POLAND’S CRISIS OF 2015-16

On 13 January 2016 for the first time in its history since the founding treaty of Rome in 1958, the European Union (EU) initiated a formal investigation against one of its member states, i.e. Poland. The investigation is intended to question whether new laws introduced by the government of the conservative Law and Justice party (Prawo i Sprawiedliwość, PiS), in charge since November 2015, are breaking the EU democracy rules and whether they are in accordance with the rule of law and fundamental democratic values. The PiS is led by Jarosław Kaczyński, former Prime Minister of Poland (2006–2007) and twin brother of the late Polish president Lech Kaczyński, who died in a still not fully clarified plane crash in Russia in 2010. As the EU’s First Vice-President and Commissioner for Better Regulation, Inter-Institutional Relations, Rule of Law and Charter of Fundamental Rights Frans Timmermans announced, the goal of the EU-procedure is to conduct a ‘structured dialogue’ (European Commission, 2016; Pop, 2016) with the current conservative Polish government under premier Beata Szydło according to the ‘Rule of law framework’ of the European Union introduced in March 2014 (European Commission, 2014). ‘Making sure that the rule of law is preserved in all member states is a key part of the Commission’s responsibilities’, Timmermans declared (European Commission, 2016). And he added in a somewhat paradoxical sentence typical of the ‘prudent interventionism’ of the EU: ‘That has nothing to do with politics’ (Reuters, 2016). But certainly the EU intervention has something to do with politics, as it touches upon the core of the EU politics, in particular upon the future role of the Central and Eastern European (CEE) nations within the Union, and in turn upon the role of the EU in the further development of these countries.

Indeed, the step of January 2016 by the European Commission, the main supranational institution of the European Union (and a functional equivalent to a formal EU government) to initiate a formal investigation against one of its full member states, is unprecedented. It came after Szydło’s government in December 2015 passed controversial laws enabling the government to directly appoint the heads of public TV and radio. At the same time, a new law of December 2015 changed the set-up of Poland’s Constitutional Court and its rules of decision-making, forcing it, among other things, to make decisions exclusively with a two-thirds majority, which makes it de facto difficult for the court to act at all. These two moves have been seen as disempowerment of the check-and-balance principle based on the independence of institutions vital for democratic pluralism by many observers and parts of the citizenry. The new law on the Constitutional Court was signed by President Andrzej Duda in December 2015 but has been disregarded by the Constitutional Court itself, who in a decision of March 2016 ruled the law to be unconstitutional. As a response, the Szydło government decided not to publish the March ruling of the Constitutional Court, as it took place in a set-up determined by an older law on the Court. Both steps paved the way for an ongoing constitutional crisis in Poland. In addition, the so-called ‘Venice Commission’ of the Council of Europe – i.e. the ‘European Commission for Democracy through Law’ which is the Council of Europe’s advisory body on constitutional matters of its member states – who explored the issue on the invitation of the Polish government, questioned some of the contents of the new law on the Constitutional Court, thus giving the opposition additional arguments against the government.

After the announcement of the EU-investigation, a third controversial law was passed in February 2016: The new Polish police law which allows the law enforcement agencies much broader surveillance measures (BBC, 2016a). According to the new law, also signed by the President, the police and other security services are enabled to collect digital and phone data of citizens without court order, if they judge it necessary. Nevertheless, this controversy appeared to be short-lived, since the governing party in this case actually passed a draft law prepared by the predecessor government, which made the criticism of the opposition – who was part of that government – not entirely convincing. Interestingly, the PiS government seems to use to some extent the Hungarian roadmap for its reforms, as references to Hungary’s prime minister Viktor Orbán in particular and Hungary in general abound in the Polish public sphere.

In turn, the EU has threatened consequences. Should the envisaged ‘dialogue’ between the EU and Poland not lead to minimal consensus about adaptations or corrections of the laws in question, sanctions might impend, even the (temporary) suspension of voting rights of Poland as a full member in the EU – which would also be an unprecedented step in the history of European integration. As a reaction, Prime Minister Szydło argued that ‘defamatory statements’ were behind the measure of the EU and denied that there were any attempts by her government to impede democratic values and pluralism in Poland (Baczynska, 2016; BBC, 2016b). On 13 April 2016, the European Parliament passed a non-binding resolution in which it called on the Polish authorities to fully implement the Venice Commission recommendations on the ability of Poland’s Constitutional Tribunal to act in order to uphold its constitution and guarantee respect for the rule of law (European Parliament, 2016).

Contrary to the countless short-lived analyses of often sensationalist undertone which accompanied this development in the international commentary and publication spheres, and in order to clarify the backgrounds of the ongoing, it is indispensable to put them into a wider time horizon and a broader political context. In order to do so, firstly we discuss whether the constitutional crisis in Poland can be in fact interpreted as part of a longer-lasting trend towards reverse democratization in the CEE area – a thesis expressed by some pundits. Secondly, we explore the structural causes of the political changes in Poland, including the recent socio-economic history of the nation. In this regard, our argument is that a specific type of CEE governance and its notorious shortfalls are the main causes of the events on the ground. Thirdly, we argue that in addition, institutional fallacies of the EU strengthen, rather than mitigate, governance pathologies in the CEE nations. In particular, a superficial institutionalism of the EU can prove to be problematic in this context. Fourthly, against this backdrop, we discuss the controversial reforms undertaken by the Szydło government. We conclude with remarks regarding potential further developments. That includes the potential impact of the EU on the events in Poland.

