The EU Should Embrace Poland’s European Role

As the spectre of war looms over Europe once again, the European Union is busy battling with its own issues. The European Court of Justice has rejected the Polish and Hungarian challenge to the legal validity of the new rule of law mechanism and found it to be legally solid and compatible with the EU treaties. Poland and Hungary now face the reality of being denied their share of the 2021-27 EU budget. This is a dangerous development for all of Europe. Tensions between Eastern and Western Europe complicate internal EU relations during the worst crisis the continent has faced since the end of the Cold War. 

It is fair to say that the relationship between Warsaw and Brussels is at its lowest level since the EU’s enlargement into Central and Eastern Europe in 2004. Since coming to power in Poland in 2015, the nationalist-conservative party, Law and Justice, has pursued a programme of judicial reform with the aim to fix what it sees as a system plagued with corruption and communist-era mentalities. However, the European Commission says the changes undermine fundamental EU values in democracy and the rule of law. 

One of the most controversial measures Law and Justice has proposed is the establishment of a disciplinary chamber. The new body would give ministers the authority to punish judges for the content of their rulings. The Polish government argues this is needed to root out the remnants of communist influence in the courts. The EU, however, sees Poland’s disciplinary regime as a direct threat to the independence of the judiciary. Last October, the Polish constitutional tribunal defied an EU court ruling on the appointment of supreme court judges in stating that parts of EU law are incompatible with the Polish constitution. 

Poland sees its judicial reforms as within its rights as a sovereign country to uphold the supremacy of its constitution. The Polish prime minister, Mateusz Morawiecki, argued that EU institutions exceeded the powers granted to them by the member states in the founding treaties of the EU. But Ursula von der Leyen, the European Commission president, vowed to “punish” Poland for “calling into question the foundations of the European Union.” The ECJ ruling in favour of the legality of the rule of law mechanism represents a significant transfer of power away from the member states and towards the Commission. The conditionality mechanism gives Brussels the authority to withhold EU payments to member states who violate the rule of law. This centralisation of power is likely to sow distrust between Warsaw and its EU partners. 

Warsaw has tried to reach a compromise with the Commission over the rule of law issue and refocus the EU’s attention on the Ukrainian crisis. The Polish president, Andrzej Duda, said his country “does not need this fight” with the EU. Mr Duda brought forward a bill that would replace the disciplinary chamber with a Chamber of Professional Responsibility. But this is unlikely to meet the Commission’s requirements on judicial independence. The proposed change to the disciplinary regime includes a power to test whether or not a judge was impartial. 

The poor state of Polish-EU relations could not have come at a worse time. Russia has positioned combat-ready troops on the eastern border of Ukraine and made military movements into neighbouring Belarus. Russia insists it has no intentions of invading and even claimed to be withdrawing some forces. However, Jens Stoltenberg, the NATO Secretary General, cautioned against following Moscow’s statements as he arrived at a summit of NATO defence ministers in Brussels. 

Despite rumours of a “Polexit”, a plausible Polish exit from the EU, following the challenge to the supremacy of EU law, Mr Morawiecki has always insisted his country remains “a loyal member of the EU.” The Polish prime minister is trying to position himself as the voice of common sense in the rule of law dispute with Brussels. “Naturally, the Commission wants to assume more competencies, but it is the member states who are the masters of the EU treaties,” said Morawiecki in a BBC interview. Even Olaf Scholz agreed with his Polish opposite number on a “swift” solution to the legal feud in his first visit to Poland since succeeding Angela Merkel as Germany’s chancellor.

The entrenched tensions between Poland and the EU is concerning given the much wider threat facing the entire European continent from Russia. The Baltic States are in a particularly vulnerable position as Russian forces lie only a hundred kilometres away from the Suwalki gap, which is a hard-to-defend stretch of land lying between Lithuania and Poland. This shows that the Russian mobilisation on the eastern Ukrainian border is not an isolated event, but part of a strategy of using military intimidation to force concessions out of the West. In addition to a pledge from NATO never to admit Ukraine, Russia demands that the alliance returns to its pre-1997 borders before Estonia, Latvia, and Lithuania were admitted. The EU cannot afford to alienate Warsaw as Russia embarks on a comprehensive effort to rewrite the post-Cold War European security order.

France’s president, Emmanuel Macron, tried to strike a peace agreement in a five-hour-long discussion with his Russian counterpart in Moscow. The French leader said he had received ”personal reassurances” from Vladimir Putin that there would be no further escalation during a meeting with the Ukrainian president, Volodymyr Zelenskyy, in Kyiv. However, Dmitry Peskov, the Russian president’s spokesperson, said the talks with France failed to satisfy Moscow’s security concerns. In the meantime, Jake Sullivan, the US national security advisor, says the risk is now “high enough” for a fresh attack on Ukraine to take place.

This poor outcome for French diplomacy brings into sharp focus the need for the EU to act as one on the crisis. There is a problem over whether Emmanuel Macron even has the mandate to secure a peace deal with Mr Putin. The Helsinki Accords of 1975, signed by the United States, Canada, and all European states (with the exception of Albania), recognised the inviolability of Europe’s postwar borders. If the French president were to reach a deal with Russia, it would call into question the Helsinki Final Act as a fundamental pillar of European security. 

Germany and France have so far concentrated their efforts on pushing forward the implementation of the Minsk agreements. Annalena Baerbock, the German foreign minister, reiterated her country’s willingness to revive the Normandy process during a press conference with her Russian counterpart, Sergei Lavrov, in Moscow. The French president also proclaimed the Minsk protocols as “the only path” towards finding a peace settlement. 

The Minsk agreements, which were signed in 2014 and 2015, are an attempt at a diplomatic resolution to the crisis in Ukraine. But seven years on, Minsk is yet to be implemented, due to the conflicting Russian and Ukrainian interpretations of the accords. Moscow wishes to see the terms of holding local elections and amending the Ukrainian constitution to grant the pro-Russian separatist regions of Donetsk and Luhansk implemented first. Kyiv says the withdrawal of Russian forces from the occupied territories and the restoration of Ukrainian control over its state border must precede these political terms.

The Russian-favoured view of the Minsk agreements would effectively give Moscow a veto over decision-making in Kyiv, such as initiating the process of NATO accession. This threat to Ukrainian sovereignty elevates the strategic role of Poland within the European Union. A meeting of the Weimar Triangle, which aims to boost cooperation between France, Germany, and Poland, was held in February. The first in two years, the summit signals the importance of Polish involvement in the efforts to advance Western interests in Ukraine. Like Ukraine, Poland bears the trauma of domination and subjugation under its big European neighbours. 

Poland’s ability to “create a better understanding for its Western partners” on the threat Moscow poses stands in stark contrast to Hungary, which too is embroiled in a rule of law dispute with Brussels. The Hungarian prime minister, Viktor Orban, has forged strong ties with Mr Putin. Mr Morawiecki’s wholehearted support for Poland’s EU membership also distinguishes himself from his Hungarian counterpart’s extreme rhetoric on illiberal “Christian democracy.” It may therefore be unwise if the Commission approaches the issue of rule of law reform in Warsaw in the same way it deals with it in Budapest. 

The ECJ’s ruling on the rule of law mechanism means it is likely the feud between Poland and the EU will drag on even further. But ostracising the Polish government would make it almost impossible for it to build trust with Berlin and Paris at a time of crisis. Instead, Brussels would be actively seeking to escalate tensions with one of the biggest economies in the EU over a purely domestic Polish issue. Such internal EU distractions can only work to Russia’s advantage as it tests the limits of Western resolve.