Upcoming elections in Poland highlight the growing gap between the country and the EU.
Following the ghost election of May 10, with 0% voter turnout, the presidential elections in Poland will probably be held in June or July. The political drama surrounding the de-facto last-minute postponement of the election raised questions about the ruling Law and Justice Party’s (PiS) understanding of democratic principles.
Despite the ban on public assembly due to the Corona pandemic, PiS for weeks tried to rush through the election by postal ballot without proper legislation. Since a public assembly ban makes effective campaigning very difficult, incumbent President Andrzej Duda, a close PiS ally, would clearly have had an advantage in the race. Arguing that the election process would not be free nor fair, some oppositional candidates called for the election to be boycotted and suspended their campaigns. The European Commission and the OSCE’s Office for Democratic Institutions and Human Rights, among others, were concerned that the electoral process would not meet international standards of democratic elections. Those concerns did not keep the government from pressing ahead; rather opposition from its coalition partner, without which the government might have collapsed, as well as logistical problems, led to the reconsideration of holding the election four days before election day. In the process, the PiS undermined the Electoral Commission and the Supreme Court. The episode demonstrates another step of the conservative-nationalist PiS to consolidate its power and undermine the democratic system, its principles, and its institutions – a development that has brought the government increasingly in conflict with the European Union.
Since the end of communism in 1989 and the subsequent democratic transition, Poland has become an important member of NATO and the EU. However, since elected to power in 2015 and again in October 2019, the PiS government has pursued a policy agenda that undermined rule of law norms, media independence, and other democratic standards in Poland. These developments led to increasingly strained relations with the EU. In contrast, the PiS government was able to maintain a close relationship with the Trump administration.
To gain a nuanced understanding of the domestic political situation and Poland’s relations with the US, the EU, and Germany, the Heinrich-Böll-Stiftung Washington, DC, in close partnership with the Heinrich-Böll-Stiftung Warsaw, invited a group of US foreign policy experts to a study tour to Poland. During the five-day visit to Warsaw and Gdańsk in November 2019, the US delegation met with lawmakers, policy experts, local journalists and foreign correspondents, NGOs, and foreign diplomats to discuss how the most controversial domestic developments have affected Poland’s relations with its key allies. To take different political views into account, the group met with both liberal and conservative experts in their field. Based on these interviews and additional research, this report summarizes the key takeaways from the trip.
PiS tries to impose its own worldview on the country
Since winning the majority in both chambers of the Parliament in 2015, the PiS government adopted (or attempted to adopt) a number of laws and that led to harsh opposition within Poland and raised concerns abroad. In simple terms, the political divide in Poland has ran in the past years between the conservative-nationalist camp, led by PiS, and a more centrist camp, led by the Civic Platform1. PiS maintains socially conservative values, with a strong connection to the Catholic Church, and protectionist economic views. It rejects liberal values such as same-sex marriage and maintains strong anti-abortion and anti-LGBTI rights stances. The liberal-conservative Civic Platform, which was in government between 2007 and 2015, also maintains primarily socially conservative values, but pursues rather liberal, free-market economic policies. While both camps seek a close relationship with the US, they differ in their perspectives on the EU: while the liberal camp wants Poland to play a constructive role within the EU, PiS frequently criticizes the EU for promoting liberal and individualistic values, and positions itself as a soft Euro-sceptic party.
In other words, PiS would prefer a “Europe of Nations” over a deeper European integration that could undermine Poland’s – just recently regained – national sovereignty and national identity (which is, from their perspective, conservative and Catholic). That also helps explain why the newly elected PiS government in 2015 outright rejected an EU decision that determined a quota for each member state for the relocation of migrants and refugees within the EU. However, PiS cannot completely disregard the EU, as the country has tremendously benefitted from EU funds in the past years, and the majority of Polish population regards EU membership as beneficiary, with 72% of the population holding favorable views of the EU.