IS A REVERSE DEMOCRATIZATION UNDERWAY IN CENTRAL AND EASTERN EUROPE?

After Hungary, Poland is the second of the Central and Eastern European countries that raises fears of an authoritarian backslide in the CEE region (Ágh, 2015; Berend and Bugaric, 2015; Hanley and Dawson, 2016). Both countries were long viewed as role models with regard to their political and economic transformation from communism (or the so-called ‘real existing socialism’ as political purists would have it) to democracies starting in 1989–91 until their accession negotiations with the EU in 1998–2002 (Pridham and Vanhanen, 1994; Holman, 1998; Pridham, 2005; Kornai, 2006). These negotiations led to both countries’ EU membership in 2004, together with a number of other, even more ‘Eastern’ CEE countries such as the Baltic post-Soviet republics together referred to as the A8 countries. However, since the 2010 victory of the conservative Fidesz party under prime minister Viktor Orbán and its re-election in 2014, Hungary has introduced encompassing ‘systemic reforms’ allowing for changes of the liberal-democratic constitution, a firmer government’s grip on the Hungarian Constitutional Court and controversial media laws, accompanied by a rise in nationalist discourse in public media (Bayer, 2013; Bugaric, 2015; Innes, 2015).

Even the official name of the Republic of Hungary was changed to Hungary in 2012, which to many observers was more than just an exercise in linguistic thrift but rather an ethnic redefinition of Hungary’s national identity. While the EU despite all ‘sharp critique’ has been unable to impact Hungarian domestic politics in effective ways over the past years, Hungary’s neo-nationalist Prime Minister Viktor Orbán reacted rather cooperatively to the EU’s requests to explain his government’s controversial reforms. In contrast, the new Polish government under Beata Szydło showed more recalcitrance to the EU’s pressure, thus provoking the formal investigation procedure of 2016 by the European Commission.

Given the controversial events in Poland since November 2015, some outside observers continue to offer reductionist readings of the Polish crisis. For example, Kelemen and Orenstein (2016) in their Foreign Affairs article ‘Europe’s Autocracy Problem: Polish Democracy’s Final Days?’ are already counting the days of Polish democracy and see its only rescue in the pressure of the EU on the Polish government to withdraw or modify some of the contested laws. Others, such as Ivan Krastev (2015) with his ‘Plane crash conspiracy theory’ in Foreign Policy, Judy Dempsey (2016) with her assertion that Poland’s case is crucial for the future of the EU and must therefore be handled ‘strongly’ in Carnegie Europe, as well as Freudenstein and Niclewicz (2016) in Vocal Europe with their request for a strong EU intervention against what they call ‘the new Polish government’s illiberalism’, follow similar paths. Some observers though particularly from Poland itself, like Open Europe’s Paweł Swidlicki (2016), while recognizing the existence of a serious ‘domestic’ problem asserted that an intervention of the EU in Poland held the risk that it might backfire by both turning out to be counter-productive for a conciliatory development in Poland itself and infecting the greater CEE area in unpredictable ways thus creating new instabilities.

All in all, voices from both within and outside Poland have covered the full spectrum of options from the request of resolute intervention to cautious restraint – and from clear condemnation of the actions of the PiS government as ‘illiberal’ or even ‘anti-democratic’ to silent acceptance of its democratic legitimacy.

Overlooking the various positions which all add aspects to a multi-faceted picture in motion, we argue that a more balanced standpoint is necessary to grasp the real complexity of events on the ground. On the one hand, it can be argued that the ‘state-reshaping’ measures of the Polish government – pushed through in rapid succession immediately after the power takeover – require serious explaining both at the national and European level, as they touch upon the core of the rule of law. On the other hand, a more accurate socio-economic investigation is needed to grasp the origins of the current crisis. Any explanation has to reach farther into the past than just to the victories of the current national-conservative PiS party in May 2015 (presidential elections) and October 2015 (parliamentary elections). In short, in order to understand the deeper causes of the political situation in Poland we have to explore the recent history that led to the current development, and in particular to consider the greater socio-economic and socio-political environment in which this history took place. In addition, the greater European environment including its recent transformation has to be taken into consideration.

The former EU commission president José Manuel Barroso (2004–2014) said in his farewell speech in Strasbourg on 21 October 2014 that the EU has been transiting through multiple crises over the past eight years (Barroso, 2014). Some of these crises have been generated by external factors such as the Russia-Ukraine crisis since 2014 and the refugee crisis since 2015. In contrast, others have been self-made such as the sovereign debt crisis with Greece at its centre since 2009, or the economic turmoil with several recessions in core Eurozone member states such as Italy since 2007. To the present day, most of these crises remain unsolved and overlap, thus putting the EU governance under strong pressure both from within and from its outside partners such as the United States.

