How will Poland’s “rule of law” dispute with the EU political establishment develop?

By Aleks Szczerbiak

The imperative to maintain European unity in the face of Russian aggression has put the EU political establishment under pressure to de-escalate its “rule of law” conflict with Poland’s right-wing ruling party, which is prepared to compromise as long as it does not have to abandon the core of its judicial reform programme.

But the vagueness of the European Commission’s reconstruction plan “milestones”, and the fact that payments will only be released in tranches, mean that it can still use the coronavirus recovery fund as a conditionality tool.

An ongoing dispute

Last month, after a year of deadlock, the Polish government, led since autumn 2015 by the right-wing Law and Justice (PiS) party, finally reached an agreement with the European Commission over Poland’s EU coronavirus recovery fund national reconstruction plan (KPO).

This paves the way for the conditional release of the €34.5 billion in grants and loans that have been allocated to the country as part of the fund. The monies had been withheld due to a long-running row between Warsaw and the EU political establishment over “rule of law” issues, particularly PiS’s fiercely contested judicial reforms.

The EU institutions have agreed with Poland’s legal establishment and most opposition parties that these reforms undermine judicial independence and threaten the key democratic principle of the constitutional separation of powers.

PiS, on the other hand, argues that, following Poland’s flawed transition to democracy in 1989, the judiciary, like many key institutions, was expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite.

It accuses the EU political establishment of bias and double standards, and of using the rule of law issue as a pretext to victimise PiS because the party rejects the EU’s liberal-left consensus on moral-cultural issues which it feels undermines Poland’s traditional values and national identity.

In 2017, the commission took the unprecedented step of initiating action against Poland under Article 7 of the European treaties, which can be invoked against any EU member state when it is feels there is a “systemic threat” to democracy and the rule of law, threatening Warsaw with sanctions including the suspension of its European Council voting rights.

However, it was unable to secure the qualified majority required among EU states to move beyond the initial stage of the procedure. The commission, therefore, initiated legal “infringement procedures” against Poland, as a consequence of which the EU Court of Justice issued a series of judgements ordering the Polish government to reverse aspects of its reforms.

These included a July 2021 ruling calling for the suspension of a newly created supreme court disciplinary chamber for judges that, the court argued, was incompatible with EU law because it threatened judicial independence. While PiS indicated that it planned to disband the chamber – which, it said, had anyway not fulfilled its objectives – this commitment was too vague for the commission.

Brussels, therefore, delayed approval of Poland’s national recovery plan until it complied with the ruling of the EU court, which, at the commission’s request, also ordered Poland to pay €1 million per day fines for non-compliance. The disciplinary chamber’s fate thus became central to the dispute between PiS and the EU political establishment.

De-escalating the conflict

However, the rule of law issue has become an awkward one for the EU given Poland’s centrality to the West’s response to Russia’s invasion of Ukraine.

Poland’s critical geographical location, together with the fact that it is NATO’s largest member and top defence spender in the region, mean that it has become pivotal to the alliance’s security relationship with Moscow.

The country has been one of the main hubs for channelling military and humanitarian aid to Ukraine, and the primary destination for refugees fleeing from the conflict.

At the same time, Poland’s credibility and international standing were enhanced by the fact that it proved more perceptive than the main EU powers in correctly warning about Russian President Vladimir Putin’s expansionist designs on the region.

As a consequence, in order to maintain European unity and solidarity in the face of Russian aggression, the EU political establishment came under pressure to de-escalate the conflict with Poland and accept its national reconstruction plan.

However, in doing so the commission also set out “milestones” that had to be fulfilled for the conditional release of coronavirus recovery fund payments. These included: the dismantling of the supreme court disciplinary chamber, the creation of a new (and apparently more impartial) disciplinary system for judges, and a review of the cases of those judges previously sanctioned by the chamber.

Last month, the Polish parliament approved a law proposed by PiS-backed President Andrzej Duda aimed specifically at trying to meet the EU court and commission’s central concerns.

The law replaces the disciplinary chamber with a new body, the professional responsibility chamber, appointed in a two-stage procedure: initially, 33 candidates are drawn by lot from among the 90 Supreme Court judges, and the final eleven are then selected by the president. The legislation envisages a swift review by the new body of all the disciplinary chamber’s earlier cases where judges have been disciplined or had their immunity lifted.

Ignoring the key issue?

The commission’s decision to approve Poland’s national reconstruction plan was strongly criticised by both the European Parliament and many anti-PiS legal experts and commentators.

They saw it as a short-term political deal and warned that the law was not sincere and simply replaced the disciplinary chamber with a similar body but with a different name and chosen by the government-allied president, while suspended judges would not necessarily be reinstated, simply have their cases reviewed.

They accused the commission of abandoning the most effective instrument that it had for exerting pressure on PiS, arguing that the milestones were too vague and open to political interpretation.