Poland has often been portrayed as the success story of Western transformation – an image that is often associated with the Civic Platform of former Prime-Minister Donald Tusk. PiS, however, claims that while the post-Communist elites have benefitted from the economic liberalization since 1989, many ordinary citizens have been left behind. As a result, PiS has implemented a number of social policies to support low-income citizens and the elderly, as well as direct social transfers, for example generous subsidies for families with children (a dynamic that can also be seen in other countries in Central and Eastern Europe). While these measures have been criticized as populist by many observers, more PiS-friendly voices argue that Jarosław Kaczyński, the powerful PiS chairman, simply wants to transform Poland into a welfare state similar to other European states, and thus create social and economic conditions that Polish citizens deserve after a thirty year-period of transition. Others pointed out that the combination of social transfers and the rhetoric of national pride, after Poland has for years been told by organizations like the EU and others how to reform the country, is attractive to many voters.
However, as several interlocutors argued, through its conservative policy agenda, PiS tries to reshape Poland’s society according to its own values and worldview. It has for years tried to tighten abortion laws, and in October 2019, the government proposed a law to ban sex education for minors (the law has not been adopted yet). During the election campaign in 2019, PiS officials called LGBT rights an invasive foreign influence that threatens Poland’s national identity, and efforts by some local governments in conservative parts of Poland to create “LGBT ideology-free zones” made international headlines. The government has also interfered in the work of history museums to change the narratives of exhibitions. For example, the minister of culture and national heritage replaced the director of the Museum of the Second World War with a new director who soon altered parts of the exhibition. Experts therefore warn that the government is trying to re-write parts of Poland’s history.
Many of these developments have led to large street protests, and overall these developments have contributed to a growing polarization within Polish society.
The subject that has specifically gained the attention of the international community are the government’s policies to gradually overhaul the legal system and undermine judicial independence. For many years, PiS leaders have argued that post-Communist elites and patronage networks still dominate state institutions, particularly the judiciary. Jarosław Kaczyński claims that these institutions make it impossible to govern Poland and to fulfill the will of the people that have elected PiS to power. These assertions have inspired the controversial judicial reforms, which have given the government increasing control over the judiciary, and brought it in conflict with the EU.
Tensions over judicial reforms continue to strain relations with the EU
PiS politicians argue that judges were not properly re-vetted after the end of the Socialist system – a view that is also shared by impartial observers– and that a corrupt network has survived in the judicial system. The purpose of the judicial reforms, PiS claims, are therefore to “clean up” corruption in the judicial system and make it more efficient. Legislation from 2017 and 2018 included a lowering of the retirement age for judges and public prosecutors, and at the same time gave the President (for Supreme Court judges) and the justice minister (for ordinary court judges) the power to extend the period of active service of judges. As a result, several judges have been forced out of their positions and were replaced with political appointees, as watchdog organizations like the Helsinki Foundation for Human Rights in Poland have reported. The EU Commission, the guardian of the EU Treaties, is concerned that the reforms could lead to the dismantling of rule of law norms in Poland, which will have a distorting effect on the functioning of the EU as a whole. In the Commission’s view, threats to the rule of law in one member state can easily set a precedent for other countries. Since a dialog between Brussels and Warsaw did not bring significant progress, the EU Commission in December 2017 launched its first “infringement procedure” against Warsaw and referred the case to the EU Court of Justice. In its rulings of June 2019 and November 2019, the EU court ruled that the laws are a breach of the principle of the irremovability of judges and the judicial independence of judges, and thus contrary to EU law.
Another controversial part of the PIS’ judicial reforms concerns the institutions responsible for the vetting and selecting of new judges. Before PiS came to power, the majority of the members of the National Judicial Council (KRS), the committee that nominates judicial candidates, was composed of judges chosen by fellow judges. PiS legislation gave the national parliament (Sejm) the power to pick most members of the KRS, making the council no longer impartial but dependent on the legislature and executive. As result of the new selection procedures, the President of Poland will now be in a position to choose between five candidates and appoint the new President of the Supreme Court.
In addition, new legislation created a new disciplinary system and a chamber with the power to discipline judges for both their conduct and the content of their work. By pointing out that the law does not guarantee the independence and impartiality of the disciplinary chamber, the EU Commission referred the case to the EU Court of Justice in October 2019. Finally, a law adopted by the PiS government this year allows the disciplinary chamber to punish judges if they question the legitimacy of the judicial reforms, or if they engage in political activity. Arguing that the new legislation further undermines judicial independence, the European Commission has launched another infringement procedure against Poland. According to Vera Jourova, EU Commissioner for Values and Transparency, the legislation “is a European issue because (...) judges from other countries must trust that Polish judges act independently. This mutual trust is the foundation of our single market.”
