Civil society, EU pressure and the end of Poland’s illiberal experiment

Poland’s recent elections appear to have ended the country’s illiberal experiment. The European Commission made the right call in refusing to accept Poland’s cosmetic rule-of-law reforms in the summer of 2022. The EU’s pressure and conditionality mechanism were a factor that has given Polish society the chance to repair democracy backsliding. The crucial factor was how this pressure combined with domestic mobilisation and international events. The turning point represented by Poland’s election provides important lessons for future EU democracy support.

Electoral factors

In the October 2023 election, the governing Law and Justice (PiS) party received 35.38 percent of votes and won 194 out of 460 seats in the lower house of parliament. This was considerably down from the 2019 elections when it won 43.59 percent and secured a second term with a majority of 235 seats. Civic Platform, which won 30.7 percent of votes and 157 seats, is expected to form a new government with two other electoral blocs: the Poland2050 and Polish People’s Party coalition (14.4 percent, 65 seats) and New Left (8.61 percent, 26 seats). The radical-right Konfederacja, which won 7.16 percent and 18 seats, has ruled out forming a minority government with PiS. In any event, their combined 212 members of the lower house would not be close to a majority. With 248 seats the new government will be stronger than many expected though still short of the three-fifths majority necessary to override vetoes by President Andrzej Duda, who was elected with PiS support.

The most important issue for voters was the economy, given the rising cost of living and falling real wages for some segments of society over the past two years. Inflation was at 11 percent in September, while the government’s increasingly chaotic management of the economy and public finances—including its patronage, nepotism, and misappropriation of state funds—caused widespread dissatisfaction. The freezing of €110 billion in funds allocated to Poland under the EU 2021-2027 budget contributed to the demobilisation of PiS supporters.

Moving in the opposite direction to Slovakia in elections held two weeks earlier, Poland opted for a pivotal change back towards the EU and democracy. The unprecedented turnout confirmed the strong desire of Poles to end the rule-of-law row with the EU and tap the potential of EU investment and recovery funds. Above all, the results showed PiS failed in its attempt to imitate the illiberal and autocratic style of Fidesz in Hungary, which Poles eventually became weary of, especially after Russia’s full invasion of Ukraine.

According to the OGP PRO exit poll, voters’ main concerns in the election were the state of economy (27.8 percent of respondents), security (16.5 percent), reproductive rights (16.5 percent), and the rule of law (16.3 percent). Immigration was important for 7.1 percent of respondents. Crucially, 47.3 percent said that they were worse off than when PiS had taken office eight years earlier – compared to the 36.3 percent that said they were better off. Far more respondents underlined the need to cooperate with the EU than those who thought it was more important for Poland to act independently of the Union (61.1 percent compared to 38.9 percent).

At 74.38 percent, the turnout was the highest since the fall of communism and nearly 13 points above the 2019 result. This means that 3 million more people voted despite the number of eligible voters having decreased by 1.3 million in the last four years. Poles aged between 18 and 29 voted to a greater extent than those aged above 60 years old (70.9 percent vs. 66.5 percent), as did women than men (74.7 percent vs. 73.1 percent). The youth turnout, which was impressive by EU standards, may be connected to the increase in turnout in large cities (82.72 percent vs. 73.44 percent in 2019).

While the oldest generation was lured by lavish increases in pension payments, the younger generations faced the stark reality of paying for the government’s generous handouts from their own pockets. Over the last term (2019-2023) state spending for pensioners increased by more than 1,000 percent.

At the same time, the prospect for young people of owning a house and raising a family has started to fade. In 2022, the number of children born in Poland was 305,000, the lowest since the Second World War). Fewer people deciding to have a child tells of a growing frustration within society. Altogether, prospects of upward mobility have dwindled for the middle-class, despite impressive GDP growth.

With diminishing access to nurseries, schools, and housing the country’s situation started to look grim for the centrist electorate. But the ultimate driver of female and youth mobilisation was government policy against reproductive rights, which resulted in worse healthcare and several fatalities.

EU pressure as a factor

Despite promoting an image of working hard to provide benefits for everyone, it became obvious in the past two years that the PiS government was unable to deliver prosperity for all. At the heart of this was the stalemate with Brussels over the rule of law in Poland and the resulting loss of access to EU funds. Altogether, Poland is estimated to have irrevocably lost €6 billion in EU funds due to the delay.

As pointed out by Kim Lane Scheppele and John Morijn, the European Commission “recognised fake compliance” on the part of the PiS government. The European Commission eventually stood firm after there were reported attempts to strike a compromise and move on.

Half a year before the elections, President Duda did not veto the new law on judicial accountability but instead sent it to the Constitutional Tribunal, knowing that this PiS-captured institution had been already paralyzed by the party’s infighting. The 18-strong parliamentary faction of Minister of Justice Zbigniew Ziobro, the author of many reforms that undermined Poland’s rule of law and international standing, was in no mood to help his main rival in the party, Prime Minister Mateusz Morawiecki. On a number of occasions, Ziobro subverted government attempts at a rapprochement with Brussels. Seeking a stronger card within the party, he took the rule-of-law process hostage. The radicals within PiS had calculated by mid-2022 that this was their only card left to play in order to secure their way back into the next parliament.

The strategic narratives of Ziobro became a smear campaign machine against the opposition and led to attempts to undermine civil society by introducing a foreign agent law, sponsoring a Holocaust speech gag law (later withdrawn), and creating “LGBT-free” zones in municipalities supported by direct subsidies from the agency set up by the Ministry of Justice. Ziobro appointees ran a hate-speech trolling social media network inside the ministry that targeted judges. His team also secretly bought the controversial Pegasus surveillance software. Finally, Ziobro’s group was at the forefront of strategic lawsuits against the media and civil society. In this, they were not alone. In over 90 such lawsuits since 2015 against just one independent media outlet, Gazeta Wyborcza, the most prominent plaintiffs included not Ziobro but also PiS head Jarosław Kaczyński and many others associated with the party.