The 2015–16 tensions between the newly elected Polish government and the EU are in many ways part of the second category: they are widely self-made, particularly under two viewpoints. On the one hand the new Polish government seems to not fully understand the European partner’s concerns by reacting less than diplomatically desirable. See, for example, the open letter of the Polish Justice Minister Zbigniew Ziobro (2016) to the German EU Commissioner for Digital Economy and Society Günther Oettinger on 9 January 2016, in which he accused the EU of judging former Polish governments including the one of acting president of the European Council Donald Tusk (the EU president since 1 December 2014, former prime minister of Poland from 2007–14) and the current one of Beata Szydło employing double standards. On the other hand, the continuity of the crisis seems to have blinded parts of the European elites despite all their efforts and goodwill to fully grasp the meaning of the coming into power of the Polish (and Hungarian) conservatives. The Polish elections of October 2015 produced a major victory of the Catholic-conservative PiS with 37.6 per cent of the votes and the majority of 235 out of 460 seats (51 percent), following the victory of the conservative candidate Andrzej Duda in the antecedent Presidential elections of May 2015 with 51.55 per cent of the votes (Marcinkiewicz and Stegmaier, 2016).

Again, just surfacing across the events rather than properly investigating their undergrounds, there are mainly two simplifying explanations for the victory of the PiS in 2015, similar to those of its Hungarian counterpart Fidesz in 2010 and 2014. The first of these simplifications goes as follows: Poland’s right-wing politicians succeeded in manipulating this still democratically somewhat naïve (since still to some extent ‘post-socialist’) Central Eastern European (CEE) society into voting for the nationalist and anti-European Right in order to restrict democracy and establish some form of ‘soft’ authoritarian regime by taking advantage of the overflowing European crisis psychology (Orenstein, 2015). The second, even more polemic and reductionist interpretation reads: the victory of the PiS, even though democratic, has finally shown the true face of CEE societies, as these societies seem to remain nationalist to the core and have merely been pretending to accept the shared norms of liberal democracy, only to reap the economic and financial fruits of their EU membership. The latter view seems to be less of a pronounced argument, but rather an underlying tone in many analyses of the democratic transformation of the past 25 years in the CEE area, which reflect a general scepticism in the democratic capability of the region. The renowned ‘transitologist’ Ost (1994: 49) believed already in the early 1990s that ‘the danger of new dictatorships in Eastern Europe comes from the bottom, not from the top’. Also, Ivan Krastev (2007) predicted that liberal democracy in Central Europe may be sooner or later coming to an end in CEE, as nationalism, populism and religious fundamentalism could be taking over. However, although these analysts may have hit some blind spots in the political reality of the CEE nations, the doomsday explanations misread the structural causes and prescribe doubtful solutions, the preferred one being ‘strong’ pressure by the EU on the Polish government or even, in its more radical though not very likely version, the threat of a potential suspension of Poland’s membership in the EU.

STRUCTURAL BACKGROUNDS OF POLAND’S CONSERVATIVE TURN

In contrast to such simplifying views, we argue that the main reason for the electoral victory of the Polish Right in October 2015 – as a consequence of which the PiS was able to form the first single party government in Poland since 1989 – is a structural one. It lies exactly at the intersection of two major socio-economic phenomena in the CEE area and greater Europe: the notorious pathologies of economic governance in Central and Eastern Europe and the notorious weakness of the European integration project. There are several aspects that have to be considered in this regard.

Firstly, during 25 years of democratic development, the CEE version of capitalism all too often remained neoliberal in its practice, excluding relevant portions of the CEE societies from the benefits of liberal capitalism or distributing the costs and benefits asymmetrically (cf. Bruszt, 2002; Drahokoupil, 2009; Nölke and Vliegenthart, 2009). For decades, CEE economic governance has shown serious limitations regarding its ability to socially integrate the societies of the CEE nations, including Poland and Hungary. The neoliberal model was highly successful during the unprecedented economic and political transformation that took place in the CEE area after 1989 leading to the creation of new economic middle and financial upper classes, the attraction of foreign capital and a comparatively solid GDP growth (cf. Sachs, 1992; Przeworski, 1991; Shleifer, 1997; Kornai, 2006).

Secondly, despite (and partly as a result of) the neoliberal approach considerable parts of the CEE societies saw themselves unable to increase their social mobility, to find a steady job and to live without fear of socio-economic decline. Many citizens found their post-communist hopes of participatory, shared and just social progress unfulfilled (Milanovic, 1993; Bruszt, 1994). Although oligarchic politico-economic structures were more widespread in some CEE countries such as the Czech Republic and Latvia rather than in Poland, the neoliberal economic governance produced socio-economic exclusion within a relative short period of two and a half decades in all CEE countries (Cf. Nesvetailova, 2004; Iankova, 2002). At the same time, post-communist legacies guaranteed privileges for some societal groups such as miners, farmers and policemen. This mixture of heavy social costs for some groups and privileges for others meant that many citizens started to see a prevalence of the drawbacks of transformation (cf. Crawford and Lijphart, 1995; Standing, 1996). According to the 2013 CBOS survey on the assessment of the post-communist transformation by Polish citizens, a 59 per cent majority of Poles believe that the democratization of 1989 was necessary and worthwhile. Still, 60 per cent of Polish citizens think that the transformation costs were too high and 59 per cent even believe that Poland has not used all the opportunities that the historic breakthrough offered (CBOS, 2013; cf. King, 2000).

Thirdly, especially young people and senior citizens in CEE, including Poland, have been living under existential pressure for many years, as their governments have not been able to substantially strengthen the welfare state, despite the import of mainly Western models of democracy and participation. Many people in the CEE nations regard the welfare state as the pinnacle of positive liberal-democratic development (Orenstein, 1995; Fish, 1998). This was never (and is not) about achieving the same level of welfare benefits as in Germany or France, as the public budgets of the EU newcomers are radically lower than in their Western European counterparts. It is more about the structural disadvantage of some social groups. During the last 10 years, more than 2.3 million Poles have emigrated to Great Britain, Ireland, the Netherlands and Germany, as the labour market in Poland (and other CEE countries) remains difficult for many young people. One of the reasons for these notorious difficulties is an only partially reformed and ineffective education system, which remains largely uncoordinated with the demands of the labour market.

