Cause and Effect in European Politics and Law

Euroscepticism Masked as Patriotism in the Poland Debate or 1:0 for Pro-Europeans

Adelina Marini, January 27, 2016

The debate on rule of law in Poland, which took place during the plenary meeting of the EP on January 19th in Strasbourg, did not achieve its goal of bringing more clarity on whether the “Law and Justice” government is following in Viktor Orbán’s footsteps, but did turn out to be the first real clash between Euroscepticism and pro-Europeanism. The situation, created by the controversial changes that the new Polish ruling majority instituted with impressive speed is not leaving the EU agenda since the start of the year, despite Warsaw’s attempts at explaining that the Union has much more pressing issues than dealing with the rule of law in Poland. This is where Warsaw is being wrong, however, for rule of law is the fundament on which the Union is built. 

Moreover, discussions so far have shown that there truly is a clash between liberalism, which is in the foundation of the EU, and illiberalism, and this is a dividing line in the EU. The three-hour clash in Strasbourg was preceded by a meeting of Polish President Andrzej Duda with European Council President Donald Tusk, who got elected to this position namely because during his two terms as Polish Prime Minister he managed to prove that the transformation from Soviet totalitarianism to a European liberal value system is possible. During his government, Poland turned into an unavoidable factor in European domestic and foreign policy. The elections of October 25 of last year, however, did change the political situation significantly and alerted European leaders that a new, much brighter Orbán-ian star is rising. 

The importance of which civilisation camp does Poland choose to stay in is so big that it placed the loyalty of the European president to Europe and its institutions on the line. During their joint press conference, held in Polish, Donald Tusk clearly sided with Poland. Whether he did this out of loyalty to his nation, or in the hope of gaining the current rulers of Poland’s support for the extension of his term in office due next year is the least of the problems. The larger issue is that he took a side, instead of being the unbiased and supranational leader that the presidential position requires. To the point of, by his statements, he even sided against the European Commission, known as guardian of the treaties, placing doubt on the legitimacy of its decision to start the yet untested procedure of appraising whether the rule of law is being threatened in a member state. 

“Poland does not have enemies neither at EU level, neither in Brussels, so I don’t want my country to be in a situation where it is criticised and scrutinised. I believe the Commission is acting in good faith. I don’t think it wants to humiliate or stigmatise Poland. But I think this could be done in other methods, not necessarily triggering this procedure”, he said and urged that “hysterical reactions”, “exaggerations”, and conspiracy theories should be avoided. Later, in front of the European Parliament, Donald Tusk changed the pitch: “[Regarding Poland] the EU has a right and an obligation to engage in a tough and open dialogue with the authorities of every EU Member State where the rule of law and norms of democracy may be violated. But, please, do not expect me to be happy and full of enthusiasm when the procedure on Poland is launched. You must understand that this is something really difficult for me”, he said, minutes before the debate with Polish PM Beata Szydło, which he did not attend.  

Our values vs. yours

The refugee crisis, the hybrid war, and the economic troubles set up a new dividing line in Europe, which doubles up with the outlines of the Berlin wall, which fell exactly because of countries like Poland and Hungary just 25 years ago. The problems with Bulgaria are easily swallowed and no one even pays attention to them. When there were problems with Hungary, the EU thought this was an isolated case, but when the symptoms of the old sickness of new members appeared in Poland as well, the EU understood that this would be another conflict frontline. The stakes were clearly articulated by Dutch Foreign Minister Bert Koenders, who, on behalf of the Council of Ministers, opened the debate in the European Parliament last week with the words: “The European Union is not only a coin, or a market, it is also a Union built on common values. The EU Treaties are eloquent and crystal clear. Article 2 states the values on which this Union is founded and reaffirms that these values are common to all Member States. However, neither the rule of law nor other fundamental values can be taken for granted. This continent brought forth the three most deadly and venomous political doctrines we know”. 

He also reminded that Poland is one of the states that got hurt the most by the battle with these doctrines. He announced that the annual dialogue for the rule of law in the EU will be held earlier this year – as early as May, exactly during the Dutch presidency. This will be one of the main priorities of the Dutch presidency

With the ambition to clear the EU’s doubts about the Orbán-isation of another member state in this extremely difficult moment for the EU, the government and MEPs of the “Law and Justice” party, member of the group of European Conservatives and Reformists (ECR), tried to explain that Poland belonged to Europe, is true to its values, and is not planning to veer eastward as there are concerns. It became clear from their words, however, that they dream of a different Europe, one which is more of the David Cameron liking – a loose union, which main function is to be a market, and not a community of values and a political union. They did not go as far as David Cameron, speaking it out loud, neither did they threaten that if their demands were not met they would put their country’s membership to a referendum, but it became clear from their statements, that Eurosceptics have won a large and very important member to their side. 

