Poland’s Frozen Conflict over Rule of Law
PiS leader Jarosław Kaczyński believes that the process of democratic transition was incomplete: too much money, influence, and power remained in the hands of the ancien regime, poisoning the foundations of the Third Polish Republic. For Poland to flourish, it needed to reform, among other things, the civil service, the security-defense establishment, the media, and its judiciary—which is, according to PiS, controlled by the former communists, their families, acolytes, and their students. For real reform and change, the legal system needed to be destroyed and rebuilt from scratch. This plan played well with the public, who generally distrust the legal professions and were frustrated with the speed and efficiency of a legal system unwilling to self-reform. Hawkish junior PiS coalition partner Zbigniew Ziobro was entrusted with the task of breaking the system and introducing a new order intended to be a cornerstone of the new Poland. In the process, Ziobro wanted to replace the legal elites with new nominees grateful for the career boost and loyal to the powers that be.
The first act of the battle over rule of law was in 2015. PiS blocked the nomination of five new Constitutional Tribunal (CT) judges voted into office amid controversies caused by the outgoing Civic Platform majority’s last-ditch attempt to retain control of the institution. Since then, the tribunal has been politically subjugated by PiS and staffed with nominees who have strong ties to the Law and Justice party. The fight over CT control was long, the ruling majority’s actions were strongly criticized by the international community. The first steps taken by the European Commission were not very decisive: though it initiated dialogue with Poland’s government, not much happened due to lack of political will on the Polish side.
The second act came when Minister of Justice Ziobro tabled a three-bill package reforming the judiciary, which was hastily passed by the parliament in the summer of 2017. This sparked a wave of mass protests and ended in a presidential veto of two of the three bills. In the end, the president proposed new laws, which passed with far-reaching PiS amendments. The new bills introduced, among other things, the Disciplinary Chamber, meant to keep the judges in check and allow the new powers ruling the judiciary to keep a firm grasp over the system. All this caused a landslide of proceedings before the Court of Justice of the European Union and other international institutions.
At the end of 2017, Article 7 was initiated against Poland. The mechanism enshrined in the Treaty on the European Union, never triggered before, was considered a nuclear option at the time. But due to the need for member-state unanimity, the procedure went nowhere. The EU changed tactics—when the European Council passed the Multiannual Financial Framework in 2020, it introduced a conditionality mechanism that allows the EU to withhold payments from its budget in order to discipline a member state that breaches EU law. Furthermore, the Commission decided to block the down payment of Poland’s part of the Recovery Fund, which was intended to give an investment boost to member states after the coronavirus pandemic. Various rulings and penalties ensued, Poland did not want to comply and was unwilling to pay the fines. The commission, forced by lack of cooperation on the Polish side, started offsetting the fines from EU funds for Poland.
The chance for a reset between Warsaw and Brussels came when all eyes were watching the border between Russia and Ukraine and wondering if Putin would attack Ukraine
The chance for a reset between Warsaw and Brussels came when all eyes were watching the border between Russia and Ukraine and wondering if Putin would attack Ukraine. In December 2021, President Andrzej Duda vetoed a bill that was perceived by many as an attack on free media (and more precisely as an attack on the business interests of Discovery Inc. in Poland) and traveled to Brussels, where he met with European Commission President Ursula von der Leyen to try to smooth out the counterproductive rule-of-law quarrel.
Duda sponsored a fairly conciliatory bill regarding the Supreme Court that does not solve any problems but could allow for both sides to declare a truce: the EU would sign the Recovery Fund knowing that the conditionality mechanism gives it leverage in case of further infringements against the rule of law, and Poland could start spending EU funds and not be made to declare unconditional surrender. The sides negotiated an agreement which laid out the milestones to allow for the activation of tranches of EU funds, if Poland played by the rules of the agreement. A truce seemed imminent, but in early March, Warsaw decided to hit the brakes. There are three possible reasons why.
One reason is that, at the time, Ziobro was unwilling to sign off on the president’s bill. While some opposition partners are willing to help PiS vote it into law, they have several amendments to the bill, which could give the impression that PiS is backing down—in which case Ziobro has threatened to leave the coalition. On the other hand, any major changes to Duda’s bill (necessary for getting Ziobro on board and preserving PiS’s slim parliamentary majority) could cause another presidential veto and bring the issue back to square one.
A second reason: Warsaw started considering the possibility of a Marine Le Pen victory in the French election. While Le Pen is not PiS’s dream ally, the government believes that a change of power in France would make Poland’s rule-of-law problems factually disappear as Paris would take Warsaw’s side. To this end, PiS has invested political capital in building an alliance with Le Pen, the Prime Minister has attacked France’s President Emmanuel Macron for his weakness on Russia, and Warsaw is unwilling to make concessions on rule of law before the votes have been cast—even if today few people expect an upset.
The government believes that Warsaw has the moral upper hand over Germany and France (in a word: Brussels) because PiS has always been right about Russia—and Europe was very wrong.
Finally, psychology plays a role. Kaczyński believes Brussels has wronged Poland. The judiciary is the sole competence of a member state and the EU is breaching its own treaties. PiS repeatedly states that the EU treats Poland like a second-rate member state and uses the rule-of-law stick to weaken its standing (many solutions for which Warsaw has been criticized in the past are common in other member states). The government believes that Warsaw has the moral upper hand over Germany and France (in a word: Brussels) because PiS has always been right about Russia—and Europe was very wrong. Not only was Poland right, but today it bears the burden of the refugee situation caused by the war. As such, the EU has a moral obligation to disburse the funds, void Warsaw’s fines, and fund the government’s efforts in managing the refugee crisis.
What happens next? In the most likely baseline scenario, Warsaw will unsuccessfully try to force concessions from Brussels by playing the war card and highlighting the ongoing refugee crisis. France’s President Emmanuel Macron will be reelected. Sometime between the end of April and the beginning of May, Duda’s bill will be passed with some minor face-saving amendments that will enable Ziobro to vote in step with PiS (according to two sources, an agreement has been reached). Next, the Recovery Fund agreement will be signed (in late spring) and the money for investments will start flowing.
The problems with rule of law will be far from solved, but as long as Warsaw avoids causing any new problems, the truce will hold and the conflict will be frozen until the 2023 election. The commission will test its new conditionality mechanism on Hungary with Poland in sight. PiS will hope for a third term, which would offer the opportunity to restart negotiations with Brussels from a position of power. Brussels will wait for the election result, refraining for now from taking severe steps against Poland. If the opposition wins, the rule-of-law problems cease to exist for the EU. And Warsaw will have to clean up its own mess.
Andrzej Bobinski is the managing director of Polityka Insight.