© Financial Times

This is an audio transcript of the Rachman Review podcast episode: Poland’s challenge to the EU

Gideon Rachman
Hello and welcome to the Rachman Review. I’m Gideon Rachman, chief foreign affairs commentator of the Financial Times. This week, we’re looking at the crisis in relations between Poland and the European Union. Poland’s one of the EU’s five biggest nations, but it’s on a collision course with the European Commission in Brussels and with most of the other large EU countries over some very fundamental issues — democracy, the rule of law and the flow of billions of euros to Poland. My guest this week is Catherine de Vries, a professor of political science specialising in the EU and based at Bocconi University in Milan. So, can the Polish crisis be resolved? Will Brussels back down? Or might Poland even leave the EU with a Polexit following on from Brexit? Poland lies at the eastern frontier of the European Union, bordering Belarus and Ukraine. And this week, that front has been under pressure as the Belarusian government has deliberately driven refugees towards the Polish border in an apparent effort to create a new migration crisis for the EU.

[NEWS CLIP PLAYING]
Today’s mass attempt to cross into the EU here is the biggest so far and is more reminiscent of the scenes on the Greek-Macedonian border during the Syrian migrant crisis more than five years ago. President Lukashenko, who has enjoyed Russia’s support, claims all this is the EU’s fault. But the European Union says he’s weaponising migrants.

Gideon Rachman
Facing an emergency on its eastern border, the Polish government’s appealed for solidarity from its EU partners. But that appeal’s complicated by the fact that just two weeks ago, the Polish prime minister Mateusz Morawiecki was accusing the EU of blackmail.

Mateusz Morawiecki
It is unacceptable to talk about financial penalties. We will not have EU politicians blackmail Poland.

Gideon Rachman
The Poles are outraged that the EU is threatening to withhold funds from Warsaw after the Polish constitutional court challenged the supremacy of European law, which is fundamental to the way the EU operates. But the many critics of Poland within the EU system are just as adamant. Here’s the president of the European Commission Ursula von der Leyen.

Ursula von der Leyen
I am deeply concerned. This ruling calls into question the foundations of the European Union. It is a direct challenge to the unity of the European legal order.

Gideon Rachman
So when I met Catherine de Vries in her university office in Milan earlier this week, I started by asking her why this particular dispute is regarded as so important to the future of the EU.

Catherine de Vries
Well, I mean, first, to kind of give it a bit of a context of what exactly happened, I mean last month a Polish constitutional tribunal put a kind of a bomb under the European legal order by saying that parts of the constitution of the EU would not be compatible with the Polish constitution. That was not the view of Polish courts before so it was clearly a change. This is a latest escalation in a relationship between the Law and Order Party, a rightwing conservative party in Poland that, since its rise in 2015, has done a lot of things to politicise the judiciary in Poland, and that has angered many European officials and also many other member states.

Gideon Rachman
Catherine, just briefly, why is the Polish court saying that Polish constitution is incompatible? Why does that matter? Why is that important?

Catherine de Vries
Well, the real crucial issue about the European Union and (inaudible), is its legal order, and the integration has really been pushed forward through more legal, let’s say, authority in the European court. And what you have, basically, is you have two legal orders — a national and European legal order. And if there are issues that are to be resolved between these two, ultimately, there has to be a court of last resort, and that’s for EU constitutional matters needs to be because the treaty base is that, say, the constitution of the EU, the European Court.

Gideon Rachman
So basically, it’s the supremacy of EU law that Poland is challenging.

Catherine de Vries
Exactly.

Gideon Rachman
And how long has this been building up? How’ve we got to this point?

Catherine de Vries
Well, this has already been going on for quite a while. The Law and Justice Party in Poland really has initiated a lot of reforms that have politicised the judiciary. For example, judges that are critical of the government face the supreme court’s disciplinary chamber that is packed with government loyalists. And that’s also been an issue that was attacked by the EU, and actually, there was a ruling by the European court that that tribunal should be dismantled. So it’s really an ongoing issue of a lot of reforms to politicised judiciary, where the Polish government has been on a collision course with Brussels.