Polish PM Beata Szydło began with a reminder that the party came to power with democratic elections and with a mandate for a change. An argument that was used very often in the course of the debate, although history remembers that some of the doctrines that Bert Koenders talked about came up exactly as a result of democratic elections. Later Ms Szydło explained which values do the Polish people swear by and which values has it fought for over years on end – equality, freedom, and sovereignty. “These are the values upon which our country is being built.” It was as late as at the third spot that she explained that Poland was a part of “united Europe” and that it was very important to Poland. Further in her speech, the PM focused on the economic difficulties of Poles and all the way at the end did she explain exactly what changes were implemented and to what purpose. In her words, the controversial laws on the Constitutional court and on media were voted in as retaliation to the just as controversial changes, implemented by the majority in the previous Sejm. 

The opening statement of the Polish PM did in no way assure the leaders of most political groups in the European Parliament. Esteban González Pons (Spain) spoke on behalf of the largest group (EPP) instead of its leader Manfred Weber. “The President of my group is German and in a sense of deepest respect has asked me to take the floor so that nobody would invoke nationality as an excuse or an opportunity to evade one's responsibility”, he said, addressing the frequent accusations from members of “Law and Justice” in media that Germany is attempting to levy a hegemony. Statements are also frequent, which throw the discussion back to the beginning of the twentieth century. “It is not normal in Europe that we should have to take precautions to prevent words from becoming weapons. This is not normal”, added the deputy chairman of the EPP group. He stated that Poland was not the problem, but rather the authoritarian approach, which keeps attempting to reproduce itself repeatedly. Esteban González Pons assured the Polish PM that this is not about laws, but rather values. “You can change the law but you cannot change the values”, he concluded.

The Socialists and Democrats group leader Gianni Pittella (Italy) also assured that no one had any intention of judging or meddling in the internal affairs of the state, but it is important that the principles of European law are followed. The leader of the European Conservatives and Reformists’ group Syed Kamall (Great Britain) also had a difficult task. On one hand he had to support the government in Poland, who are a part of his group, and on the other he had to make sure he is not supporting the next authoritarian regime in the EU. He pleaded with MEPs to refrain from reactions before the ruling of the Venice Commission of the Council of Europe comes out. He put a number of questions to MEPs and the Commission about why they did not intervene in other infringement cases against the rule of law in the EU. He shared that while he was working on the audio-visual services directive he stumbled upon shocking facts, like MEPs participating in the boards of public media in a clear conflict of interests. He stated there were former national politicians present in the EP at the moment, who have called editors-in-chief of newspapers and TV channels and even demanded the sacking of journalists. 

He urged the EU to be dealing with the true crises it faces – migration, the euro area, and the low economic growth. Former Belgian PM Guy Verhofstadt, who leads the group of Liberals in the European Parliament, explained that the EU was concerned about the danger that the great majority is taken advantage of. He feels the speed with which the amendments, concerning the Constitutional court got voted in is alarming, as is the fact that these were not mentioned in the pre-election manifesto of “Law and Justice”. “I think you yourself feel that there is a problem, otherwise you would have never asked for an assessment of the Venice Commission”, said Mr Verhofstadt and expressed his concern that although Poland had pronounced anti-Russian inclination, such governance pushes the country eastward towards authoritarian rule, “towards Putin's Russia”.

“I know Mr Kaczynski doesn’t like Putin and Russia, neither [do] I - I’m on the black list - but with these policies he actually helps Mr Putin. The inconvenient truth here is that Mr Putin doesn’t like European unity. In fact, he has an obsession. He wants to destroy European unity. And what’s happening in Poland could help him in his cause”, added the liberal. Guy Verhofstadt also accused Beata Szydło for actually simply repeating the mistakes of the ones, because of whom the Poles asked for a change. The rest of the group leaders also expressed full support to the EC’s investigation. 

After the end of the group leaders’ statements, a Polish series of the Eurosceptic parties began. According to Robert Jarosław Iwaszkiewicz from the group of Nigel Farage Europe of Freedom and Direct Democracy (EFDD), the Polish issues must be solved in Poland by Poles. “In Poland we have very bad experience with foreign interference in Polish affairs”, he said, counting out  the losses of independence over the years. “We lived under several decades of fraternal help from the Russians. Now we have the fraternal help of the EU commissioners”, he said and received a wild round of applause from the Eurosceptic parties quarters, where Polish flags were meticulously arranged in front of every Polish MEP’s seat. Michał Marusik (Poland) of the Europe of Nations and Freedom (ENF) group, created by Marine Le Pen, stated that he was by no means worried by criticism from abroad. 

“It could mean that the Polish government has done something in the Polish national interest and I’m pleased about that”. He also stated that the debate was a manifestation of external interference and named the EU a “disease”. “This project has run out of steam. It is running on empty. We need a new form of coexistence of sovereign, independent, European nations. That is what we owe our countries and voters”, concluded the MEP. The debate was entered with a long speech by one of the most recognisable Polish MEPs Ryszard Legutko (ECR), who asked where did the EC gather its facts from. He accused the EU and the most critical MEPs that they did not care about the protests over the last eight years against the former government of the country. 

