ROUND 2 – ‘THE NUCLEAR ROUND’
In january of 2016 the European Commission decided to start investigating the new judicial reforms in Poland (Rankin, 2016). This inquiry was the crucial event that marked the beginning of ‘the Nuclear Round’. The European Commission (EC) decided to get involved in the process, which showed new actors participating in the round. It also changed the course of interaction between Poland and the outside world. The inquiry was a response to the new judicial legislation, which allowed parliament to appoint and remove Constitutional Court judges (Reuters, 2018). This course of action endangered trias politica, seperation of power. The judicial system lost its independence due to these reforms and concerned the EC (European Commission, 2017). The Commission’s first plan of action started in January of 2016, when they started an inquiry into the Rule of Law (Rankin, 2016). This was part of the collaborative negotiations with Poland (Klijn ; Koppenjan, 2016). They wanted to ensure peaceful proceedings, however, Poland’s ruling party stagnated this process. Jaroslaw Kaczynski who led PiS in 2016, taunted the EC calling the inquiry ‘an absolute comedy’ (Sobczak & Pawlak, 2016). The PiS speeded up the judicial reform to ensure blockage of external interference (BBC, 2016). In July 2017 the European Commission initiated the infringement procedure (Wlodarczak-Semczuk, 2018). The infringement procedure warns a country that they have violated European law and that they are expected, within a specific period of time, to reverse these judicial reforms. If these requirements are not met, there will be repercussions (Civic Space Watch, 2018). However, the PiS & Duda did not respond to the warning of the and continued reformations breaching EU law. Again showing their unwillingness to cooperate. December 2017 is known as a turning point for the Polish Judicial case, due to its controversy. Polish president Duda approved a legislation overhauling the Supreme Court (Wlodarczak-Semczuk, 2018). This is when EC’s strategy partly changed from a collaborative to a conflictual strategy to ensure the actions and interests of the PiS would be blocked (European Commission, 2018). The EC decided to advice the implementation of Article 7 that same day. Which never before been advised to a EU member state. Activation of Article 7 ‘the nuclear option’ means that Poland’s voting rights will be inactivated (Agence France Presse, 2017). In order for the initiation of Article 7 all EU member states need to be in favour: a collaborative strategy (Ellis & Scheltens, 2018). However, Hungary has promised to veto any punishment directed at Poland, as a result of their similar views (Rettman, 2018). Hungary activated a conflictual strategy due to blocking the activation of the ‘nuclear option’, therefore blocking the solution favoured by other actors (Klijn & Koppenjan, 2016). Hungary’s veto ends the second round due to its position as a critical event. It started a change in which actors were involved, e.g. Hungary itself had not been critical in the process until their vetoing power. The content also changed because the EC needed another approach to solve the complex case (Klijn ; Koppenjan, 2016). This event marked the end of the Nuclear Round.
Substantive complexity is caused by differences in problem- and solution perceptions (Klijn ; Koppenjan, 2016) both clearly evident in the Nuclear Round. There are significant differences in the problem perception between two of the main actors: the European Commission (EC) and the Law and Justice party (PiS; including president Andrzej Duda), as can be seen in the table (Broniatowski, 2017; Kalan, 2018). The PiS is of the opinion that the problem is elite post-communist groups influencing the Supreme Court. In their eyes they have to save the people from this corrupt group by reforming the judiciary system (Kalan, 2018). Their problem within the second round is the involvement of the EC in their country. They argue that the EC has no right to interfere in the action of a nation (Shotter, Huber, Khan, 2018). Whereas, the Commission has an entirely different perception. They argue that the root of the problem lies with the undemocratic judicial reforms signed by president Duda. Reforms that result in the endangerment of Rule of Law and European Law (European Commission, 2017). Difference in solution perception can also be observed within this round: the EC issued activation of Article 7 to force the Polish government to reverse the reformation (EEPA, 2013). Not a viable solution according to the PiS, instead they opted for a continued path of judicial reforms and ignoring all attempts at communication from the EC. An actor that showed unexpected behaviour was president Andrzej Duda, generally opposed to the EC, who refused to sign bills opted by the PiS (BBC, 2017). Showing another alienation between various actors. These perceptions are hard to change because they are embedded within their organizations and backgrounds (Klijn ; Koppenjan, 2016). They have no shared history nor deep connected values. Leading to difficulty in working together and therefore an increase in substantive complexity.