Gideon Rachman
Yeah, and so I suppose Brussels would argue that this is the case about preserving the rule of law and democracy in Poland, and Poland is phrasing it, this is about Polish sovereignty.

Catherine de Vries
Exactly. So I think from the kind of EU perspective, this is very much about what we ultimately have to have a legal basis and a legal court that settles issues on the single market. Other issues leading to EU treaties and ultimately there has to be a European court. And this is part and parcel of the legal order, which effectively is part and parcel of European integration. What the Polish court is saying it’s been trying to rally different member states behind it is basically saying, well, there’s been this kind of steady integration by stealth and actually more and more the EU is using that kind of legal framework to undermine sovereignty of member states. And it’s not just us, it’s also other member states that are uneasy with this level of supremacy of EU law vis-à-vis national law.

Gideon Rachman
I mean, I suppose that could be true. I mean, it is true. But equally, that does seem to be, from what I know, it’s happening in Poland. And then on to bad faith in the argument because they are basically packing the judiciary to support the ruling party.

Catherine de Vries
Exactly. I mean, some will say that this is kind of a smokescreen of the Polish government to deepen their own authority within Poland and especially get their loyalists in institutions, and actually the European Union and the European court of justice has been a brake on that. So this is more about the politics of it and it is really about the legal order of it. Another reading of this would be to say, well, no, there is also some truth to the Polish argument in the sense that we’ve seen the German constitutional court having issues with purchasing programme of the European Central Bank. We’ve also seen leaders, for example, in the upcoming French presidential election, that have also put forward the issue of supremacy of EU law and ultimately also, of course, Brexiters that have, that have raised.

Gideon Rachman
Yeah, let’s come back to that in a second. But just, I mean, obviously, the rule of law, as Brussels sees it, is at stake. But equally, the other thing that people always say is that the European Union is a union of democracies. And if the opponent is using this as a smokescreen to essentially undermine their own democracy, take the Law and Justice Party and, you know, for the foreseeable future, that too is a fundamental challenge to the EU, isn’t it?

Catherine de Vries
Yeah, I know, exactly. It’s actually something that was brought up by the Belgian prime minister in a recent speech that he gave at the College of Europe, which has gone kind of viral on on social media. This is really about the core values of the EU that are enshrined in the treaties. Democracy, human rights, rule of law, and they all go together. The Dutch prime minister Mark Rutte has been very strong on this particular issue. And also, I think part of that argument is not only about it’s key to democracy, but we’re doing things together at the European level. For example, a recovery fund, post-corona, a green deal and so on. If some member states’ tax money is going to that level, it needs to be spent well. And it’s not only about implementing it well, but it’s also making sure that it’s not used by a government, for example, to reduce the rights of certain minorities within a country or LGBTQ people or opposition. So I think this issue about democracy is, according to many member states, intrinsically linked to rule of law.

Gideon Rachman
Yeah, so it’s very fundamental issues: rule of law, democracy, that’s what the EU is meant to be all about. They’ve now got this confrontation. Can you see how they get out of it?

Catherine de Vries
Yeah. Well, I mean, it takes two sides, right? The first is the Polish side. So what, what is, what is the Polish government going to do? I mean, will it double down or will it in some ways seek compromise? Well, a lot of the rhetoric that’s coming out of Warsaw now sounds more doubling down than anything else. And I think doubling down is quite tricky because there now the discussion in Brussels is very much about how do you deal with this? So one thing would be to freeze funds. There has been, of course, the move towards making EU funds not just a recovery fund, but also just structural funds that flow naturally in a normal budget in the EU, conditional on rule of law provisions. That’s maybe also part why the Polish government is bringing the issue up now because of that particular ruling. The commission has been a little bit reluctant to do it because it’s also politicised the commission. It will have to do it just by the law. It’s going to be forced to do it in 2022. And then there is a kind of a group of people to say, well, OK, that’s what we need to do, but we need to be very careful. And I think, not to say that I personally agree with the more kind of appeasement strategy, but I think the argument is the following: it’s been specifically strongly opposed by the German chancellor Angela Merkel, where basically it’s the idea that if we starve Poland of funds, this might actually really tip the balance in favour of the law and order government where Poles would see, well actually what the EU is doing is punishing us for something that our government did and actually plays into this bogeyman that sometimes the Polish government is trying to make of Brussels by saying, oh, they’re dictating everything that we do. So it’s a very kind of a devil’s dilemma for the commission to deal with it.