While the general unemployment rate in Poland has lay beneath the 10 per cent threshold (Central Statistical Office, 2016) for some time, it is the particularly high levels of youth unemployment that pose a problem. The unemployment rate of young people decreased from 27.3 per cent in 2013 to 21.1 per cent in 2015. However, this improvement was largely due to corresponding negative demographic trends, since the share of young people in the general population over the same period decreased from 15 per cent to 12 per cent. Many senior Polish citizens presently have to live on $350 a month and are forced to pay for their medication in full, as the public health system partially operates on levels of developing countries due to its permanent underfunding, for instance regarding cancer treatment (ZUS, 2015). In addition, an average Polish retiree will enjoy her or his pension for only eight years due to the late retirement age (67) and shorter life expectancy (75), while, for example, an average French retiree will enjoy her or his pension for 19 years (ZUS, 2016). The majority of Polish citizens have to use private medical services, despite the fact that the average household net financial wealth per capita is $10,919 in comparison to the OECD average of $67,139 (OECD 2016). In addition, Polish pensioners are heavily indebted, as their accumulated debt burden equals around $500 million (KRD, 2016).

Not all of the socio-economic numbers are equally drastic though, as the macroeconomic data for Poland look rather encouraging. For instance, the unemployment rate, in particular the Polish youth unemployment rate, is certainly not as high as in Greece (51.2 per cent), Spain (51.7 per cent) or Italy (42 per cent). Due to their low international investment and financial integration and their comparatively low economic and financial profile, Poland, Hungary and the Czech Republic were only marginally hit by the international economic and financial crisis of 2007–10. There were no major banking crisis, no sovereign debt crisis, and no major problems with borrowing in international money markets. The GDP of Poland has been growing by more than 3 per cent for years, in 2015 by 3.6 per cent. The level of public debt remains modest by European standards at 52 per cent of the GDP – the Euro area-19 average is 90.7 per cent (2015) and the EU-28 average is 85.2 per cent (Eurostat 2016) – while the budget deficit stays within the European parameters at around −2.8 to −3.0 per cent. Not even Russian sanctions against Polish food products, introduced in 2014 in retaliation to the EU sanctions after the Russian annexation of the Crimea and the destabilization of Eastern Ukraine, were able to disturb the economic growth. Polish producers were not only able to quickly find substitutes for the Russian market, but even expanded their sales. In 2015, for the first time in 27 years, the Polish economy experienced a trade surplus. In addition, the Gini coefficient of 32.7 suggests a rather equal distribution of income in Poland.

That means that the macro-economic data per se do not explain the widespread sentiment of failure of economic governance over decades and inefficiencies of the political system. In a CBOS opinion poll in July 2015, 31 per cent of respondents depicted the political system of Poland as highly deficient and 41 per cent as inefficient; 72 per cent of respondents see a necessity of serious changes in the Polish political system (CBOS, 2015).

The reasons are multiple. After 1989, basically all governments used state agencies and state enterprises for cronyism and politico-economic clientelism. This drained financial resources from the state budget that could have been otherwise invested in improving higher education, research, health care and pension systems. Foreign capital was not only unable to substitute for this structural misuse, but also produced its own problems such as real-estate bubbles or dubious mortgages denominated in Swiss francs and hardly affordable for Polish pensioners. Corporations, banks and consultancies mushroomed, but the CEE nations, namely Poland, the Czech Republic, Slovakia and Hungary, virtually became assembly lines for foreign producers that did – and do – not hold their Research and Development (R&D) departments in the CEE area nor pay their taxes there. These companies prefer to pay these taxes in other EU countries such as Ireland, Belgium or Liechtenstein due to lower corporate taxes and VAT. It is not by chance that some of these countries are currently facing the EU investigations because of alleged unfair taxation and economic competition practices. Polish political parties of all colours and at all levels of government became (all too willingly or in some cases under pressure from international financial institutions) complicit in this development, dragging their feet for years on necessary reforms in higher education, the health care and the pension systems. In this sense, in the view of most Poles, post-communist democratic political parties and governments transformed to become guardians of the pathologies of the CEE governance practice, while their countries began taking a slow, but steady turn towards a kind of Latin American type of capitalism (Ost et al, 1994), rather than the Western European welfare state.

Occasional tape scandals disclosing the weakness of the state and the degree to which self-serving government elites in CEE used the state for their personal and narrow political goals were often catalysts for the expression of people’s frustration in recent years. In Hungary, such a tape scandal considerably weakened the post-communist government of Ferenc Gyurcsány in 2006 (BBC, 2006) and paved the way for the later victory of Viktor Orbán. In Poland, a similar tape scandal in 2014 (Sobczyk, 2015) deepened the disillusionment with the PO-PSL government that ended in an electoral debacle for it in 2015.