MANAGING SUBSTANTIVE COMPLEXITY
It was previously mentioned that the views of the involved critical actors are so alienated that high substantive complexity occurs (Klijn ; Koppenjan, 2016). Success of network governance and managing this complexity revolves around joint image building and goal intertwinement. Joint image building is fulfilled when actors inquire more knowledge with interaction and research on the problem and accompanying solutions (Klijn ; Koppenjan, 2016). The EC has tried to gain knowledge on the problem and PiS’ views. They did an inquiry in Poland and attempted forms of communication; an effective way of managing complexity (Wlodarczak-Semczuk, 2018). However, no response came from Poland’s political leaders. Willingness of PIS to correspond with the EC would have made both actors more open towards a cooperation. In addition, if PiS gathered more data on problem perception of the Commission it would help them understand their opponents and enhance management of complexity (Klijn ; Koppenjan, 2016).
Achieving a form of agreement with different actors improves success of network governance. This is already accomplished between Hungary and Poland, however the Commission and PiS have not come to an agreement(Rettman, 2018). These two actors are involved in a dialogue of the deaf: both actors are trying to outmanoeuvre and convince the other of their right. All doing so without listening to their opponent (Farlex Dictionary of Idioms, 2015). Resolving this dialogue is achieved by looking for similarities between perceptions and by acquiring data. Goal intertwinement will be enhanced: win-win solutions created to ensure a beneficial outcome for those involved (Klijn ; Koppenjan, 2016). However, this criterion is hard to meet because the goals of PiS and EC seem profoundly different. Despite these differences they do not contradict one another. Realizing this would help the process move towards a productive collaboration and therefore successful network governance.
The type of strategy chosen by the actors who are involved influences the quality of the process (Klijn ; Koppenjan, 2016). The PiS decided upon a go-alone strategy mixed with a conflictual approach in regard to the EC. Having no regard for dependencies of other actors and solely focusing on blocking goals of other parties and preserving their own. Their focus lies on creating breakthroughs for themselves: bills reforming Supreme Court (Sobczak ; Pawlak, 2016).
Despite the go-alone strategy performed with the EC, the PiS has chosen a cooperative strategy with Hungary’s government and Duda. To no one’s surprise since the Law and Justice party backed Andrezj Duda as a presidential candidate during the 2015 elections of Poland and the similar views of Hungary on independence from the EU (The Guardian, 2015). The Commission took on a cooperative strategy at the beginning but switched towards a conflictual strategy when they realized collaboration with PiS could not be realized. Their new approach revolved around blocking any further reformations and reversing the newly signed bills (European Commission, 2018). A strategy switch was also performed by president Duda, who started with a collaborative strategy with the ruling party but who has recently vetoed two bills supported by the PiS. Evidently showing a blockage within the judicial reform process. Simularily Hungary has played a big role in blocking a solution from the EC by vetoing Article 7 (Rettman, 2018). This ignorance of interdependencies causes complexity because choices made by one actor affects the choices of others.
MANAGING STRATEGIC COMPLEXITY
Success in managing strategic complexity is partly achieved when actors move from a go-alone strategy towards a collaborative strategy (Klijn ; Koppenjan, 2016). If the PiS had chosen a collaborative strategy in regard to the Commission the situation most likely would not have escalated to the point of advising Article 7.
Decreasing complexity can be found in, for example, a mediator. An objective person or organization that is approved by all parties involved and can guide the process towards a solution, beneficial for all actors. Decreasing opportunistic behaviour would be beneficial for successful network management: PiS communicating with other actors who might not directly agree with them (Klijn ; Koppenjan, 2016). Talking to the EC about how to prevent endangerment in Rule of Law yet still reforming the judicial system. Trying to find a consensus instead of ignoring attempts at agreement, which would result in possible win-win solutions.
Round two clearly shows what happens when criteria that manages complexity in governance is not met: failure of the network process. One of the main reasons of this failure is absence of goal intertwinement (Klijn ; Koppenjan, 2016; Rettman, 2018). The PiS were unable to find common ground on goal and solution perceptions. There were communication attempts from the EC but those were ignored by PiS (Wlodarczak-Semczuk, 2018) . Lack of communication caused go-alone and conflictual strategies and resulted in failure of working together and finding joined solutions. It prohibited cooperation with critical actors and does not address interdependencies. Recognition of interdependencies, benefits to a collaboration, and enhanced communication will combine perceptions and enhance understanding of one another (Klijn ; Koppenjan, 2016). Which will ultimately result in decreased complexity within governance and thus increase the chance of a successful network governance.