Gideon Rachman
Yeah, I mean, I suppose Merkel’s argument, which you alluded to, is that ultimately this is, I suppose, partly political dispute, but it’s also diplomatic dispute and that relations with Germany and Poland are crucial and therefore you can’t deal with it in a narrowly legal sense. Do you think that arguments like this have much traction?

Catherine De Vries
Well, what you hear of other member states, especially the ones that I that I talked about, Belgium and the Netherlands, for example, they were very strong on opposing that particular view. I think, of course, it’s not entirely surprising that the German government has taken this view for a long time. But one because the German economy is very interlinked with the Polish economy and of course, with the Hungarian economy. Think about German carmakers. The other element is also that Germany itself, or at least the German constitutional court’s relationship to the European court, has been conflictual and contentious. So in that way, moving on that path is maybe also particularly difficult for Germany. The other side would basically say it’s like you cannot really appease those that want to undermine rule of law because you give them one finger and they take the entire hand, ultimately. And I also think that the Polish government is really trying to use the German court decision and other issues that are at play in order to back their position.

Gideon Rachman
Sure. And do you think Germany, because of its geography and its history of an invasion of Poland and so on, is also more likely to be reluctant to move towards a confrontation with the Polish government of any sort?

Catherine de Vries
Yeah, I mean, it will be very interesting to see what happens under a new German government. So there are some voices that, especially the Green party, which will be part of this coalition, or at least it looks like it will be, it has been very, very forceful at the European level within the European Parliament (inaudible) to move on this conditionality — the rule of law mechanism — at the European level, and we’ll see a bit of a change in tune. But I definitely do think that because of the historical relationship and also because of the level of interwovenness between the German and the Polish economy that some Germans are like, well, maybe we shouldn’t rock the boat. The issue, of course, is if we come back to the kind of discussion at the beginning, this is so consequential for the EU because it really is to settle ultimately legal issues on the single market, legal issues arising in other areas of the EU that basically how much can you compromise on a legal order?

Gideon Rachman
And of course, it’s not just Poland. I mean, there is this sort of Polish-Hungarian alliance. I suppose the fear would be that the rot would spread essentially.

Catherine de Vries
Yeah, exactly. And I think also that maybe has been the analysis of some that the appeasing of Hungary maybe has emboldened the Poles to kind of move in to say, well, we’re going to go a slightly different route. And I think the issue of Hungary also complicates how the EU can deal with Poland because certain parts of the treaty base where you could maybe strip Poland of its treaty rights and it’s the so-called Article 7 procedure that needs unanimity within the council. And it’s going to be very difficult when the Hungarians are always going to vote against. And I think in other element were also maybe some in Brussels are a bit reluctant to enforce some of the mechanisms that they have or some of the instruments that they have to deal with Poland is the fact that they have the idea, well, if we antagonise the Polish government even more, some areas of policy like the European green deal, like other areas where we need unanimity in the council on certain things, you know, we’ll basically be . . . 

Gideon Rachman
The puzzle just . . . 

Catherine de Vries
Exactly, exactly. And then, and then we’re basically going to get into a stagnation of European policymaking so that’s another consideration, at least, for the commission to think this through.

Gideon Rachman
Yeah, I mean, so in some respect, Poland is playing the role the British used to play when they were in, which was threatening vetoes. But I suppose Brexit, although a big blow to the EU, at least legally, is a much clearer situation than the one we’re now faced with.

