The EU’s Role in Poland’s Democratic Turnaround

In Poland’s parliamentary election on 15 October 2023, Law and Justice (PiS), a right-wing party that had ruled the country for the past eight years, got 42% of the vote, which translated into 194 out of 460 seats in the lower chamber. Without a parliamentary majority and unable to find a governing partner, PiS had to cede power to a coalition of opposition parties: the centrist Civic Coalition (KO), the Left, and the Third Way, an alliance of rural and Christian-democratic parties. With over 34% of the vote for KO, 14% for the Third Way, and 5.6% for the Left, the new ruling coalition won a total of 248 seats, giving it a parliamentary majority.

After the change of government, a fundamental question arose about the new coalition’s readiness and ability to reverse the previous administration’s moves to harm Poland’s democratic standards. This question was important not only to Polish citizens but also to the European Union (EU). By reacting too fast, closing infringement procedures, and lifting financial penalties before any changes had been made, the union would risk losing its credibility and its most important leverage. But by reacting too slowly, it would risk undermining the credibility of the new ruling coalition, boosting anti-EU sentiment in Polish society, and enabling the return of Eurosceptic populists to power.

The EU’s response to Poland’s democratic turnaround was therefore a difficult balancing act, especially after eight years of European support for pro-democracy civil society organisations (CSOs).

Pre-election mobilisation

Poland’s transition of power would not have been possible without the large-scale civic mobilisation that took place before the election. According to a study conducted by the Batory Foundation shortly after the election, voting was preceded by 27 major get-out-the-vote campaigns, organised not by political parties but by various formal and informal civic initiatives. These campaigns were particularly successful in engaging undecided voters, especially young people and women.

The Batory Foundation survey showed that turnout had increased by approximately 7 percentage points as a result of last-minute mobilisation – hesitant voters deciding in the last two weeks before election day to go to the polls. Around two-thirds of voters admitted that get-out-the-vote campaigns had been an important factor in their decision to vote. Civic mobilisation resulted in a record turnout of 74.3% in the 2023 election, much higher than that in the elections of 2019 (61.7%) and 2015 (50.9%), both of which were won by PiS.

Although many voters did not have a clear party preference until shortly before the election, the foundations for the shift in political power were laid long before 15 October 2023. Two terms of PiS government were marked by a series of confrontations with social and professional groups over crucial aspects of democracy. Just after PiS came to power in 2015, it passed a law that did away with the independence of the Constitutional Tribunal. Later, the government adopted a series of laws that undermined the rule of law in Poland, provoking massive street protests and legal action from judges against Poland in the European Court of Human Rights (ECtHR). Meanwhile, the European Commission decided to trigger proceedings to suspend certain of Poland’s EU membership rights.

The PiS government also started illegal logging in Białowieża, one of Europe’s last primeval forests and a national park, provoking strong resistance from environmental organisations and concerned citizens, who successfully petitioned the commission to impose financial sanctions on Poland until the logging was stopped. A ruling by the PiS-controlled Constitutional Tribunal seriously limited access to legal abortion, sparking the biggest street demonstrations in Poland since the fall of the communist regime in 1989, with over 430,000 people protesting.

The EU was important for sustaining civic resistance in the years from 2015 to 2023, and its responses to Poland’s democracy crisis gave many CSOs a strong sense of achievement. But the union was not at the top of voters’ lists of priorities in the 2023 election, at least not directly. As indicated by opinion polls conducted shortly before the vote, the key issues were access to healthcare, rising living costs, and security, which was threatened by the war in Ukraine.

There was, however, a failed attempt by PiS to vilify the EU in a referendum organised on the same day as the election to galvanise the party’s supporters. Alongside three other questions, voters were asked “Do you support the admission of thousands of illegal immigrants from the Middle East and Africa, in accordance with the forced relocation mechanism imposed by the European bureaucracy?” Despite the record turnout in the election, only just over 40% of voters took part in the referendum, meaning that its results were not binding. This suggests that many voters saw through the government’s misuse of the referendum and refused to be manipulated by the anti-EU rhetoric of the question on migration.

Instead, the election remained focused on domestic issues. Get-out-the-vote campaigns successfully presented voting as an act of civil disobedience rather than a civic duty. Going to the polls was portrayed as a chance not only to change the government but also to stop Poland’s democratic backsliding and restore a vibrant democracy in which the voices of different civic groups would be heard and addressed. As some commentators remarked shortly after the election, turnout was the vote’s true victor. The election was decided by the previously undecideds – hesitant voters concerned about the state of democracy rather than the mobilised electorate of any particular party.