The tensions between the Polish government and the EU institutions can also have long-term effects of Poland’s role in the EU. In December 2019, Poland’s Supreme Court, which has so far been critical of the judicial reforms, argued that continuing contradictions between Polish and EU law will in the longer run lead to the need for Poland to leave the EU. Within Poland, the judicial reforms led to several mass demonstrations and thus to a deepening polarization, to which some PiS politicians have contributed. For example, PiS members have allegedly been involved in smear campaigns against judges critical of the reforms.
The media sector has turned into a political battlefield
The PiS government’s media reforms have raised concerns within and outside of Poland, as well. As analysts have pointed out, Polish media is highly polarized, roughly mirroring the rift between PiS and the opposition parties. But the government’s media reforms have further contributed to the political divisions. For example, legislation from 2016 enables the PiS government to interfere in the management of the public broadcasters instead of an independent media supervisory committee. Since then, several critical journalists have lost their jobs. As interview partners pointed out, the public media today mainly presents PiS-friendly views, including reports that view migrants and the LGBT community as threats to national identity and security. Some interview partners, however, also pointed out that partial reporting was already the case under the previous governments, and is a long-standing problem in Poland.
Interlocutors, however, also warned that the government, by threatening to prosecute media outlets that oppose PiS views, is increasingly trying to control the private media, which has become the main source of news for many people. For example, the media watchdog Reporters Without Borders called on the Polish government in 2018 to stop intimidating investigative journalists. Media outlets critical of the government are also financially disadvantaged since state-owned companies withdrew their advertisements from them and placed them with PiS-friendly media companies. Observers are also concerned that PiS might try to change the ownership structure of media companies. In 2019, foreign-owned media outlets were alarmed by remarks by a deputy prime minister who argued that “a self-respecting nation and a self-respecting people cannot allow most of the media to be in foreign hands.” The rhetoric over the “repolonisation” of the media by some PiS members in 2018 led to a diplomatic row with the US over TVN network, a subsidiary of the US media company Discovery Inc., and which observers regard as largely in favor of the oppositional Civic Platform. After the PiS government attempted to prosecute two journalists of the network, Georgette Mosbacher, US ambassador to Poland, openly expressed concerns about media freedom in Poland. Fearing that it might damage a close relationship with the Trump administration, the PiS government eventually backed down on the issue.
PiS government was able to deepen the relationship with US under Donald Trump
Since Poland re-gained its sovereignty in 1989, all governments have sought close relations with Washington. The US is regarded as the only country that has the military power and determination to defend Poland in a potential conflict with the Russian Federation. The PiS government’s efforts to maintain strong ties with Washington, especially since the election of Donald Trump in 2016, are therefore not surprising. However, it could be argued that the strong orientation towards the US came at the expense of a close relationship with the EU and key partners in Europe, including Germany.
The PiS government and the Trump administration share conservative values and political beliefs, including fears that multilateral organizations undermine national sovereignty and national identity. In contrast to most other EU countries, President Trump enjoys rather broad support in Poland, particularly among PiS supporters. According to a recent study by the Pew Research Center, Poland has the most favorable views of Donald Trump among all European countries, with 51% of the respondents having confidence that the US President will do the right thing regarding world affairs. As an interview partner has argued, the narrative of a special relationship between the US and Poland boosts Warsaw’s confidence and almost has a healing effect on the population after decades of suppression under the Soviet Union.
The Trump administration seems to look at Poland primarily from a security perspective. In contrast to members of the US Congress, President Trump, in meetings with Poland’s President Andrzej Duda or members of the Polish government, has apparently not addressed rule of law issues in Poland. During his visit to Poland in 2017, Donald Trump praised Poland as the “defender of Western civilization” without mentioning concerns about democratic standards in the country. The PiS government perfectly understands the priorities of the Trump administration, for example in the NATO context. Indeed, Warsaw meets the NATO benchmark of spending at least 2.0 percent of its GDP on defense and plans to increase this number to 2.5 percent by 2030. In the area of defense procurement, the PiS government has favored US defense companies over European competitors and purchased the Patriot Missile Defense System (for almost $5 billion) as well as 32 F-35 fighter jets from US manufacturer Lockheed Martin. In return, the US has frequently declared its commitment to Poland’s defense and has since 2014 maintained an almost 5,000 strong military presence in Poland in the framework of NATO’s Enhanced Forward Presence. In June 2019, President Trump announced that another 1,000 US troops would relocate to Poland, likely from Germany.
