Poland vs EU - is a compromise possible?

To understand why Law and Justice believes its reforms are required, it is useful to look back at the collapse of communism in 1989. Did Poland consolidate liberal democracy after 1989?

Poland's successful transition to liberal democracy seemed to be confirmed in the EU round of enlargement in 2004. The EU found that Poland met the political and economic requirements for membership as set out in the 1993 Copenhagen Criteria.

However, the negotiated end to communist rule in Poland in the form of the 1989 Roundtable Agreement reveals that the post-communist democratic transition was flawed.

While formalising the fall of the communist regime, the roundtable settlement preserved a degree of communist presence in the Polish parliament, known as the Sejm.

As part of the deal struck between the communists and the Solidarity opposition, only 35 percent of seats in the Sejm were contested freely. Poland had to wait another two years to hold its first fully-free parliamentary elections.

The consolidation of a liberal democratic system in Poland was also compromised during its process of European integration.

In adopting a pro-European agenda, former communist officials successfully held on to positions of power. It was the communist successor, the Democratic Left Alliance, that initiated Poland's application to join the EU in 1994.

Aleksander Kwaśniewski, who was a member of the former ruling Polish United Workers Party, became president of Poland in 1995. His administration accelerated Poland's EU accession process through enshrining a strong relationship between the Polish executive and the Sejm under the 1997 Constitution.

The failure to confront Poland's flawed post-communist transition has had profound implications for the country's domestic politics.

Popular support for Law and Justice grew after it claimed the political direction that Poland had taken since 1989 undermined its democratic consolidation and traditional Catholic values.

In the 2015 parliamentary election, PiS became the first political party in Poland to win an outright majority since the collapse of communism.

Now in government, Law and Justice says it has a democratic mandate to fix the compromised post-communist transition.

PiS swiftly took control over key pillars of the Polish state, including the media and the intelligence services.

In 2019, the Polish government went even further. The prime minister, Mateusz Morawiecki, vowed to implement an overhaul of the judiciary. He proposed establishing a chamber with the controversial power to discipline judges for their conduct and the content of their rulings.

The preservation of communist presence in the Sejm under the Roundtable Agreement and the presiding over the EU accession process by ex-communist officials also had a powerful impact on Polish-EU relations.

The changes that Law and Justice insist are needed to address the flawed post-communist transition come into conflict with core EU values in democracy and the rule of law. The relationship between Poland and the EU deteriorated sharply as a result.

In 2017, the EU Commission invoked Article 7 of the Treaty on European Union. This initiated a process that included a measure suspending Poland's EU voting rights, the most severe sanction the commission could impose on a member state.

The commission, however, is finding it difficult to force Warsaw to suspend its reforms.

After Ursula von der Leyen, the commission president, vowed to punish Poland for challenging the supremacy of EU law, Morawiecki argued that EU institutions have no right to interfere in a Polish domestic matter.

Despite the European Court of Justice imposing a €1m-a-day fine on Poland, the PiS government remains intent on implementing further changes to the Polish judicial system.

Is Poland heading for Polexit?

The dispute is raising questions about Poland's place in the EU. The deeply entrenched positions on both sides means that a resolution will be hard to find in the near future.

Although a transgressor in the eyes of Brussels, Poland remains resilient. Law and Justice believes its judicial reforms are essential to consolidating Poland's post-communist democratic transition and has nothing to do with EU affairs.

As for the EU, the adoption of a purist view on the rule of law in the commission risks exacerbating Poland's drift from fundamental EU values and potentially the EU altogether.

Angela Merkel, speaking at her last European Council summit as German chancellor, warned of an "ever-widening spiral" of conflict.

A more nuanced approach on rule of law reform, which takes into account the legacy of 1989, may help bring the feud to an end. With the communist past still haunting Poland, tensions only look set to deepen.