THE EU’S INSTITUTIONAL FALLACIES

Despite progress in many areas, and regardless of the good-will rhetoric, Poland’s EU members since 1 May 2004, has not changed much in this respect. It is true that Poland has benefited economically from the EU membership and is one of the largest net receivers of funds from the EU budget in its current budget perspective 2014–2020 (the largest in absolute terms, but not per capita). Still, the impact of the EU on daily life quality in the CEE area remained questionable in the first decade of membership. This is quite visible in the difference between the perceived positive impact of the EU on Poland as a country, and the perceived positive impact on the lives of individuals. While 62 per cent of Polish respondents saw the EU’s impact on Poland as positive, the positive EU impact on individual lives was shared by only 43 per cent (CBOS, 2014).

We argue that the perception of the EU as having less of an impact on the individual lives of citizens is connected with two major institutional fallacies of the EU: (1) democracy deficit and (2) superficial institutionalism. Both the democracy deficit and superficial institutionalism reflect the fundamental weakness of the European integration project, which comes to the fore when it overlaps with the specific pathologies of the political cultures of single member areas, in Poland’s case with those of CEE economic (mis)government.

DEMOCRACY DEFICIT AND PERCEIVED UNEQUAL TREATMENT

Many studies have been published on the EU’s democratic deficit (e.g. Crombez, 2003; Føllesdal, 2006), mainly regarding the absence of an European demos, European parties and proper parliamentary control. In the CEE context, there are additional aspects pertaining to asymmetries between old and new member states as well as other cases, which in turn resonate well with the new literature on ‘Europe’s Justice Deficit’ (Kochenov et al, 2015). In the specific CEE context, in particular whenever there is conflict between a member state and the supranational institutions of the EU, some aspects of the EU’s democratic deficit become more relevant than others. For instance, the question pertains as to the legitimacy of the commissioners of the EU who might be viewed as not entirely legitimate, since they are not democratically elected but chosen by the member states, in procedures often lacking transparent criteria.

In particular, from the CEE historical experience with former transnational ‘super-states’ such as the Soviet Union or the ‘Communist bloc’, European functionaries are sometimes regarded as new ‘apparatchiks’ who seem to judge everything, including (important) details, from a 10,000 feet perspective. This is especially true of CEE senior citizens. In general, Polish society is deeply divided regarding the Commission’s decision to initiate the rule of law probe in January 2016. 42 per cent of respondents believe that the Commission’s step was caused by both its antipathy towards the PiS government and its ignorance about Polish political reality (CBOS, 2016). In this view, the EU has not been energetic enough in its support for deeper governance reforms in the CEE member states, nor did it help Poland to solve its most pressing problems, including structural problems in higher education, health care and the pension system. In addition, CEE media report that around 61 cents of every euro spent in CEE countries through the EU funds return to the old EU member states, favouring mostly German firms (Forbes, 2012). Also, Polish famers annually receive $1.67 billion, while their French counterparts receive $10.87 billion – i.e. 8 times as much, with a population less than twice as numerous (France: 67 million; Poland: 38 million). That is why the rhetoric of sanctions against Poland is seen as hypocritical by many Poles. Both the asymmetries in treatment, and controversial decisions by the European Commission, are likely to exacerbate the image of the EU in Poland in the long-run.

SUPERFICIAL INSTITUTIONALISM AND ITS MYTHS

The inability of the EU to cope with collective problems seems to be quite widespread. Certainly, the EU has often a limited capacity to deal with all problems of the EU member states, above all because the EU’s budget equals only 1 per cent of the EU’s GDP. Still, there is a growing expectation towards the EU by its member states to solve at least some of the collective problems; and this expectation is not new. One of the central arguments made by Fritz Scharpf (1999) in the 1990s was that the EU has to deliver both democratic and effective decisions for all its members. However, according to Scharpf (2002) European integration has generated a far-reaching asymmetry between policies promoting market efficiencies on the one hand and policies promoting social protection and equality on the other hand. While national welfare states become increasingly constrained by European rules of competition law and an overall joint trend towards ‘fiscal responsibility’, the member states, in particular the old and the new ones, considerably differ in their ability to pay for social transfers and services. At the same time, European social policies are underdeveloped due to the modest EU budget, and a democratic deficit that impedes more encompassing distributional policies (Scharpf, 1997).

Moreover, the so-called ‘older’ EU members are not mainly interested in greater distribution of financial resources across the European societies because of the limitations posed by national identities and the deeply rooted national interests of the member states. Interestingly, similar perceptions are also common in the main Western founding nations of the EU and in the crisis-ridden Eurozone Southern states such as Italy and Greece (overwhelmed by youth unemployment and the ‘broken borders’ (Kaelin, 2015) of the refugee crisis). These issues coalesce in the perception of a superficial institutionalism in the EU. These are the reasons why just 37 percent of the overall European Union population see the EU as a positive political and institutional body, according to polls of January 2016 (Austrian Press Agency, 2016), and why the EU is perceived by many CEE citizens as being more about the excessive regulation of benchmarks than about real socio-economic impact and detailed contextual improvement. The regulative inconsequence of the EU has been viewed in CEE with growing disenchantment. For example, in 2006 the EU Commission held that Lithuania was not fit to join the Eurozone, as its inflation rate was too high: 3.5 percent was apparently ‘much higher’ than the overall EU target of 3.0 percent. But shortly before this, the EU accepted falsified Greek statistics on public spending and inflation in order to have as many countries as possible on board to jointly establish the Euro currency. This can be seen post factum as unequal treatment – to the disadvantage of the CEE area. And it has been viewed by some CEE observers not as an occasional discrimination, but as a more systematic one, i.e. one rooted in the mentality of Western EU members towards the allegedly ‘notoriously underdeveloped’ CEE nations in general. Cases of systematic discrimination of CEE firms in the old member states, for instance France and Germany, are increasingly better documented (Polska, 2015). Whether or not inequality before the EU institutions exists, the image of the EU as an implicitly discriminating organization began to develop after 2006 and is becoming a powerful myth in many CEE countries.