Currently the US troops are deployed on a rotational basis (“continuous but rotational”), but there have been discussions of a permanent US base in Poland. While the PiS government has offered to contribute $2 billion to the establishment of the so-called “Fort Trump”, several NATO members (including Germany) argue that a permanent US base in Poland would violate the NATO-Russia Founding Act of May 1997 and further increase tensions with Russia. Interviewees in Poland, however, doubt that the US base is a realistic option because the Polish government does not have the financial resources to pay its proposed contribution. Besides defense relations, Poland and the US have also expanded their energy relationship in the past years, and Poland has received increasing volumes of LNG imports from the US.
Both Donald Trump and the PiS government share suspicious views of the EU. These reservations are also influenced by their views on Germany, one of the EU’s most powerful member states. While Donald Trump has regularly criticized Germany’s trade surplus and reluctance to invest more in its defense, PiS politicians fear that Germany’s ultimate goal is to dominate the EU at the expense of the smaller member states. In the past years, Poland has therefore invested in closer cooperation with neighboring Hungary, Slovakia and the Czech Republic in the framework of the Visegrád Group.
While Germany and Poland’s economic relations have significantly intensified since 1989 (Germany is Poland’s largest trade partner), their political relationship has gradually derailed and is shaped by mutual distrust today. The PiS government was particularly frustrated with Angela Merkel’s policy towards refugees and asylum seekers in 2015, and Germany’s push for an EU quota for the distribution of migrants within the EU. PiS was frustrated that Poland was obligated to accept new migrants who had been “invited” by Merkel, and refused to implement the fixed-quota scheme (similar to Hungary, Slovakia and the Czech Republic) citing amongst other reasons, that Poland already hosts over a million refugees and migrants from Ukraine due to the war. Warsaw – and not only the PiS government – is also frustrated that the German government supported the Nord Stream 2 gas pipeline project between Russia and Germany for years. Berlin, on the other hand, has made little efforts to mitigate Warsaw’s suspicions that Germany intends to become the dominant energy hub in Europe. Both the Trump administration and the US Congress share the Polish concerns on this issue.
While tensions with EU will likely continue, the relationship with the White House might change
With the ongoing tensions with the EU institutions, some interlocutors warned, the PiS government risks becoming isolated within the Union, with only a few member states like Hungary remaining on its side. Both countries could also be left out of important EU decisions in the future. The relationship with Brussels as well as other member states could become even more strained during the ongoing negotiations over the next EU budget cycle (for the period 2021-2027). The Polish government would like the EU budget to increase, an idea that several member states who are net contributors to the budget reject. Warsaw, on the other hand, opposes the EU Commission’s proposal to cut to the EU’s cohesion and agricultural funds, from which Poland has significantly benefitted for years. An even more sensitive topic is the proposal of the Commission to link the disbursement of EU funds to the member states’ record on upholding the rule of law. Poland has been the largest beneficiary of EU funding in the past years, and such a “rule of law conditionality” might become an effective instrument to hold the country to democratic standards. The negotiations over the budget, which have to be concluded by the end of the year, could also lead to further deterioration in Poland’s relations with Germany. Berlin will take over the EU Presidency in the second half of the year and will serve as main moderator in the negotiations process.
Warsaw’s relationship with Washington may also go through a significant shift. Having banked primarily on a close relationship with the Trump administration while ignoring bi-partisan calls by members of Congress to recommit to the respect for democracy and rule of law, the PiS government bears the risk of a rude awakening if Joe Biden wins the presidential election in November. While a Biden administration would continue the US commitment to Poland’s defense in the NATO framework, he would likely more openly criticize rule of law and media issues in Poland than the current administration, and side with the EU on these issues.
1. The other major parties in the Polish Parliament since the October 2019 elections are the “Democratic Left Alliance”, the Christian-democratic “Polish Coalition”, and the right-wing “Confederation”.