The effect of Van Gend en Loos was to take Community law out of the hands of politicians and bureaucrats and to give it to the people. Of all the Court’s democratising achievements none can rank so highly in practical terms
– Former Judge of the Court of Justice the Late Federico Mancini
As we gear up for the most consequential elections in Poland since 1989, the situation on the ground after 8 years of the paranoid polarizing and no-holds-barred politics, forces all those concerned about the future, to ask where Poland is heading. On 13 October 2023, we must understand that POLEXIT is much more than a mere dispute over institutions, rule of law, judicial independence, etc. What is at stake now is incomparably greater. It is the defense of a certain way of life, values and belonging to a community of law and values, a civic Poland in Europe and Europe in civic Poland and finally of “Me and You” as part of Europe.
Polexit. What’s really in a name?
The European Union’s liberal foundations are challenged by one country, something that no one saw coming in 1952. The ruthless logging in the Białowieża Forest was the first step towards POLEXIT, as I have already predicted in August 2017. Attacking the preliminary ruling procedure, initiating disciplinary proceedings against judges who apply EU law, failing to implement the judgments of the Court, and openly ridiculing the Court, this is already, unfortunately, POLEXIT. In the past eight years, Poland has offered an aggressively and unilaterally antagonistic understanding of the initial decision to come together. Ad hoc politics and the irrepressible lust to maintain power per fas et nefas (the volte-face on Ukraine is the clearest evidence of this political degeneration and of the shameless pandering to the electorate) are more important than our membership in the Union and the image of the country. According to PiS rhetoric, “We Poles” are unique in that we differ fundamentally from others in our understanding(s) of constitutional essentials, since even the rule of law or judicial independence allegedly mean something different in Poland than elsewhere, and there is no consensus in this regard at the core level with other Europeans. Europe is being told that according to the Polish “understanding” of the rule of law, judges and prosecutors can be dismissed/transferred by fax from the ministry, there are disciplinary proceedings for referring questions to the Court of Justice and that the decisions of the Court can be ignored as allegedly imposing on us “foreign” legal standards and values. In such a situation, the core values stabilized at the level of the European Union member states in contrast to our “understanding” of the community and its values, must lead and have led to an inevitable clash.
A challenge to the community of citizens
The attacks on the Court of Justice and contempt for the Union not only marginalize Poland within the community and ultimately push Poland out of the Union, but also turn the Polish citizen back into a servant of the state and a second-class European citizen, deprived of the protection afforded to citizens in other countries by European law and the independent courts. This is a return to a world in which we the citizens are cast in the old role of somebody to shine only through the reflected light of the state and to obey its will. The citizen is to live in the shadow of the “constitution of fear”. Here we come to the essence: what should it mean for a citizen to be part of the integrated Europe? Thanks to European integration, the citizen no longer belongs solely to the territory demarcated by the borders of “his” state of origin. He makes his own choices and decides where he wants to work or buy a car. European law has survived precisely because it has been and is being applied in the individual citizens’ cases in the local courts of the member states. The spirit of integration, captured by the opening words of Judge F. Mancini, has been to liberate the citizen from the strait jacket of the all-powerful state, in whose shadow the citizen has hitherto lived. The contradiction between the European vision and ideal and the doctrine according to which PiS lives and breathes is thus fundamental. While, according to PiS narrative, the citizen is supposed to live under the shadow of a “constitution of fear”, which allows the state unlimited discretion to interfere in his rights and life, post-war Europe has promoted a constitutional culture of restraint and limitation. While the vision of the state adhered to by PiS seeks to handcuff the citizen, the Union frees us from this statal framework and opens up new possibilities. While European law offers a chance to win over the powerful state (the recovery of excise tax by Polish importers of used cars is one of many examples), PiS narrative understands “a good citizen” as a controlled citizen, convinced that the state’s decisions are always good for him, and meekly accepting them. From captured state to captive mind …
Before our eyes, a spectacle is playing out in Poland, with everyone playing their part on a political game board called “How to manipulate the law and institutions” and “How to destroy the law and institutions when they resist”. This spectacle of hatred is played out to the accompaniment of sovereignty war rhetoric, and the soloists are government representatives who outdo each other with ignorance, repeated contempt of court and tearful scenes of martyrdom in the hope that their electorate will see and appreciate it. One dreads to think what will happen when citizens buy (have they already bought?) this politically orchestrated spectacle and, on October 15, 2023, forget the last eight years of contempt shown by the state to the law, the Constitution and themselves.