EU support for civil society during the PiS government

During two terms of PiS government in 2015–23, the EU was a crucial partner for many CSOs and civic initiatives concerned about the foundations of democracy in Poland. In some cases, the European Commission supported the efforts of civic organisations in opposing certain governmental policies by imposing sanctions and penalties or exerting pressure on the government.

One such instance was the battle over the rule of law and judicial independence. When PiS began to reform the judicial system, first by taking over control of the Constitutional Tribunal and then by undermining the independence of the courts, thousands of people took to the streets. Demonstrations were followed by lawsuits against the Polish state in the ECtHR by judges who claimed that the government had undermined their independence. The ECtHR ruled against Poland in many of these cases.

As one prominent lawyer representing the judges at the ECtHR told me in an interview, defending the rule of law required not only “finding brave judges in Poland, but also a sympathetic ear in Europe”. In addition to preparing court cases, legal activists were bringing the threats to Poland’s rule of law to the attention of the European Commission. As a result of these efforts, and in the face of a lack of genuine dialogue with the Polish authorities, on 20 December 2017 the commission started an infringement procedure against Poland in the European Court of Justice under article 7 of the EU treaty.

Another case of CSOs successfully appealing to the EU institutions to take action against harmful policies of the Polish government was the plan to launch extensive logging in the Białowieża forest. On 19 April 2016, Client Earth Poland and six other environmental organisations submitted a complaint to the commission against the government’s plan for the forest. After reviewing the complaint, the commission took the case to the European Court of Justice, which ruled in April 2018 that the Polish government had failed to fulfil its obligations under the EU Habitat Directive. Threatened with serious financial sanctions, the government stopped logging in Białowieża.

The advocacy efforts of Polish CSOs in the EU were also successful in limiting discriminatory measures against Poland’s LGBTQ+ community. In 2019, after the mayor of Warsaw signed a declaration of respect for the rights of this community, several PiS-controlled local councils across Poland proclaimed themselves “zones free from LGBT ideology”. On 18 December, the European Parliament passed a resolution expressing concern with these so-called LGBT-free zones and urged the commission to monitor EU funding for these municipalities. In June 2021, the commission wrote to the governors of five provinces, warning them that some €150 millions of EU funding would be withheld if they did not revoke their anti-LGBT proclamations. By late September, all five provinces had done so.

Financial sanctions were very effective in stopping democratic backsliding in some areas, but the PiS government’s hostility towards many CSOs that protested against its actions resulted in attempts to limit European funding for their activities. One such example was the conflict over EEA (European Economic Area) and Norway Grants, which the government did not want to be distributed by independent CSOs that it perceived as opposing its policies. Warsaw signed the cooperation agreement for the grants only after several rounds of negotiations when donor states threatened to cut the funding if it were not distributed independently of the government.

Such conflicts over European funding motivated the Polish civic sector to call for financing mechanisms independent of the government’s control and for more civic oversight of the way the authorities spend European money. These advocacy efforts led to the creation of the Citizens, Equality, Rights, and Values programme and the formation of the civic Monitoring Committee of the National Recovery Plan for Poland.

These cases of successful advocacy and decisive action by the EU institutions were crucial for Poland’s democratic turnaround. They energised Polish civil society and helped it win some important battles against the government’s infringements of democratic standards. Without the successful interplay between Polish CSOs and the EU, democracy in Poland would undoubtedly have eroded further and the change of power in 2023 would have been much more difficult, if not impossible.

The EU’s reaction to Poland’s democratic turnaround

During two terms of PiS government, many Polish CSOs either intensified their advocacy efforts at the EU level or developed entirely new methods of successful European lobbying. As one activist working for the LGBTQ+ community put it in an interview with me, “we were in an ongoing dialogue with the commission”. Therefore, it is no surprise that for many CSOs, the EU became a crucial partner and a guarantor of democratic values.

After the 2023 election, there were high expectations not only that the new government would restore fundamental democratic standards but also that the EU would be a guardian of a genuine democratic turnaround in Poland. When the new government took power, the EU’s article 7 procedure was still in place and EU funds were still frozen. The union therefore had very strong leverage to ensure that the new ruling coalition would take serious steps towards restoring the rule of law and an independent judiciary.

At an EU Council meeting on 20 February 2024, Minister of Justice Adam Bodnar presented an action plan to restore the independence of Poland’s courts. According to the plan, the offices of justice minister and prosecutor general would be separated to free the latter from the political influence of the ruling party, and the judgements of the ECtHR would be institutionally enforced. The commission welcomed the plan and on 29 February issued a positive assessment of Poland’s first application for funds from the National Recovery Plan.

On 6 May, the commission announced that it had finalised its review of the rule-of-law situation in Poland under article 7 and concluded that there was no longer a risk of a serious breach of the rule of law. The commission stated that the action plan presented in February and concrete steps taken by the government were directly relevant to its decision. Commission President Ursula von der Leyen congratulated Polish Prime Minister Donald Tusk on this “important breakthrough” and said that “the ongoing restoration of the rule of law is great for the Polish people and for our Union as a whole”.

