Opinion & Analysis

The parliamentary politics of the EU’s rule of law crisis

Poland’s Law and Justice has had a turbulent relationship with Brussels since it entered government in 2015. Ahead of the next Polish parliamentary election on 15 October, Katarzyna Granat examines which national parties and political groups in the European Parliament have taken Law and Justice’s side in debates over the rule of law.

Poland will hold its next parliamentary election on 15 October. The incumbent Law and Justice (PiS) party is currently leading in the polls with a 33% vote share. While achieving an outright parliamentary majority may not be on the table for PiS, the party might still be able to form a coalition government and thus remain in power for another four years.

At the same time, Poland’s rule of law backsliding remains under close scrutiny by the European Union. In the bloc’s 2023 Rule of Law report, the European Commission expressed continued serious concerns about the independence of the Polish judiciary. These concerns relate to disciplinary procedures and forced transfers of judges, as well as to the functioning of Poland’s most important judicial bodies, such as the National Council for the Judiciary, the Supreme Court and the Constitutional Tribunal.

Poland and the rule of law crisis

Against this background, how do political factions in the European Parliament and political parties in Poland and the rest of the EU position themselves around Poland’s rule of law crisis? And what factors explain the positions adopted by these actors in the political arena?

In a new study, I seek to answer these questions. I find that two characteristics of political parties are helpful in explaining their responses: first, their party ideology, and second, their status in government or opposition.

We would expect that populist parties would be more likely to support a member state government backsliding on the rule of law than a mainstream party. Populist parties tend to oppose the key principles of liberal democracy and reject checks and balances on popular will. They may also be concerned that any measures taken against PiS might be used again them at a later stage.

On the second characteristic – government/opposition status – I reason that parties in government will be more likely to support PiS. National governments are generally hesitant to apply sanctions on another member state for rule of law violations, in part due to national sovereignty concerns and in part due to their negative effect on cooperative decision-making processes.

Testing the theory

To test these hypotheses, I study a set of parliamentary resolutions across the EU that targeted the rule of law violations by Law and Justice during its first term in government (2015-2019). First, three national parliaments adopted resolutions either condemning (French National Assembly) or supporting (Lithuanian Seimas and Hungarian National Assembly) the Law and Justice government in Poland. Two further resolutions in the German Bundestag drafted by the opposition, the Greens and the Free Democratic Party did not pass.

Second, the Polish parliament issued two resolutions in 2016 and 2018 that are relevant to the rule of law crisis. Finally, the European Parliament adopted four resolutions (B8–0461/2016, B8–0977/2016, B8– 0595/2017 and B8–0119/2018) critical of the situation in Poland, while a draft resolution expressing the Parliament’s support for Poland, put forward by the ENF group, ultimately failed.

Analysing the votes as well as other political actions around these resolutions, I find that, consistent with the prediction above, all populist parties in national parliaments under scrutiny positioned themselves in support of PiS. The support was expressed by populist parties on both sides of the aisle, leaving the government/opposition divide little scope to explain the voting behaviour.

In contrast to populist parties, national mainstream parties’ support for PiS was not unequivocal. On the one hand, some mainstream parties backed PiS by sponsoring resolutions openly supporting it or by sinking the resolutions critical of Poland. On the other hand, several mainstream parties withheld their support. While on balance the populist character of a party helps to predict the party’s behaviour, its explanatory power is weaker for mainstream parties. In turn, the government/opposition divide is helpful in explaining positions among mainstream parties. Most mainstream parties in opposition did not support PiS. For the government parties, as expected, more of them supported PiS than did not.

Explaining support for Law and Justice

In sum, in the case of national political parties, both factors – populist ideology and government/opposition status – help explain positions adopted towards a member state violating the rule of law. In cases where these predictions do not go in the same direction, such as for a populist party in opposition, the populist ideology tends to trump government/opposition status. In other words, a populist party in opposition would likely back PiS. The government position becomes relevant for predicting party behaviour only with regard to mainstream parties.

With respect to the European Parliament, as expected, MEPs from populist radical right parties – in the ECR, EFDD and ENF groups – tend to vote in support of PiS, thereby showcasing high programmatic coherence on the rule of law crisis. Among the populists only the left-wing GUE/NGL group joined ranks with the mainstream parties, which tended to vote in support of resolutions criticising PiS. While there is no formal government/opposition division in the European Parliament, numerous MEPs of the EPP – the faction affiliated with many national governments and thus an important power in the Council – voted against the resolutions and thus in support of the Polish government.

Ultimately, my research shows that populist parties, in particular right-wing populist parties, are more likely to support the Law and Justice government than non-populist parties. Moreover, government parties on balance are less likely to challenge Law and Justice than parties in opposition. However, some differences in voting behaviour between the Polish parliament, the other national parties and the European Parliament remain in place.

About the author

Katarzyna Granat is a Visiting Fellow at Durham Law School. She holds a Master’s degree from the University of Warsaw and an LLM and PhD degree from the European University Institute.