“Where were you when the public broadcasters were sacking journalists right, left and centre?”, he asked and stated that the double standards showed that there were states in the EU, which are more equal than others. Mr Legutko questioned the legitimacy of the mechanism for rule of law, agreed on in 2014. PM Szydło was encouraged by the demonstrated support and stated she was prepared for detailed questions. She concluded that if they were not asked, this means there are no problems. According to her, Poland does not deserve EC monitoring. “We are a sovereign state, we are a free nation”, she added and indirectly criticised EP President Martin Schulz (Socialists and Democrats), who scalded the large groups of guests in the plenary hall during the debate for their shouting. “In the Polish parliament guests in the audience in the parliament are allowed to express their support or disagreements, but this is our tradition”, she said and got applauded. Ms Szydło stated that the Polish government was not going to denounce its programme and would continue its realisation.

Liberal MEP Sophia in 't Veld (The Netherlands), who was very active in the request for debates on the state of democracy in Hungary, opposed by saying that the debate was not an interference in internal affairs. “This is about standing up for the core values of the European project”. The words of Beata Szydło aggravated Guy Verhofstadt. “You already use all the tricks of a PM. For example, by saying that you're here to respond to all the questions and nobody had questions or remarks. We have described what the problem is. Let me explain it again because, maybe, the translation was not good. You have nominated three out of five judges in the Constitutional Court and three of them with the rules you have made. You have given veto right to three members of your parties. They can block any decision by the Constitutional Court based on the new rules you have made”. Guy Verhofstadt insisted that Beata Szydło gave a straight yes or no answer to the question whether the Polish government would conform with the ruling of the Venice Commission when it gets published. 

She denied a straight answer. She stated that when she received the ruling it would be thoroughly scrutinised. Esteban Gonzalez Pons (EPP) reminded Ms Szydło that she was elected to change laws, not values. “We're talking about the rule of law here not politics”, he scalded her. The Polish PM replied to the accusations that she did not wait for the ruling of the Venice Commission before putting the controversial changes to vote by stating that the current debate was also organised prior to hearing the commission’s opinion. 

The end point to the debate was placed by First Commission Vice-President Frans Timmermans (The Netherlands, Socialists and Democrats), who is the one in the EC responsible for the rule of law. With his typical sternness he exposed all allegations, voiced by the Eurosceptics and the Polish MEPs and Prime Minister. First he approached the statements about sovereignty. “I maintain that Poland is now more sovereign, more master of its own destiny than in the thousand years before it became Member of the European Union. By pooling its sovereignty with other European nations, for the first time in its history Poland has borders that are no longer disputed by its neighbours. That is true sovereignty, Madame Prime Minister; that is a true achievement of all European nations – and Poland in the first place”, he said. 

Later he reminded that all EU member states have signed at their own free will the EU treaties, which they later ratified in their national parliaments. This way they have taken on responsibilities for upholding the rule of law. “Not just that, but even allowing the way you maintain those obligations to be judged by the Court in Luxembourg, to be controlled by the Commission in Brussels, to be discussed in the European Parliament – even to be challenged by other Member States of the European Union. So, when there is an issue of the rule of law, there is no hiding behind national sovereignty, because you have agreed in the Treaty you have signed and ratified that these issues can be discussed at the European level”, added the Vice-President and reminded Beata Szydło that it was exactly him, who asked Poland to consult the changes with the Venice Commission. 

He also addressed MEP Legutko directly: “Mister Legutko, you are in full right of having your own opinions, but sadly not of having your own facts”. Frans Timmermans ended with the words he also used during the debate with Hungarian PM Viktor Orbán last year. “You can never use democracy as an argument against the rule of law, nor can you use democracy as argument against the respect for human rights”

Bulgarian MEP from the EPP group Maria Gabriel supported the Polish position that this is an internal political debate. In an interview for euinside, she said that Poland must be approached with great care. “I feel we should approach this very carefully. In any state, when such a debate is going on, we should first of all show respect for its domestic implications. This is the principle of subsidiarity. This is a domestic political debate. European institutions can intervene only when the debate is clearly going in conflict with European directives, or European values, which we have adopted as conventional. To me the conversation is in this exact direction – a clear differentiation of the legal part, domestic and pan-European – I think this worked during the debate”.

She denied the EPP being more lenient toward Viktor Orbán, whose party Fidesz is part of its political family. “There were many critical moments with Orbán as well. We were not absolute defenders”, stated Maria Gabriel. 

And while the ruling of the Venice Commission is expected, the Polish government continues its media campaign, aiming to prove that all is well with the rule of law in Poland and that the EU has more serious problems to solve. The current Union troubles stem out exactly from not following European legislation. In this sense, there is hardly a more pressing issue than beginning to implement the commitments that were made, whether concerning refugees, or European values.

Translated by Stanimir Stoev