This myth, whether it is based on sound facts or not, has to be taken into account to understand the socio-cultural backgrounds of the recent victories of PiS in 2015. Fewer and fewer Poles think that the EU should integrate further – in 2009 support for this belief was at 48 per cent, while in 2013 it was only 34 per cent, long before the refugee crisis. These numbers returned to higher percentages in 2014, in the context of overall polls about Poland’s relation with the West in general under the threat of the Ukraine crisis. But we can expect that the approval rate of the EU will once again decrease for 2016 and 2017 in the wake of the EU investigation, largely independent of voter affiliation, as previous similar cases such as the one of the informal EU member state sanctions against Austria in 2000 have shown in the past (Richter, 2000).

Overall, the EU investigation, be it fully justified or not, may strengthen feelings of the ‘Justice Deficit’ against the EU in smaller or less powerful member countries. Some CEE nations, in observing the Polish case, see powerful member states being allowed to ‘walk free’, while others are held responsible for every (critical) step. For example, the German government, considered the ‘sick man of Europe’ before chancellor Gerhard Schröder’s reforms of 2005 (the so-called Agenda 2010), repeatedly violated the so-called EU Stability Pact from 1998 to 2005. The Foreign Minister of Poland, Witold Waszczykowski, recently (symptomatically) argued that Germany, at the same time (in 2004), introduced an unjustly long transition period for Polish citizens to access the German labour market, even though Poland had been a member of NATO since 1999. In addition, the EU decision of late 2015 to build the North Stream 2 pipeline in the midst of the Russia-Ukraine conflict has been perceived in Poland as a further serious blow to the EU’s trustworthiness, in particular in the context of the European solidarity narrative that the EU Commission has been using extensively since 2014 to motivate its member nations to impose sanctions against Russia which is an important trade partner of Poland.

All these disappointments with the EU became manifest in the recent speech of Foreign Minister Waszczykowski (2016) on the priorities of Polish diplomacy, held in the parliament in Warsaw on 29 January 2016. As he underscored, the Polish Foreign Ministry highlights strong cooperation with other CEE countries and Great Britain – to the detriment, as some observers argued, of relations with Germany and partly with France. Also, any further European integration has been explicitly questioned by Waszczykowski:

‘Proponents of close integration of the Eurozone want economic governance to be coordinated and a de facto political union to be established. Unfortunately, today there is no fair and democratic way of electing legitimate authorities of such a union’ (Waszczykowski, 2016).

POLISH AND EUROPEAN CONTRADICTIONS BETWEEN ‘RIGHTIST’ AND ‘LEFTIST’ POLICIES

Given these combined structural and socio-psychological causes at the roots of a rather general conservative turn in Poland, the electoral victory of the Right in Poland cannot be regarded mainly as an ‘immature’ ideological shift to the right. It is rather a collective response to the combination of a highly complex crisis of the European project and the specific problems of CEE governance. To put it in one sentence: The institutionalism of the EU is perceived as merely being able to regulate superficial problems, rather than to meet the existing deeper socio-economic challenges in the CEE countries. This has been one of the main causes of the nationalist and (neo-)conservative turn of the CEE area over the past few years, including in Poland most recently.

Paradoxically, from a traditional viewpoint, the new conservative governments in Poland and Hungary embraced ‘strong’ redistributive measures immediately after coming to power. These polices are similar to those in nations with (eco-)social market economies like Germany or of centre-leftist distributive logics such as France and Italy but have been largely omitted by previous governments in the CEE area. Among other measures, the PiS government introduced additional child support in 2016 and intends to free senior citizens (above the age of 75) from paying excessively for prescription medicine – and all this will be done by extracting additional taxes from the banking sector and multinational corporations. In this sense, the conservative PiS government pursues an almost classical leftist agenda, or in any case an agenda deeply ingrained in the social welfare policies of Western Europe.

Here, we can clearly see one paradoxical mechanism of the late EU: that ‘leftist’ governments usually cut into the welfare net and the social system to introduce liberalization, competitiveness and efficiency reforms, while ‘rightist’ governments nolens volens have to mitigate social differences and inequality in order to retain popular consent and thus remain credible as ‘people’s parties’ in societies increasingly split between centre-left and centre-right. An example for the first mechanism was the German Social Democratic Chancellor Schröder’s ‘Agenda 2010’ (2005) which is now imitated, with 10 years’ delay, by the young prime ministers of Italy (Matteo Renzi) and France (Manuel Valls). Both are representatives of leftist parties and alliances, but de facto have to enact a centre-liberal program out of necessity, sometimes calling it a contemporary neo-European ‘Third-Way’-approach (Benedikter, 2016). The PiS provides an example of the opposite: a conservative party that in many ways pursues a clear ‘socialist’ agenda. The irony built into these contemporary European contradictions is that since Schröder it has been the conviction of many experts and politicians that only leftist governments can implement cuts and ‘serious’ reforms of the social system, because they are the only ones who can convince the lower classes of the necessity to do so, while only rightist governments can convince the economy to concede a better social share to the broader community.

