikely, as the Polish government has a number of allies who can easily block any further moves.

The debate over Article 7 should not conflate views and policies that are illiberal —such as the country's restrictive immigration and asylum policies, social conservatism, and statist economic policies — with authoritarianism . Although in the Polish — or Hungarian — case, the two seem to be going together, Article 7 is concerned uniquely with the latter.

Specifically, since its arrival in power in October 2015, the government of Law and Justice Party (PiS) has sought to strengthen political control of the judiciary: first by introducing changes to the composition and procedures of the Constitutional Tribunal that the Tribunal itself declared unconstitutional and then by introducing a sweeping overhaul of the judicial system that would give the executive unprecedented powers over judicial appointments.

German Chancellor Angela Merkel and Polish President Andrzej Duda at the Chancellery in Berlin on June 17, 2016. JOHN MACDOUGALL/AFP/Getty

The reforms were criticized even by Rex Tillerson's State Department, concerned over "[weakening] of the rule of law in Poland."

As I wrote in the summer,

The PiS's justification for the changes is that the court system is corrupt, politicized by appointments made by the previous government of Civic Platform (PO), and dominated by a tightly-knit clique of old communist justices.

Similar complaints are not uncommon across the post-communist world. Yet, by regional standards, Poland has long fared just fine, outperforming most of its Central European neighbors on metrics such as the World Bank's Rule of Law and Control of Corruption.

And, as for the communist-dominated courts, the average age of a judge in Poland is 38 years.

Since then, Poland has also seen an escalation of smear campaigns against the government's critics by public broadcasters and new, tighter rules restricting civil society organizations.

To be sure, the country has not slid down the path of authoritarianism as far as Russia and Turkey (or even Hungary), but the direction of travel is unmistakable.

Critics of the EC's decision will argue that it is illustrative of a double standard of European institutions. For example, Article 7 has never been triggered against Hungary, where the governing Fidesz is part of the European People's Party (jointly with Angela Merkel's Christian Democrats).

But even if the charge holds true, hypocrisy should be seen here as a gateway drug to virtue. The EU cannot become indifferent to threats to the rule of law among its own members, especially as it tries to promote it among prospective entrants.

It is also possible that sanctions against Poland, including a suspension of its voting rights in the Council, would end up strengthening PiS by mobilizing its base against what the government depicts as foreign meddling.

True to its reputation, PiS has already responded to the EC's investigation by opening the question of German war reparations. If Poland's opposition sides openly with European institutions, it risks being labeled as unpatriotic.

But Central Europe provides counter-examples as well. During Vladimír Meciar's years, Slovakia faced exclusion from the first wave of EU and NATO enlargements because of concerns over rule of law and rising authoritarianism.

The prospect of becoming a "black hole of Europe" instead helped coalesce opposition forces and led to Meciar's ouster in 1998. A similarly stark choice facing Warsaw might change the political calculus of Poles, including PiS voters.

Yet, the odds are that we will not see a natural experiment of this kind unfold in Poland. A number of Central and Eastern European governments are in a position to block Article 7 proceedings from escalating.

As a result, the Polish fight for rule of law, democracy, and limited government will have to be fought first and foremost in Poland.

Dalibor Rohac is a research fellow at the American Enterprise Institute (AEI). He is also a visiting junior fellow at the Max Beloff Centre for the Study of Liberty at the University of Buckingham and a fellow at the Institute of Economic Affairs, London.

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