Poland's many problems – and how to solve them

Just when Brussels was enjoying a much-needed break on its never-ending rule of law brouhaha with Poland, all began to go South in the Eastern front – again. It was not Polish Prime Minister Mateusz Morawiecki’s fault, this time – or, at least, not at first. Morawiecki’s latest gamble on the independence of Poland’s judiciary pales in comparison with the antics of his next door neighbour, Belarusian dictator Alyaksandr Lukashenka. In retaliation for sanctions the EU imposed on his regime because electoral malpractice and violent suppression of peaceful protests by security forces (and a hijacked plane), Lukashenka has deliberately transported large numbers of migrants to the border between Belarus and its EU neighbours Latvia, Lithuania and Poland. Thousands have crossed irregularly from Belarus to the EU. While the situation in Latvia and Lithuania has improved, largely because both countries have sought, and received, support from the EU’s border agency Frontex, things are not looking up at the border between Poland and Belarus. Many migrants have died there and many others remain stranded in the Białowieża/Belavezha forest between the two countries, where temperatures are already falling below zero degrees Celsius at night.

It is wrong to call what is happening at the border between Poland and Belarus a migration crisis, or to compare it to Europe’s situation in 2015 and 2016. Back then, over a million people entered Europe irregularly, mostly by sea. The 2015 crisis was driven by the conflicts in Syria and Afghanistan, and instability in parts of Africa. Neighbouring countries such as Libya, Morocco and Turkey tried, then and subsequently, to use their ability to stop the flow of migrants to extract concessions from the EU, but they themselves were not responsible for the initial surge in migration. The current situation is the latest phase in a confrontation between the EU and Belarus, only made worse by the Polish government’s current stand-off with Brussels.

Poland’s nativist-conservative government did not seek, or want, this crisis. But it surely is not letting it go to waste. By having refused to ask the EU’s border and asylum support agencies for help, the Polish government ensures that nobody steals its self-appointed role as “ultimate defender of the land”. Banning EU staff and other international organisations, including NGOs, and media, also serves another purpose: it allows the Polish government to engage in systematic pushbacks –a practice that breaches both EU and international laws. EU countries can not send people back to dangerous places. Belarus may not be considered as dangerous as Afghanistan, for example, but the problem is that once they have ferried migrants from Minsk airport to the EU’s Eastern border, Belarusian border guards (or the military, reports are unclear) force them to stay there, without food or shelter, and prevent them from returning to Minsk or travelling elsewhere in Belarus. And yet, Poland does not offer them the chance to apply for asylum, or provide them with at least temporary accommodation and food.

The EU has been firmly behind Poland in facing up to Lukashenka’s dirty tactics. While Brussels cannot force Warsaw to accept support to make reception conditions at the border more humane, it has put its diplomatic machinery to work. Both German Chancellor Angela Merkel and French President Emmanuel Macron have had calls with Lukashenka and Putin (who many suspect is behind the whole thing). The EU has imposed sanctions on air carriers, companies and individual who may have been involved in the smuggling of migrants to Schengen’s Eastern border. This is the right thing to do: Lukashenka has manufactured a migration crisis that does not exist, to stir fear amongst Europeans. The EU should treat it like what it is: a hybrid attack requiring a strong diplomatic response and humanitarian support for those at danger on the border.

Brussels’ other problem with Warsaw is less dramatic at first sight. But it will probably be more tricky to solve, and will likely take more time and a considerable amount of political capital from Brussels. For the past seven years, the Polish government has introduced sweeping reforms to the country’s judiciary that has put it at loggerheads with Brussels. Both the European Court of Justice and the non-EU European Court of Human Rights have said that these reforms compromise the independence of the judiciary in Poland. But instead of backing down, the Polish government has doubled down on its challenge to Brussels, lastly by launching a procedure before its captive Constitutional Court questioning the EU’s legal order and Poland’s place in it.

Neither Morawiecki, nor PiS (nor, certainly, a majority of Poles) want to take Poland out of the EU, at least for now. Then again, David Cameron did not intend Britain to leave the Union. PiS may be putting on a show for a local audience, but it could misjudge the ending – particularly if the party’s hawks succeed in radicalising both voters and party members. The European Union should also tread carefully. The EU will not stop democratic backsliding in Poland and elsewhere by judicial and financial sanctions alone. To solve a problem like Poland, the EU needs a three-pronged strategy.

The first element of this plan should be peer pressure. Poles may have voted PiS into office, but they did not wake up one day and decide openly to disregard European law and court rulings. This is the government’s strategy, not Poland’s. The first response should therefore come from Morawiecki’s European counterparts.

In the medium term, the Commission should take a number of legal steps, none of them risk-free. First, it could trigger the EU’s conditionality mechanism against Poland. But doing so would be tricky. Another option for the Commission is to further delay, or deny, approval of Poland’s national recovery plan. Eventually, the EU will need to change the way it thinks about the relationship between EU values, the Union’s legal order and its member-states’ rights and obligations.

The problem of Poland cannot be solved without the Polish people. To make PiS accountable for the confrontation with the EU, Brussels and EU capitals need to be unambiguous: in standing up to the current Polish government, the EU is on the side of the Polish people because this is their European home, too.

Camino Mortera-Martinez is a senior research fellow at the Centre for European Reform.