Over the past two years the relationship between the Polish government under the lead of the conservative Law and Justice Party (PiS) and the European Commission has been tense. Growing economic fears and nationalistic sentiments were cleverly utilized by the government to gain popularity. The first clash with the EU thus arose from the system of relocation of refugees that Poland objects.

The situation deteriorated further around the changes the PiS made to the country’s constitutional court. Within and outside Poland this has been perceived as a threat to rule of law and an attack on the independent judiciary in the country. The Polish government refused to take reforms back and portrays EU commentary and actions as an attack on Polish values. The main narrative utilized is that of European bureaucrats dictating policies upon Member States. Poland claims to fear that the EU will undermine national sovereignty and decision-making power.

Białowieża Forest – contested ground

A third venue of conflict is the Białowieża Forest, the largest remnant of primeval forest that once covered Europe and is home to unique plant and animal life, a UNESCO World Heritage Site and a Special Conservation Area under the  EU’s Natura2000 Directives protecting threatened species and habitats. In 2016 the Polish government started logging activities in the forest, quoting a bark beetle infestation. However, this measure constitutes a severe breach of forest regulations and a menace to the forest ecosystem. Environmentalists suspect that the real motives of the Polish government were of political and economic nature.

The European Commission has called the Polish government to stop the logging activities in Białowieża Forest on 13 July 2017. Subsequently, the European Court of Justice (ECJ) issued an injunction requesting the immediate termination of all logging in the forest area. With little effect whatsoever. The Polish authorities refused to obey the court ruling and have continued logging activities, now claiming the bark beetle infestation was a “threat to public safety” which in certain instances justifies logging under EU law.

EU bodies do not agree with this interpretation, adding the Białowieża Forest case to the long list of infringement procedures against Poland. However, regarding the urgent matter of preserving the forest ecosystem, the European Commission has asked for the imposition of periodic penalty payments from Poland as an interim measure until the government obeys the injunction. This option has been on the table several times before, but never came to effect. The Polish Environment Minister has already argued in an additional hearing before the ECJ on 17 October 2017 that the Commission was “spreading lies” and “manipulating facts”. Now the case has been referred to the full plenary of ECJ judges, showing the importance of the matter, but also further protracting a decision.

The right opportunity to set a precedent

While the Białowieża Forest case may seem small compared to the other infringement cases against Poland, its importance cannot be dismissed. It is obvious that the Polish government is repeatedly probing the European Commission and testing the waters about how far it can go. Any ECJ ruling against Poland can and will send a strong signal that adhering to European values and regulations is not optional, but an essential part of membership.

Past infringement procedures against states nurturing nationalist sentiments have shown that conservative governments gladly refuse to adhere to infringement measures. The most obvious comparison being Hungary where the government has even run an open “Let’s stop Brussels!” campaign, portraying the EU as a threat to national sovereignty, that lacks understanding of local people’s needs and national values. An approach Poland follows as well. Both countries tend to downplay considerable advantages of EU-membership such as economic benefits and structural funds.

Where infringement procedures alone seem to be toothless, subjecting the Polish government to interim penalty payments could be an effective remedy. The ECJ can demonstrate that it is willing to step up measures against Member States, without triggering the measure of last resort: Article 7 under which Council voting rights and payments can be suspended. Penalty payments in two digits million amounts are high enough to show that contesting the EU actually has financial consequences and will force Poland to seriously consider their standpoint. The Białowieża Forest case is probably the least controversial infringement procedure and can therefore set an important precedent for the EU’s willingness to take action.

However, EU officials should not only speak through the ECJ. Understanding and addressing the concerns of the Polish, the Hungarian and other member states in the East should be a permanent priority. Re-enforcing the positive sides of the EU membership can restore and uphold the common vision of mutual support and mutual benefits that is the core of the European project. Combined with dialogue, the penalty payments can set the EU-Poland relationship back on the right track.