For its part, the commission stressed that Poland will not receive the first actual coronavirus fund payments until the end of 2022 or early 2023, so it will have the opportunity to assess whether the necessary reforms really have been undertaken.

If it does not believe that sufficient progress has been made, the commission can recommend freezing the payments. For PiS, this could mean high-profile conflicts with the EU political establishment in the run-up to the next parliamentary election, scheduled for autumn 2023.

A foretaste of this came at the beginning of this month when commission president Ursula von der Leyen stated that, in her view, the Supreme Court amendment law did not ensure sufficiently that Polish judges were able to question another judge’s status or decisions without risking being subject to a disciplinary offence.

Nonetheless, many of PiS’s critics also believe that the commission’s milestones ignore the core issue at the heart of the judicial reforms: the status of the National Council of the Judiciary (KRS), a key body that oversees the appointment and supervision of judges in Poland.

The council was re-constituted by PiS so that elected politicians rather than the legal profession now have the decisive influence in determining its composition. The government’s critics argue that, by ignoring this issue, the commission has not gone far enough in restoring the rule of law and protecting the judiciary from political interference.

PiS, on the other hand, argues that giving elected politicians a greater say in the appointment of supervisory bodies such as the KRS is essential because the Polish judicial elite has operated as a “state within a state” incapable of reforming itself. So making judges and their supervisory organs more accountable to elected bodies is both justified and in line with practices in other established Western democracies.

Too many concessions to Brussels?

PiS has also been keen to end the deadlock on this issue because it urgently needs the coronavirus fund money, not least to improve its chances of re-election in the next year’s parliamentary poll.

The government feels that a swift, large-scale inflow of euros would not only help to finance an investment boost, but also contribute to strengthening the Polish zloty and thus lower the price of imported goods, thereby helping to reduce the rate of inflation which last month hit a quarter-century high of 15.6%.

PiS also made maintaining Poland’s high level of fiscal transfers one of its main EU policy goals, and ran a very high-profile advertising campaign promoting the fact that it had secured them as part of the EU’s 2021-27 budget round.

At the same time, while PiS remains committed to a wide-ranging judicial overhaul as a key element of its radical state reform programme, the governing camp is divided over how far to concede to the EU political establishment and whether to push ahead with and deepen the reforms.

The ruling party is under particular pressure from United Poland (Solidarna Polska), PiS’s junior governing partner led by justice minister Zbigniew Ziobro, on whose 20 MPs it relies for its parliamentary majority.

Ziobro, who has introduced many of the government’s most controversial policies, including the judicial reforms, has been staking out a series of hard-line right-wing conservative policy positions and criticising the government for being excessively compromising and ideologically timid.

Specifically, United Poland accuses Prime Minister Mateusz Morawiecki of making too many concessions to the EU institutions, which it argues are engaged in a “hybrid war” against Poland, and it took PiS several months to persuade Ziobro and his allies to finally accept Duda’s Supreme Court amendment law.

Indeed, Ziobro is planning further judicial reforms, including a proposal to streamline the Polish court system, which the government’s critics argue would facilitate a further turnover of judges.

An uneasy and unstable truce

The “rule of law” dispute, therefore, appears to have reached an uneasy, and somewhat unstable, truce. On the Polish side, notwithstanding Ziobro’s plans, the PiS leadership seems to want to let the issue rest rather than pushing ahead with new judicial reform initiatives, at least until after next year’s parliamentary election.

The ruling party is clearly prepared to compromise with Brussels as long as this does not involve abandoning the core principle at the heart of its judicial reform programme: that elected politicians be given a greater say in determining the composition of the key bodies that oversee the Polish courts.

For the moment at least, the EU political establishment does not appear to be making scrapping the re-constituted KRS one of its explicit milestones for un-locking coronavirus funding.

This will slowly but surely change the nature and composition of Poland’s legal elites, and could cause a major headache for any future government comprising the current opposition parties as to what to do with the thousands of “new” judges appointed by the reconstituted council, and what the legal status of their countless court rulings will be.

However, there are still question marks over whether the Supreme Court amendment law will fully satisfy the European Commission, and whether it will use the fact that recovery fund payments are only to be released in tranches as a means of exerting further pressure on PiS.

The commission’s milestones are formulated in such a way that provide it with a great deal of room for manoeuvre to interpret whether or not they have been implemented. As von der Leyen’s recent evaluation of Duda’s law shows, the commission also appears prepared to defend Polish judges who question the status and rulings of their “new” colleagues appointed by the re-constituted national judicial council.

Even if the commission does not itself directly challenge the legitimacy of this body, this still could cause major problems for PiS – and, indeed, for the overall coherence of the Polish justice system.

Main image credit: Mateusz Kostrzewa / KPRM (under public domain)

Aleks Szczerbiak is Professor of Politics & Contemporary European Studies at the University of Sussex. The original version of this article appeared here.