Ziobro’s deliberate demolishing of democratic institutions has driven a wedge into Poland’s political culture and his methods were mainstreamed by PiS officials, including President Duda, who actively participated in attacking the previous order and in the politicisation of the courts.

The EU eventually developed a set of new instruments that slowed down the government’s takeover of the state. But it did not prevent control of many institutions especially in the first years of the PiS government until civil society mobilised and triggered meaningful political initiative. Thousands of Poles took to the streets in 2017 to defend the independence of the courts and this fed into more assertive EU action. Civil society pressure not only put the spotlight on Poland internationally; it also empowered resistance from judges, many of whom had been unlawfully sidelined or suspended but fought back to restore their authority with societal backing.

This was fundamental for the later political and bureaucratic dynamic. It took over a year before the Court of Justice of the European Union accepted Polish court system cases for review after it ruled that the violation of the independence of a judiciary is an infringement of EU law that could trigger a complaint by the European Commission to the court, as explained by Paweł Marcisz in 2018, but the European Commission did not use this option.

It took until 2017 for the European Commission to trigger the Article 7 procedure and until 2012 to finalise a rule-of-law conditionality instrument. Impressive grassroots democracy activism was essential to pushing along these political steps. PiS’s boorish way of state capture was unlike the legalistic, “salami-slicing” approach taken by Viktor Orbán in Hungary and the EU gave it less leeway.

International factors as a turning point

Polish democracy was also fortunate to benefit from international factors. After the 2020 presidential election and subsequent repression in Belarus, many left the country—and Poland welcomed a lot of these refugees. The government did not act solely on humanitarian principles; PiS had tried to make President Alexander Lukashenka an ally since 2016, but it saw an opportunity to boost the IT industry through relocation programmes for skilled Belarusian facing massive persecution.

Belarus then organised the smuggling of migrants, primarily from African and Asian countries, into Poland. Despite the PiS’s securitisation of the border issue that resulted in massive human-rights violations, the EU supported Poland’s response. In 2021, the EU effectively adopted a two-track approach in which it stood by Poland where it mattered for security as if there was no rule-of-law question but also retained the conditionality mechanism as if there was no security problem. While this allowed for some negotiating space with Poland, domestic reasons meant the government was unable to deliver the agreed compromise steps. Furthermore, the PiS government continued looking for allies to back it on the EU stage. Hence, in December 2021, Prime Minister Morawiecki hosted a meeting of far-right EU parties at the Warsaw Summit – a mix of strange political allies, most of whom had pro-Russian inclinations, to show that the Warsaw-Budapest illiberal axis would grow.

This took place while the United States was warning about Putin’s plans to invade Ukraine. When the full invasion began in February 2022, Polish activists already energised by their participation in the earlier rule-of-law actions and in humanitarian relief on the border with Belarus organised to welcome Ukrainians, and they were followed by society at large. The energy and goodwill showed by Poles who cared about people in need as much as for the rule of law, re-energised efforts to support Poland’s democracy across the EU.

Civil society and local communities were the first and, for a long time, the only ones to respond to the crisis in Ukraine, until the government refocused from fighting the democratic order to supporting Ukrainian refugees and the Ukrainian army. It followed the impressive response by society and had to cut ties with Orbán, earning credit from its Western allies. But PiS disbanded the illiberal camp not because it wished to but because it had to.

From that point, none of its illiberal tactics seemed to work well for PiS. The United States’ military support came with words of support for democracy and the rule of law. Although many considered this late and insufficient, it stood firmly behind Poland’s free media as part of its additional assistance to civil society in Central Europe. When PiS wanted to sideline Tusk under the false pretense of being a Russian stooge, EU and US pressure along with popular unrest prevented foul play against the opposition.

PiS lost the elections despite the unfair electoral race and mobilising additional voters. In the months preceding the vote, it lost the political initiative and the ability to shape public narratives, which had driven its successes in 2015 and 2019. Perhaps this is because these narratives were designed for better times and different challenges, or because, eight years in government left PiS unfit for a tough and competitive electoral contest.

By contrast, Tusk led a very engaging campaign and utilised the attacks on him to mobilise crowds of supporters as well as opponents, listening to them and answering their questions. But, while he was a better communicator, he stumbled in the only television debate, allowing the leaders of the two smaller democratic outfits to shine. This has for effect that they managed to attract former PiS and undecided voters who might not have voted for Civic Platform.

Tusk made the right call to trust the new generations of democracy supporters who came to Warsaw for massive rallies with estimated attendances between 400,000 and 800,000 each. Civil society veterans and young activists mobilised voters better than any party had done since the Solidarity movement in the 1980s.

Conclusion

Ultimately, international support and pressure from the EU institutions proved effective. Poles trust the larger EU framework that allows for joint action despite having conflicting perspectives on national interests. And yet none of the above forces would have been enough on their own or in different times. Poland’s new government may now be successful if it boldly pursues innovative ways to restore the rule of law despite potential resistance from the president. The EU should watch closely how this plays out. Ultimately it should adapt policy innovations of the past to the new political reality. As the new Polish government tries to restore democracy, the Commission should help by fast-tracking remaining funds. It should also learn what democracy restoration paths it could further support when other countries in the EU, like Hungary, might eventually also turn away from their illiberal experiments.

Author