NIAS Europe Monitor

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CWA # 594, 31 October 2021
NIAS Europe Monitor
Poland, EU and PolExit. It is complicated, for three reasons

  Joeana Cera Matthews 

Poland has to leave the bloc or stay within by adhering to the rules. Warsaw cannot 'have the cake and eat it too'.

On 12 October, a Polish Constitutional Tribunal ruling that declared the primacy of Polish law over the EU law came into force. Poland and the EU have had a long-standing feud over EU values. Against this backdrop, the highly-criticized Constitutional Tribunal passed the ruling that challenged the rule of law and the European Court of Justice (ECJ) supremacy. The questioning of the critical features of being an EU member has infuriated the bloc. 

Unlike Brexit, there will not be a Polexit. Three reasons why
First the geography. The UK, being an island, was already cut off from mainland Europe. Post-Brexit, the issue that persists is primarily regarding Northern Ireland remaining within the EU's single market. Every other issue was negotiated and dealt with during the mediation. Poland's exit is not going to be half as smooth. This is because, unlike the UK, Poland is very much a part of mainland Europe. Cutting off from the EU would inevitably imply losing all trade routes and depending on other means of importing goods. Trade would be severely affected. 

The Polish economy, if Polexit happens, is destined to fail. Even if Polexit happens, Poland will continue to be surrounded by countries that are still members of the bloc; this means extensive border checks and customs procedures for goods coming in and out of Poland. For the current Polish government, this crisis would create multidimensional problems. The economic crisis would lead to further humanitarian and socio-economic problems, which will all be too hard for Poland to contain and would only contribute to further chaos.

Second, the public opinion in Poland is against the exit. Unlike the British, the Poles do not back the exit; in UK, the idea had popular support prior to the exit as they voted in favor of leaving the bloc. As rumor mills began of an imminent Polexit, the Poles began to panic. Polish citizens repel the very thought of leaving the bloc. They intend to remain within, enjoying all the benefits of being an EU member. As staunch supporters of the EU, Poles are too accustomed to the benefits of being an EU insider. 

Third, an unpopular state opinion. Fortunately for the citizens, the Polish government is not keen on leaving the bloc either and has reiterated this on multiple occasions. Even Poland's Prime Minister Mateusz Morawiecki himself, assured that there would not be a scenario in which Poland was to leave the EU. He said: "We are here, we belong here and we are not going anywhere." Therefore, Polexit being a reality without the backing of the government is highly unlikely.

What about the EU on Polexit? Are there restrictions in Brussels?
The EU's retaliatory action to the Polish ruling has been complicated and prolonged. Sanctioning a member state is a significant move, and the bloc has delayed any action against Poland due to the more significant implications it holds. Nonetheless, the bloc has decided on 'concrete actions' if Poland' fails to bend' and revert the ruling. The first tool is a legal challenge to the ruling via triggering Article 7 of the EU treaty. Article 7 deprives member states of breaching the EU law of the 14 rights provided to them.

The second measure that the EU is expected to resort to is the 'rule of law conditionality' mechanism. This mechanism aims at providing increased transparency to the handling of the EU budget while promoting anti-corruption and judicial independence. Poland has, however, disagreed with the extended definition and stated that the mechanism does not concern Poland as corruption is not an issue faced by them. The EU has hit back at Warsaw, stating that the application of the mechanism according to their preferred definition would ultimately occur. They lack an independent judicial system, and such an absence, the EU claims, will result in corruption. 

The third tool is likely to hurt Poland the most. The EU believes that financially choking the Polish economy will ensure the ruling's withdrawal. The EU withholds Poland's pandemic recovery funds amounting to nearly EUR 24 billion. The failure to receive this money will impact Polish society more than it does the government. The lack of funds has already affected several provinces in such a severe manner that they have backtracked on their conservative ideologies to receive the EU funds. Several provinces were reported to have repealed their 'LGBT-ideology free zones' status, after the EU refused to forward the funds owing to their continued violation of the EU values. In its latest efforts, the EU ordered Poland to pay a daily fine of EUR 1 million in addition to the existing fine of EUR 500,000. Poland, however, refused to make any such payment. The EU, concerned about their money reaching the rebellious state of Poland, now requires it to convince the European Commission that the reconstruction funds, if provided, would be used following the EU laws. As a French MEP stated: "(the) Polish 'political choice comes with consequences attached.'" 

The EU's lack of practical mechanisms to punish Poland despite its values being risked has irked the bloc. The Tribunal questioned the legal order of the EU, causing legal and political uncertainty. It cannot remove or sanction its member without garnering widespread criticisms. Even if the EU can find a solution that favors their values dearly upheld, it would imply risking its agenda. Every major policy decision requires the bloc's unanimous vote; upsetting Poland will not help. An event wherein the EU budges on Poland's challenge is when the bloc will see its end – the supremacy of the rule of law is the bloc's foundation. Despite the MEPs' promise of 'not allowing commission values to be put at risk,' the union currently lacks a structure that would ensure this. Thus, the EU cannot afford to go into battle with one of its own. 

To conclude, Polexit is an unwinnable one for both parties. Poland has to leave the bloc or stay within by adhering to the rules. Warsaw cannot 'have the cake and eat it too'.

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