Catherine de Vries
Yes, yes I definitely think so. I mean, of course, there are issues in the Northern Ireland protocol, which also relates to the issues that we talked about. But I do think that in the Polish discussion, there are some similarities with the British case, but I do think that it’s slightly different in Poland that you see the public support for the EU is very high. And that partly has to do with the enormous funds that Poland received, and that GDP growth was enhanced through those European funds. So that’s a different discussion in Poland. And also, the Polish government itself has always made very clear that they are not on the way out, but they want to shake the EU in a slightly different way — a group of states instead of a what they would call supranational institutions. So I think there are some similarities, but there are also clearly some differences.

Gideon Rachman
So Poland is standing its ground and it’s making, as you say, this sovereignty based argument. Even if there’s an element of bad faith in it, you were suggesting that there are quite a lot of other forces within the EU, or maybe opposition parties in other countries that might respond to that. For example, even in the French presidential election, you see quite surprising arguments about, I think Michel Barnier, who was, after all, the kind of, if I can call him, prosecutor against the UK, has been talking about maybe constraining the role of the European court.

Catherine de Vries
No, exactly. The discussions have been about the supremacy of the European court, also Zemmour, someone who’s moved up in the polls, kind of more on the far-right candidates and that is creating opposition towards the more reformist stance of Marine Le Pen, who’s the head of the National Rally. So you definitely see it within the French presidential election. But I also think this is part and parcel of something that I’ve worked on where we really see political entrepreneurs, those that are trying to unseat the current governments or the current incumbents to choose a particular issue where they say, for example, that we don’t want to have migrants being forced down our throats by the commission, which was a discussion that you’ve heard very much in Hungary and Poland, other elements about rule of law and how much sovereignty you should give up to the European level. And these politicians are also using this particular sovereignties argument or sovereignties moment, maybe for their own national gain and not very different, actually from what Law and Order is doing within Poland. So I do see that it’s about some issues of critique towards how much supranational co-ordination do we want and how much national independence do we want or sometimes you do not want. But it’s also part of a political game where entrepreneurs are, you know, know exactly which buttons to press for kind of conservative, a population that is also a bit wary with first steps of integration.

Gideon Rachman
So you have two kind of forces if you are thinking about it. You have these rising sovereignty-minded forces exemplified in Poland, but also at the same time the EU, partly because of Covid, has been moving towards deeper integration, yeah?

Catherine de Vries
Yes, yes. And actually, it’s quite interesting that some of the parties, for example, the Dutch prime minister, that was quite wary of the recovery fund and that level of integration that we saw in the corona period, is actually now very strong moving on the rule of law. And there he’s actually really a proponent of the single market and says, well, we need to preserve this legal order and democracy within the EU in order to foster further progress and growth within the EU. So you also see a little bit of nuances within the kind of critique about the EU that some actually have the idea, no, this really needs to become a sovereign group of states that may be is that the Polish government, the Hungarian government, you see it maybe within some of the French presidential candidates or soon to be presidential candidates, Salvini in Italy, that have this idea of a more sovereigntist league. Then you have those that, you know, at the commission and very pro-EU parts that want to move European integration forward. And then maybe you have this middling category that says, well, certain parts we’re a bit worried about, but other parts we actually think, you know, it’s really important to defend the EU for those key values that it has been enshrining. That’s maybe a bit the Dutch position, that’s a bit in between. I do think that even that sovereigntist position is maybe less articulated, even though it looks quite extreme within the kind of Polish situation right now. But I do think it’s kind of soft and a little bit away from exit or leaving the EU because of the Brexit experience. Actually, the interesting counterfactual would have been what would have this looked like when we were not in still negotiations with the United Kingdom? And I do think that kind of Brexit and the way that’s perceived on the European continent is not necessarily a successful project, at least not yet. Even some more Eurosceptic political parties and political entrepreneurs are softening their tone away from this exit scepticism to a more kind of remain scepticism where they want to change the EU to a mould that they can understand and more sovereigntist. But I think you’re right for the EU that latter element actually is more problematic than dealing with a member state that you can, at a certain point, say, well, it’s a third country and we negotiate and that country is out of the club with this current situation of demand for changing of rules, that is a real difficult issue for the EU to deal with.

