Mateusz Morawiecki wants both to honor Poland's old traditions and negotiate a future with EU partners who have their own agendas. Photo via http://www.gov.pl.

Warsaw and Brussels offer each other carrot bits while dodging sharp mutual sticks.

Opposition claims that Poland’s ruling party is paving the way for the country’s withdrawal from the European Union are unlikely to make much political headway beyond hard-core government opponents, but the possible delay or loss of EU funds could be much more damaging. The government probably will secure a short-term deal leading to the release of these funds, but ongoing tensions with the EU political establishment are likely to continue. And that will raise difficult questions about the country’s future relationship with the union.

The ‘Rule of Law’ Dispute Rolls On

The Polish government has been in a dispute with the EU since the right-wing Law and Justice (PiS) party was elected to office in autumn 2015. Initially, this was over the membership and functioning of Poland’s constitutional tribunal, a powerful body that rules on the constitutionality of Polish laws, but escalated in 2017 to include Law and Justice’s fiercely contested judicial reform program. The EU agreed with the criticisms leveled by Poland’s legal establishment and most opposition parties that the reforms undermined judicial independence and threatened the key democratic principle of the constitutional separation of powers. Government opponents argued that by putting judicial appointments under political control, these reforms allowed the ruling party to pack the courts and supervisory bodies with its own, hand-picked nominees.

Law and Justice argued that following Poland’s flawed transition to democracy in 1989, the judiciary, like many key Polish institutions, was expropriated by and represented the interests of an entrenched and often deeply corrupt, post-Communist elite, which then co-opted a new legal establishment that perpetuated its legacy. The judicial elite, they said, operated as a “state within a state” incapable of reforming itself; therefore, making judges and their supervisory organs more accountable to elected bodies was both justifiable and in line with practices in established Western democracies.

The European Commission took the unprecedented step of initiating an action against Poland under Article 7 of the European treaties, which can be invoked against any EU member state when it is felt there is a “systemic threat” to democracy and the rule of law. This laid Warsaw open to the threat of sanctions, including the suspension of its European Council voting rights. The commission was unable to secure the qualified majority required among EU states to move beyond the initial stage of the procedure. It then initiated infringement procedures against Poland in the EU Court of Justice, and some Polish judges submitted “pre-judicial [preliminary] questions” regarding various aspects of the reforms. 

In response, the court issued a series of judgments that ordered the Polish government to reverse aspects of its reforms. These included a July ruling calling for the suspension of a newly created disciplinary chamber of the Polish Supreme Court, the country’s topmost appeals court. The court ruled that the chamber was incompatible with EU law because it threatened judicial independence. The chamber’s activities were partially frozen in August. Law and Justice indicated that it would be disbanded as it had not, in any case, fulfilled its objectives. This commitment was too vague for the commission and, at its request, last month the EU court ordered Poland to pay daily fines of 1 million euros for non-compliance with the July ruling. The commission also delayed approval of Poland’s draft national recovery plan – without which it cannot access the 57 billion euros it is due from the EU’s coronavirus recovery fund – until it complies with the July court ruling.

Beyond that, the commission also could trigger a new conditionality law agreed to by the EU last year that allows it to withhold payments from both the coronavirus fund and the EU’s regular 2021-2027 budget – from which Poland is set to be one of the largest beneficiaries – if perceived rule of law breaches can be shown to have directly endangered the proper use of these funds. The new law’s implementation has been delayed pending a challenge in the EU Court of Justice by Poland (and Hungary). A preliminary ruling is expected in December or early next year.

The Specter of Polexit

In October, the conflict between Warsaw and the EU political establishment escalated following a ruling by Poland’s constitutional tribunal in response to a motion filed in March by Prime Minister Mateusz Morawiecki questioning whether the EU court had the right to block Warsaw’s judicial reforms. The tribunal ruled that some provisions of the main EU treaty had been interpreted or applied by EU bodies in a way that expanded their legal competencies beyond those transferred to it by Poland, and that EU law cannot prevail over the Polish Constitution. The ruling triggered harsh criticisms from the EC, which argued that – by directly challenging the primacy of EU law over national law, and the concomitant notion that all EU Court of Justice rulings are binding on member states – it undermined one of the founding principles of the union’s legal order.

The Polish opposition, headed by the liberal-centrist Civic Platform (PO), Poland’s governing party from 2007 to 2015, accused Law and Justice of engineering the ruling from a compliant tribunal which, given that it was such an apparently open breach of EU rules, raised questions about whether Poland might actually make a “Polexit” from the EU. They cited statements by some Law and Justice leaders who had openly suggested that Poland should consider alternatives to EU membership, and even compared EU institutions to the country’s German wartime and Soviet occupations. Given that the vast majority of Poles appear to support EU membership – an October 2021 survey conducted by the CBOS polling agency, for example, found 90% in favor and only 6% against – Polexit is a toxic slogan for any mainstream Polish politician associated with it.

Not surprisingly, Law and Justice bent over backwards to stress that it remained strongly committed to Polish EU membership. Indeed, although it often has been labeled as euroskeptic, the dominant view within the party still is that it can achieve its objectives by pursuing a “twin-track” approach to its relations with the EU. 