The controversies surrounding the disempowerment of the Polish Constitutional Court and the public media have to be seen in this complex framework, particularly in the context of the conservative government’s conviction that the current governance problems of Poland (and other CEE nations) are so serious – and at the same time so widely ignored by the EU partners – that they require an exceptionally far-reaching governmental capacity to act similarly to a government of ‘national unity’. Only such a much-empowered government would be able to break vested interests and remove the all too well-known pathologies of CEE governance. Since the PiS has not forged an alliance of ‘national unity’ with other parties in the parliament, nor sought respective consensus through public debate, critics argue that the government is not legitimized to launch game-changing emergency measures appropriate only to a real, i.e. formalized government of ‘national unity’, since they modify the rules of the system, not only its applications.

POLAND’S CONTROVERSIAL GOVERNANCE REFORMS IN THE CONTEXT OF THE EU

In its own view, though, the PiS government is introducing an encompassing restructuring of the state, as it enjoys democratic legitimacy both in the parliament and in the presidential office. The key to these plans is a comprehensive removal of officials, politicians and journalists connected to the formerly ruling parties and the preceding political mainstream. These actors are seen to have contributed to the persistence rather than the solution of the socio-economic problems described above. Both the controversial PiS law on the Constitutional Court and its law on public media are part of this strategy.

The interesting aspect of both laws is that they are actually not entirely new, but follow the steps of previous governments (Karatnycky, 2016). The PO-PSL government–the alliance between the centre-right Civic Platform PO and the Christian-democratic Polish Peasants’ Party PSL – that ruled Poland from 2007 to 2015 wrote its own law on the reform of the Constitutional Court in June 2015, trying to rig the court’s set-up in its favour. That was after the PO-PSL alliance lost the presidential elections in May 2015 and headed for disaster in the parliamentary elections later won by the PiS. In doing so, the PO-PSL government politicized the Court against its original setup as an independent institution. In consequence, the PiS sees its 2015–16 law on the Constitutional Court as a remedy to unconstitutional steps taken by the preceding government.

A last aspect has to be noted here to advance a more sober view. The public media have always been up for grabs after every government change in Poland (this is also the case in other CEE countries for that matter). The now oppositional PO party was not necessarily less ruthless in placing their ‘own people’ as heads of public TV and radio stations. Neither the European Commission nor the leading EU member states were seriously protesting against these steps, since most of them were introduced rather silently and without much confrontation. Independent of the clearly biased view of acting Prime Minister Szydło, who argued in a recent interview that the EU pressure on the new Polish government allegedly comes from interest groups in the CEE neoliberal networks, even the former Prime Minister and former leader of the post-Communist party SLD, Leszek Miller (2015), who can hardly be suspected of sympathy for the PiS, argued that there was no reason to believe that the PiS was a threat to Polish democracy as such. Independent of the truth or falsity of these judgments, the uncommon solidarization between the Left and the Right in Poland suggests a new Anti-EU sentiment, embracing both sides of the aisle in rarely seen manners – for which the causes at the interface between Brussels and Warsaw are as complex as for the EU-CEE constellation in general.

The question in this situation is if the 2016 intervention of the EU against the PiS government marks the beginning of a new crisis – a crisis in which, to make matters worse, the main role could be played by a European Union itself plagued by the historical threat of breaking apart in different sectors and at different levels. At the same time, the EU-Poland crisis might even have more serious consequences on the specific governance problems of Central Eastern European nations – even more than North-South tensions during the European sovereign debt crisis had on the questions of the Euro and of Austerity versus Stimulus Policies. This is because the case of Poland relates to the centre of the East-West axis of the European integration project, which is still younger and more unstable than most other internal relations within the EU. The EU refugee crisis could make things – at least temporarily – even worse, mainly psychologically, e.g. regarding the trust between member states and between them and the EU as a whole. Currently, European decision-makers seem to tiptoe around the UK because London could leave the EU after the 2017 referendum, whereas the CEE countries are heavily criticized for their apparent lack of European solidarity in the migration crisis. But while Italy, Spain and Greece have been hit with migration waves for many years, most European lead nations, among them the UK and France, have hardly batted an eye due to their own problems with parallel societies. Today’s calls for more European solidarity by the EU are accompanied by voices of European politicians to cut the European funds to the CEE area – a call which understandably does not exactly enhance the EU approval rate with CEE voters.

CONCLUSION

Taking all these considerations together, can there be a positive perspective for solving what has been to some extent imprecisely branded ‘the Polish crisis’, but should be more accurately called ‘the Poland-EU crisis’? Can Poland and the EU find a productive agreement that instead of further poisoning the fountain carries things forward towards a better union for all and everybody by compromise and solidarity?

Without doubt, the re-nationalization trend in Poland under the new PiS government is both a mirror and a constituent part of the crisis of the European integration project. While Poland needs innovation, the European project needs ‘deep’ reforms, independent of the Polish turmoil. Can the case of Poland thus be an origin of – and catalyst for – renovation of the European Union?