Gideon Rachman
Yeah, so finishing this second by asking you how you think the specific situation with Poland is going to be resolved, but my understanding of the EU is that really ever since it got going with, you know, a bit of zigging and zagging, basically it’s moved towards more integration. Do you think that’s still likely to be the path? Or do you think that actually even at the Poles are very imperfect champions of the sovereignty-based reassertion of the nation state that it’s possible that actually powers can be taken back from the EU or nation-states will reassert themselves? If you have to guess how this particular battle is going to evolve over the next 10, 15 years, where would you put your money?

Catherine de Vries
Well, I find it a difficult question, but I think what definitely has changed now is that the conflict over how much policy you would like to co-ordinate at the European level or how much sovereignty you want to share with the European level is a hot conflict. So the idea that you can have some integration through the back door, you can use the European court of justice to push certain things through, I think that idea of what political science have called masking and shielding integration from the public eye through more technocratic governments, I think the rules to do that is increasingly limited. But the interesting side effect you also have of that that if you start politicising the EU more, probably the reaction in Brussels will try to depoliticise a lot of things and move them into more technocratic forms of integration, which then only fuels this fatigue of well, the EU is not democratic enough or in part is not listening to member states enough. So I think I find it difficult to say where I would put my money. But I think this will really be very different than periods of integration that we’ve seen before, and it’s going to crucially shake the room to manoeuvre in Brussels.

Gideon Rachman
And coming back to the specifically Polish thing. I mean, it seems to me that Poland, on the face of it, is playing quite a weak hand. I mean, they are, OK they’re one of the bigger nations, I think they are one of the big six in terms of population, but they are very dependent on EU funds and even geopolitically, you know, there’s Russia to the east of them. They are dependent, in security terms, on European solidarity. So are they not likely in the end to back down, do you think?

Catherine de Vries
Yeah, I mean, that’s the million dollar question. What would really happen in Poland? It’s also not to say that some analysts of Polish politics will say, well Law and Order is also doing this because its power base is less clear than it was in the past, or less strong than what it was in the past. And of course, we’ve also seen that the opposition has been quite vocal. We’ve seen demonstrations against, not just this particular ruling on EU law, but also about abortion and other areas that some more progressive forces in Poland have issues with. Donald Tusk, the former council president, is now also moving back into Polish politics, so that game is not necessarily set. The other thing I think indeed, is that the Polish government, even now, is not necessarily portraying a clear image as to what it wants, because if you think about the kind of Polish- Belarus border problem with the issue of migrants on that border, actually, Poland is calling for member states to support Poland and defending the EU against Lukashenko and Belarus. So in that way, I think they’ve also been very clear in saying that it’s not a Polexit. It’s not that we want to leave the European Union we are in within the EU, but we need to have a discussion about how far the legal order can go. But I mean, my own interpretation of this is that it’s very much about domestic politics in Poland. So my hunch would be that ultimately we’re going to see some kind of muddling through that basically, we’re going to see a little bit of a toning down some of the language. And because indeed, I think it’s not in either interest to really play this to the full. But, you know, with that in mind, I think a lot of people wouldn’t have expected the Polish government to push it as far as it did. So I guess it really is looking for some concessions from Brussels.

Gideon Rachman
I should leave it there, but just the last thing on that. The problem it seems to me, though, is that the question of the rule of law, who is supreme, is a very difficult one to fathom. I mean, either the EU law is supreme or Polish law is.

Catherine de Vries
Yeah, I mean, ultimately, the question of supremacy of EU law is very difficult to fudge. But I guess the things that you could fudge is what do you do in response to that? So would you starve Poland of money or how are you going to deal with that? But I think ultimately the Polish government has to take back some of its rhetoric and some of its reforms in order to meet the demands of the EU side.

[MUSIC PLAYING]

Gideon Rachman
That was Catherine de Vries in Milan, ending this edition of the Rachman Review. Thanks for joining me, and I hope you’ll be able to join me again next week.

This transcript has been automatically generated. If by any chance there is an error please send the details for a correction to: typo@ft.com. We will do our best to make the amendment as soon as possible

Get alerts on Transcript when a new story is published

Copyright The Financial Times Limited 2022. All rights reserved.
Reuse this content (opens in new window) CommentsJump to comments section