Law and Justice recognizes that the EU political establishment has a different interpretation of how its judicial reforms impact the rule of law. At the same time, it has tried to present Poland as a positive and constructive EU member, and decouple the dispute over rule-of-law compliance from attempts to develop closer economic ties and pragmatic day-to-day working relations with the EC and major European powers.

More broadly, Law and Justice wants a fundamental reform of the European project to bring back the EU to what the party sees as its original role: a looser alliance of economically cooperating sovereign member states with a more consensual decision-making process. The party says it fully respects the primacy of EU laws over national ones but only where this jurisdiction has been explicitly granted to the EU in the treaties. The functioning of national judicial systems, Law and Justice argues, is an area that remains solely within the competence of member states. It also points out that other European constitutional courts, notably Germany’s, have challenged the supremacy of EU law. Government critics argue that these rulings were fundamentally different from the Polish one.

The Political Costs of Losing EU Funds

The opposition argues that even if Law and Justice says it has no plans to lead Poland out of the EU, it could set in train a dynamic that eventually leads to Polexit, much as David Cameron’s attempts to renegotiate the UK’s relationship with the EU when he was British prime minister culminated in Brexit. In fact, an October survey conducted by the IBRiS agency for the Rzeczpospolita newspaper found Poles to be evenly divided on whether the tribunal ruling was a precursor to Polexit: 43% of respondents agreed, 45% disagreed. The same survey also found that 80% of supporters of Civic Platform agreed with this proposition, compared to only 12% of Law and Justice voters. This suggested that the Polexit narrative was more likely to consolidate the opposition’s electoral base than cut through to and win over wavering pro-EU Law and Justice supporters.

Potentially much more serious for Law and Justice would be a further delay in the approval, or possibly even loss, of EU funds. Polish support for EU membership is now driven increasingly by the tangible material benefits that the EU is felt to deliver. Among these are the sizable fiscal transfers that Poland receives, particularly the EU regional aid of which Warsaw is the largest beneficiary. A September IBRiS survey for Rzeczpospolita found that 68% of respondents cited fiscal transfers as the main benefit of Poland’s EU membership. Some in the governing camp have started to argue that the delay in coronavirus recovery fund payments is not a problem, as Poland’s strong economic position means similar investment funding could be obtained from private financial markets at equally attractive lending rates. However, the party made maintaining Poland’s high level of fiscal transfers one of its main EU policy goals and ran a high-profile advertising campaign promoting the fact that it secured them as part of the 2021-27 budget round. This makes it difficult for Law and Justice to now claim the country does not really need the funds.

So how is this issue likely to play out? Law and Justice remains committed to deepening and pushing forward with its judicial reforms as a key element of its radical state reform program. If the EC continues to try to cut off Warsaw from EU funds, the Polish government could retaliate by itself blocking areas of EU decision-making that require unanimity. However, Law and Justice apparently is keen to reach a compromise with Brussels as long as that does not involve abandoning the core principle at the heart of its judicial reforms: that elected politicians be given a greater say in determining the composition of the key bodies overseeing Polish courts. At the same time, the commission and major EU powers appear to want to de-escalate the conflict by agreeing to “milestones” with Poland that would enable pay-outs of EU funds. A short-term compromise, some Polish and international media have reported, would involve the commission ignoring the constitutional tribunal ruling and approving the country’s recovery plan as long as Warsaw shows in detail how it will abide by the EU court’s rulings and dismantle the contested disciplinary chamber. Law and Justice might agree to this as part of a broader judicial overhaul designed to radically reduce the supreme court’s size and competencies.

Can PiS Sustain Its EU Strategy?

If such a compromise were reached, the opposition’s Polexit narrative could quickly run out of steam. However, below the radar a debate slowly is emerging about Poland’s future EU membership among right-wing commentators and within the ruling camp, particularly politicians linked to Law and Justice’s smaller governing partner, led by Justice Minister Zbigniew Ziobro, Solidarna Polska (variously translated as “United Poland, “Solidary Poland,” or “Solidaristic Poland”). Some Polish conservatives argue that the cultural liberal-left consensus is so powerfully entrenched within the EU political establishment that it will continue to weaponize issues such as rule of law compliance and use the union’s legal framework to marginalize and undermine traditionalist right-wing groupings like Law and Justice. 

The linkage of EU funds to rule-of-law conditionality represents a major challenge to the sustainability of Law and Justice’s twin-track strategy. Whatever compromises the party may be able to secure in the short term, critics say, these ongoing tensions mean it will sooner or later have to face some fundamental questions about whether this strategy is sustainable in the longer term. This is particularly the case if the cost-benefit analysis of the tangible material benefits the EU was felt to deliver were to shift in Poland’s disfavor – for example, at the point at which it becomes a net contributor to the EU budget.

Aleks Szczerbiak is a professor of politics and contemporary European studies at the University of Sussex. He can be followed on Twitter at @AleksSzczerbiak. Reprinted with permission from his Polish Politics Blog and edited for context.