If so, this will require a pro-active compromising approach by both Poland and the EU, rather than an intransigent approach on the one side and a punitive one on the other. Any win-win solution requires Poland to take a step back and the EU to take a step forward – first and most importantly to solve the notorious CEE economic and governance problems. Certainly, the Polish government should show greater willingness to communicate and cooperate, and to find moderate agreements on its implemented and intended governance reforms. Juxtaposing a superficial nationalism against a superficial institutionalism of the EU cannot offer a lasting and sustainable solution in a historical crisis constellation, where Poland and the EU probably need each other like never before.

However, the signals of the governing PiS are mixed and may remain so over the years ahead. After the ruling of the Polish Constitutional Court on 9 March 2016, in which many of the new conservative government’s changes have been deemed ‘unconstitutional’ since they are ‘dramatically limiting’ its functionality and thus the overall independence of the court system, Poland is in the middle of a constitutional crisis, given that ‘the government has indicated it will not recognise the Constitutional Court’s judgment [on the issue]’, implying that the judges’ standpoint is biased (BBC, 2016c).

Although the case of Poland is thus far unique in the EU history, it is not entirely true that the EU has not entertained actions against member governments in the past. There is, for example, the above-mentioned case of the informal, but diplomatically coordinated ‘sanctions’ of the then EU-14 against Austria under Chancellor Wolfgang Schüssel from 2000–2007. Schüssel had forged his government with the participation of the FPÖ, a party considered populistic and of right-wing character. It was then considered a taboo to let such a party become a member of an EU member state government. On that occasion, some other EU governments, namely France, Germany and Belgium, aligned in a strategy of ‘organized unfriendliness’, excluding Austrian representatives from the EU joint work and keeping contacts at a minimum in order to isolate the Schüssel government, with the potential goal of letting it fail domestically. But in reality, the sanctions increased domestic support for the government in Austria beyond party affiliations. In the end, after a few months of European turmoil, things calmed down with the judgment of three experts (‘the three wise men’) sent to Austria to examine the constellation who reported that the Austrian governmental coalition had not done anything that would justify measures against it according to European law.

The lesson that Poland can learn from this case is that things are not always as bad as they seem in the first instance. Knowing this, a more conciliatory standpoint should be possible. The Polish reforms should be oriented towards following best practice examples of the EU and OECD through mutual exchange, that are advisory (rather than unilateral) in nature.

The European Union, for its part, should not exaggerate in depicting the reform actions of the Polish government as alarming. Clearly, all contested measures will have to be evaluated with great accuracy, in context and in detail. In addition, an investigation is in the legitimate interest of the EU: Poland is its sixth-biggest member state. But one must not forget that in many European nations the heads of public TV and radio have been or are appointed by the government (e.g. in Germany and in Italy, where young Prime Minister Matteo Renzi is trying to implement a new reform after scandals in the public broadcast RAI followed the many reforms since the advent of the ‘media democracy’ of Silvio Berlusconi in the second half of the 1990s). Similarly, the UK and other European and Western nations have increased surveillance and police powers, not least in response to increasing terror threats. France and the UK (similar to the USA) have seen a strong militarization of their police forces – a development unknown in the CEE area. Finally, the UK and other nations – with the alleged exception of Italy, which claims to have the strongest privacy rights in Europe (Benedikter, 2016) – have expanded their surveillance net by de facto subsequently reducing citizen privacy rights since the 1990s, as the case of Edward Snowden (together with other similar ones) has revealed.

Overall, it is high time for both Poland and the European Union to look to the real origins of the crisis, and to work towards respective joint in-depth solutions for the structural problems of the greater CEE area, including insufficiently modernized and adapted economic and financial practices, the poor quality of daily life, forced emigration and crisis psychology. Cooperation on problems has to replace institutional pressure in the medium term. Any anti-democratic trend of the PiS has to be questioned and where necessary restrained and corrected through dialogue and best practice comparisons. But these should come in the form of an offer from the EU (and collaborating bodies) to Poland, rather than an impeding threat. But the more important issue in the long-term perspective is to improve the conditions of life in the CEE area by putting more constructive and creative EU-wide attention than in the past to this particular area with its specific historical heritage and unique path to development. Democratic elections are never about right or wrong choices; they rather reflect current concerns that have been neglected by former political elites. Thus, the demonizing of political parties, in particular democratically victorious ones, is never the best approach. The popular consensus in Poland may change over the next years depending on how seriously the concerns of the people in the CEE area will be taken by both Polish and European governments. Despite all criticism from the EU, Viktor Orbán and his Fidesz were re-elected in 2014, but this time without a constitutional majority.

Summing up, the discussions on Poland should be viewed as a positive chance to introduce deeper and more efficient reforms, rather than the next exercise in the EU superficial institutionalism. The report of the ‘Venice Commission’ of the Council of Europe will play a decisive role in mitigating the spirits, and to transform a heated debate into a more constructive discussion for the benefit of both Poland and the future of the European Union (Venice Commission, 2016). The current case of Poland could indeed become a catalyst for renovation of the European project, based on a sound – and long overdue – debate on what type of community the EU is supposed to be: a mono-bloc led by some particularly strong nations, or a more differentiated body where diverse cultural areas with different historical experiences, speeds and needs are considered in their own right and balanced with care.

Should this chance for a deepened debate be ignored, the EU might indeed be on its way to becoming a self-subverting organization, torn by internal differences between East and West, North and South and missing a ‘soul’, as U2’s Bono (2014) put it on the occasion of the European People’s Party congress in Dublin on 7 March 2014, asserting that ‘Europe is a thought that still needs to become a feeling’.