The Polish government has a knack for stirring up international trouble – mostly for itself – in ways that continue to amaze observers.
Only last week, Poland’s ruling coalition United Right – which is led by the radical rightwing Law and Justice (PiS) party – basically told the US it was going to kick out an American company from one of the largest Polish media groups, TVN, which is one of its most prominent critics.
That same week, the coalition also set fire to relations with Israel by passing a law aimed at ending property reprivatisation scams but which, collaterally, will also make it tougher for heirs of Jews who perished in the Holocaust to successfully reclaim property.
All this comes on top of Warsaw’s longest spat – and potentially the most crippling one to the country – with the European Union over the rule of law.
Poland has therefore found itself at odds with the EU, of which it is a member, the US, which is the country’s top military ally, and Israel, with which Warsaw has a special relationship due to the country’s tragic experience in the second world war.
The rule of law spat goes right to the heart of the issue of what Poland’s future – if any – in the bloc will be. It also is surprising, as the PiS-led government has started it despite having one of the most pro-EU populations, and having mightily benefited from Brussels’ funding of roads, companies, culture centres and pretty much every bit of the country’s modern infrastructure.
Confronted with Poland’s aggressive tactics – such as blatantly ignoring the rulings of the EU’s top courts – Brussels now seems to have found a weapon that could rein in the populist PiS. It is threatening to cut the government off from EU funding at a time when the PiS now seems the most politically vulnerable in years.
Us v Them
In short, the issue at stake is simple, boiling down to who – Poland or the EU – has the final say in judicial matters.
By re-engineering the Polish judiciary so that, critics say, it is in control over the process of appointing judges, the government has breached the basic rules of judicial independence and impartiality. This is fundamental to the EU as it means that the applicability of EU rules throughout the continent is impaired because of potential political interference in Poland.
That process has been ongoing since 2015 when, just months after winning the election, PiS began to manipulate the line-up of the Constitutional Tribunal. It has now simply become the government’s legal arm, giving out – or delaying – rulings to suit whatever the political need is at the moment.
Other changes, which PiS likes to call “reforms”, followed: A new judge-appointing body, the National Council of the Judiciary (KRS) was set up, together with a new system for disciplining judges, including a new chamber of the Supreme Court, the so-called Disciplinary Chamber.
That led to the European Commission launching a number of probes into the so-called reforms, leading to lawsuits against Poland in the Court of Justice of the European Union (CJEU). The CJEU has now said in several orders and interim decisions that Poland must reverse or suspend the reforms.
That, in turn, led to Poland digging in by saying it is up to member states to introduce any changes in their national judiciary systems as they see fit. Poland has so far ignored the CJEU’s rulings, effectively upending the EU’s legal order.
Doubling down, the Constitutional Tribunal essentially ruled on July 14 that the CJEU has no authority over domestic regulations concerning the judiciary. That reignited concerns whether Poland was either planning a so-called “Polexit” or could somehow corner itself into leaving the EU.
“I would like to accept with satisfaction the ruling of the Constitutional Tribunal, which was based on the protection of the Polish legal order against unjustified interference by EU bodies. It is the Constitution of the Republic of Poland that is a legal act that stands above the law of the European Union,” Poland’s Justice Minister Zbigniew Ziobro said at the time.
Billions at stake
To the EU, Poland’s defiance is a problem. There is no legal way of kicking a country out of the bloc. PiS, while openly contesting the EU’s legal order, has never really hinted that such a course of action is possible.
The EU also has few workable tools to force Poland to comply. Brussels’ response has been limited to the time-consuming legal ordeal of asking for clarifications, seeking “reasoned opinions” from the CJEU, and, ultimately, referring the ignoring of these infringements to the CJEU – to which Poland, at least so far, tends to issue a quick “no” and try to move on.
Long before matters came to a head by Poland openly ignoring the CJEU (and also in a separate but related case, the European Court of Human Right as well), some member states had proposed that the disbursement of EU funds under the bloc’s new budget for 2021-2027 be linked with member states’ adherence to the rule of law principle.
As the coronavirus pandemic forced the EU to pour ever more money into the recession-hit continent – €58bn in grants and loans in Poland’s case – Brussels came under pressure from EU net contributors to condition this funding on member states meeting their accession treaty commitments.
That appears to have hit too close to home for the PiS government, which is struggling to move forward after the pandemic with a wide-ranging tax reform and spending plan known as the “Polish Deal,” of which money from the EU’s pandemic recovery fund is a key part.
PiS has also begun to struggle to maintain political dominance in Poland recently, so is in a weaker position. Accord, a small coalition partner in the government, was kicked out last week after its leader, Jaroslaw Gowin, criticised the Polish Deal as too burdensome for businesses. The so-called “TVN law” subsequently passed in the lower house only thanks to PiS managing to talk – or reportedly corrupt - some independents to back it. The opposition Civic Platform also appears reinvigorated by the return of former premier Donald Tusk.
Facing political turmoil at home, as well as international flak from the US and Israel, PiS appears to have chosen to play for time on the EU front.
In early August, Poland’s Prime Minister Mateusz Morawiecki said that Poland wants “some kind of accord” with the EU in the rule of law dispute. PiS’ chairman and Poland’s de facto top decision-maker, Jaroslaw Kaczynski, said meanwhile that the contested Disciplinary Chamber of the Supreme Court would be liquidated to “remove the object of the argument” with the EU.
But it is not clear whether these noises are just a tactical retreat by a government now fighting for its survival. Throughout the entire duration of the rule of law spat, Warsaw has repeatedly made changes to the disputed laws that did not address the crux of the issue: the judiciary’s independence and impartiality, and the primacy of EU law.
What the government may really think was, perhaps, best conveyed by the justice minister – and the main author of the judiciary reforms – Zbigniew Ziobro earlier this month.
"[Poland should be in the EU] only if our rights are respected. Not if we are treated as a colony ... We should strive to defend our position in the EU at all costs," Ziobro told the newspaper Rzeczpospolita.