However, this spectacle becomes a historical drama when questions about Poland’s participation in the Schengen area are increasingly heard in the background. Here it is no longer about the Court, the Supreme Court, the courts, etc. It is about all of us citizens, about our freedoms and liberties that European law guarantees us, which we will lose when POLEXIT becomes a ghastly fact. That’s why it’s the citizens who must ask today about the far-reaching European consequences (for themselves) of the paranoid policies of PiS, where everyone is our enemy plotting to the detriment of Poland – the chosen one among the nations –, where Poland repeatedly questions the foundations of the Union, rejects the authority of the courts and court rulings, and has turned disdain for the political adversary, corruption and insolence into “virtues of governance”. The citizens must understand that with the election of a party that rejects the separation of powers, tolerance of others, promotes chauvinism, division, and elevates distrust and pettiness, there is also a European price to be paid one day.
The Union is only enforcing the terms of the contract we have voluntarily signed in 2004. Europe will not defend itself unless each of us is ready to defend it here and now. Recalling the foundations therefore rises to crucial importance. We cannot take Poland’s membership in the EU for granted and as part of our everyday life. Freedom to travel, to work, to shop in Berlin, to vacation in Greece – all this cannot be taken as given. Have we forgotten that the border separated us from Europe only 19 years ago, and that a passport was essential to travel? When we give up on the community that we are part of, we must also be ready give up this opening and all the opportunities that come with it.
The power of dissent
Being part of the community of values and law to which the generation of my grandparents, parents and mine too aspired to, and dreamed of, means that its members voluntarily adopt certain rules of conduct that bind everyone as a condition of living side by side as equal partners and neighbors, no longer perfect strangers. Diversity (the perspective of member states) is constantly seeking an accommodation with the pursuit of uniformity (the perspective of the Union). For that to happen, though, an element of good faith must always be present, and this is where Poland has failed the Union … and is now failing us. Today we live in a state devoid of any checks and balances, where power is uncensored and can, and in fact does, do anything. The actions of the last 8 years to take over independent institutions are coming to a ghastly logical close at the worst possible time for both Europe and our civil rights and liberties. When laws and institutions begin to serve ruthless politics instead of civilizing and restraining it, one of the cornerstones of the post-war European order is destroyed: the belief that any political power must be a power limited and controlled by institutions independent of it, primarily the courts. Let us therefore be aware of what is at stake in the uncompromising political game. It is our continuance in the European community of law and values, whose rules and principles we voluntarily accepted in 2004 and which were the dream and aspiration of entire generations of Poles after 1945, or … a definitive POLEXIT.
So when I think of Poland in 2023 two days before the parliamentary elections, I return yet again to a poignant poem about the power of dissent and the courage to speak out in times of trial by K. Cavafy, Che Fecce … Il Gran Rifiutto:
“For some people the day comes when they have to declare the great Yes or the great No. It’s clear at once who has the Yes ready within him; and saying it, he goes from honor to honor, strong in his conviction. He who refuses does not repent. Asked again, he’d still say no. Yet that no – the right no – drags him down all his life”.
On 13 October 2023, I revisit Cavafy’s words and search for my own civic great “YES” and/or “NO”. Understanding the consequences of the devastating and hateful politics of resentment and exclusion that is pushing our country and us citizens into the abyss of POLEXIT must be the first and necessary civic step. Therefore, I make my own when I speak up to defend what I hold dear by shouting out: “This is My Poland in Europe and Europe in Poland”.
What and How will you choose on 15 October 2023?