However, by the end of 2024, all of the major judicial institutions listed in the action plan were still to be reformed, and their independence was still compromised.

One particularly important case is the Chamber of Extraordinary Control and Public Affairs of the Supreme Court. According to a December 2023 ruling of the European Court of Justice, the chamber is not an independent court as its judges were nominated in a procedure that did not guarantee their independence. In December 2024, the chamber ruled that the Polish electoral commission had to accept the PiS party’s financial report for its 2023 election campaign, which the commission had initially rejected because of serious irregularities. The commission accepted the report in order not to risk deepening the crisis, as ignoring the chamber’s decision could have undermined the legality of Poland’s upcoming presidential election; but the commission stated that its acceptance of the report was conditional on the chamber being an actual tribunal, which, according to the European Court of Justice, it is not.

The crisis is therefore far from over. Other judicial institutions that are crucial for the rule of law have also not yet been reformed. A bill to restore the independence of the Constitutional Tribunal, prepared by a coalition of legal and democratic CSOs, was adopted by the ruling coalition but has not been signed by President Andrzej Duda. The fact that the presidency is still in the hands of a PiS politician is crucial, as Duda previously signed off almost all of the changes that undermined Poland’s judicial independence and is now effectively obstructing attempts at restoring it. For example, he sent the bill reforming the Constitutional Tribunal to the tribunal itself for review.

There are, however, some changes announced in the action plan that, paradoxically, would benefit the previous ruling camp, such as the separation of the offices of justice minister and prosecutor general. Reversing the 2016 decision to merge the two roles would strengthen the rule of law but would also make it more difficult for the current government to undo other changes by the previous one. Although the bill was adopted by Poland’s cabinet, it has not yet been passed by the country’s parliament.

The EU’s response: adequate or premature?

Restoring the rule of law in Poland is a difficult process, and it was already clear before the 2023 election that if the opposition won, necessary changes would not happen overnight. But the question that arises is whether releasing recovery funds and closing the article 7 procedure actually helped or made things more difficult.

On the one hand, these steps certainly boosted the credibility of the current ruling coalition, as improving Poland’s standing in the EU and unblocking recovery funds were important to many voters. On the other hand, these decisions did away with the EU’s strong leverage, which allowed the union to make sure that necessary measures to restore the rule of law were not only planned but also implemented. Without this leverage, the Polish government lacks an important incentive both for changes to reverse the most blatant violations of judicial independence and for measures that restore the rule of law but make governance more complex, such as separating the offices of justice minister and prosecutor general.

What is more, the strong response of the EU institutions and the successful European advocacy efforts of Polish CSOs in 2015–23 show that protecting democracy and civic rights is possible even in adverse political conditions when the government does not respect certain democratic standards. The examples of revoking the so-called LGBT-free zones and stopping the illegal logging in Białowieża show that even authorities hostile to certain values might yield to financial pressure.

EU pressure could therefore play a role in persuading Duda not to oppose fundamental reforms to restore the rule of law in Poland. After all, the president cannot run for re-election in 2025, as he has already served his constitutional limit of two terms. That could grant him some independence from his party and encourage him to put his international standing above party loyalty in the last months of his presidency.

Removing all leverage before changes have been implemented also risks damaging the EU’s image in Poland. While many Poles appreciate the unblocking of the recovery funds, which have brought respite after the Covid-19 pandemic and the post-pandemic inflation, large segments of Polish society perceive the EU not only as a source of crucial financial assistance but also as a guarantor of democratic standards. This perception was particularly strong before Poland’s EU accession in 2004, when the challenges of adjusting Polish public institutions to EU standards were perceived as a chance to genuinely improve their performance.

Currently, the EU’s image in Poland, as shown by recent polls, is not so decisively positive. For example, according to a study by the Centre for Public Opinion Research, the number of Poles who complain about the primacy of EU law over national law has grown from 6% to 15% in the last 10 years. A February 2024 study by More in Common Poland showed that 57% of Poles have a generally positive view of EU membership, 33% are neutral, and 10% see it as negative. Meanwhile, 41% think that European integration has gone too far.

Poland has been an EU member for over 20 years, so it is only natural that initial enthusiasm has given way to a certain degree of scepticism, particularly in the face of European debates about the future of the union, democratic backsliding in some member states, and the fairness and efficiency of EU climate and migration policies. In a country that is trying to emerge from a democracy and rule-of-law crisis, the EU’s image is particularly vulnerable. The EU should not be too quick to abandon the measures that allow it to continue acting as a guarantor of democratic standards.

 

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