The Polish Politics Blog

Analysis of the contemporary Polish political scene

Is there any prospect of ‘Polexit’?

Its opponents accuse Poland’s right-wing government of undermining confidence in, and weakening the country’s ties with, the EU. The government’s supporters argue that the ruling party is committed to defending national interests and sovereignty within a reformed Union. Poles are still overwhelming pro-EU but this support is shallow and increasingly instrumental.

Conflicts with the EU establishment

On the face of it, Poles are overwhelmingly pro-EU. A June survey by the CBOS polling agency found that 88% of respondents supported their country’s EU membership compared with only 9% who were against. The right-wing Law and Justice (PiS) grouping, Poland’s ruling party since the October 2015 election, is committed to defending Polish interests and sovereignty robustly within the EU, especially in the moral-cultural sphere where it rejects what it sees as a hegemonic EU liberal-left consensus that it believes undermines the country’s traditional values and national identity. Law and Justice is also anti-federalist and has articulated an increasingly fundamental and principled critique of further European integration. Nonetheless, although it has been labelled Eurosceptic the dominant view within Law and Justice is still that it is in Poland’s interests to remain an EU member and reform the organisation from within. No major political grouping questions continued EU membership and the only calls for ‘Polexit’, following the UK’s example in leaving the Union, have come from fringe politicians on the radical right.

However, the Law and Justice government has found itself in conflict with the EU institutions and major European powers on several fronts. In January 2016, the European Commission initiated an unprecedented ‘Article 7’ investigation into Poland, a procedure which it can invoke against any EU member state where it feels there is a ‘systemic threat’ to democracy and the rule of law. This followed the outbreak of a bitter domestic political and legal dispute over the membership and competencies of Poland’s constitutional tribunal. The row escalated this July when the Commission asked the Polish government to justify a series of laws reforming the judiciary. Two of these were vetoed by Law and Justice-backed President Polish Andrzej Duda but the Commission nonetheless gave Poland a month to address its concerns or face the prospect of a recommendation to the European Council that sanctions be imposed which, in the worst-case scenario, could mean suspending Warsaw’s voting rights. Law and Justice rejected the Commission’s claims as biased and representing political interference in Polish domestic affairs. Unanimity is required in the Council to trigger sanctions and the Hungarian government, for one, has made it clear that it will oppose such moves. Consequently, in a separate action the Commission also launched an infringement procedure against Poland arguing that its judicial reforms breached EU law.

In June, the Commission initiated another EU law infringement action against Poland (together with the Czech Republic and Hungary) for its refusal to implement a plan agreed at a September 2015 EU summit on the compulsory relocation of Middle Eastern and North African migrants located in Greece and Italy. This proposal was accepted by Law and Justice’s predecessor, the centrist Civic Platform (PO) which was Poland’s ruling party between 2007-15 and is currently the main opposition grouping. Although Law and Justice was against the EU plan when in opposition, it initially agreed to implement it but then suspended the process arguing that procedures for vetting migrants were insufficient to guarantee Polish security. In July, the Polish government also refused to implement a European Court of Justice order to stop logging in the primeval Białowieża Forest, arguing that it was acting in line with the injunction because it was only removing trees affected by a plague of spruce bark beetles on public safety grounds.

Poland’s clashes with the EU institutions have been one of the factors contributing to a worsening of its already-strained bi-lateral relations with the main European powers. Last month, French President Emmanuel Macron accused the Polish government of isolating itself within the EU by undermining European solidarity and democratic values. Mr Macron’s remarks came as he omitted Poland (and Hungary) from a trip to central and Eastern Europe to mobilise support for new EU rules which would limit the rights of temporary (so-called ‘posted’) workers, which Warsaw says will hit Poles employed in Western Europe particularly hard. At the same time, German Chancellor Angela Merkel, who had previously kept a low profile in the ongoing row over the Article 7 procedure, also appeared to be moving closer towards supporting the Commission more openly on this issue.

Slow motion ‘Polexit’ or defending Polish interests?

The government’s opponents, Civic Platform and the smaller liberal ‘Modern’ (Nowoczesna) grouping, argue that Law and Justice has so marginalised Poland within the EU’s decision-making structures that the Union will be much less engaged in the country’s future development. They warn that Poland could end up on the EU’s periphery as the major European powers have signalled that they favour a ‘multi-speed’ Europe with the locus of decision-making and integration likely to develop even more around the Eurozone hard core. Although it has not ruled out Eurozone accession in principle, Law and Justice argues that, given the single currency’s huge problems, it cannot envisage any point in the foreseeable future when it would be advantageous for Poland to adopt the Euro. Drawing analogies with the process that led to the UK’s June 2016 Brexit referendum, the government’s critics argue that by mobilising Euroscepticism for short-term domestic political advantage and treating every action by EU institutions as a hostile one, Law and Justice could bring about a slow motion ‘Polexit’ by progressively undermining confidence in, and weakening Poland’s ties with, the Union.

The government’s supporters respond that Law and Justice remains strongly committed to Polish EU membership, an argument that most Poles appear to accept: a March-April CBOS survey found that only 17% of respondents thought that the government wanted ‘Polexit’. However, Law and Justice does want a fundamental re-think of the trajectory of the European project to bring the EU back to its original role as a looser alliance of economically co-operating sovereign nation-states with a more consensual decision making process. The government’s supporters argue that it has found itself in conflict with the EU establishment because it has been robust and assertive in defending and advancing Poland’s national interests within the Union. Law and Justice has shifted away from its Civic Platform-led predecessor’s strategy of trying to locate Poland within the so-called European ‘mainstream’ and prioritising the development of close relations with the main EU powers, especially Germany. Rather, the party argues that Poland needs to form its ‘own stream’ within the EU by, for example, building alternative alliances with central and East European post-communist states to counter-balance the influence of the Franco-German axis. They cite US President Donald Trump’s July visit to Poland, his first stop in Europe on only his second overseas trip since assuming office, as an implicit endorsement of Law and Justice’s new approach. As well as making a keynote speech praising Poland as a key American ally, Mr Trump addressed a Warsaw meeting of the so-called ‘Three Seas Initiative’, a Polish-led scheme to develop co-operation and solidarity among East European states.

EU support is shallow and increasingly instrumental

Moreover, Polish public support for the EU appears to be very broad but also rather shallow with many Poles critical of attempts to deepen European integration in a number of areas. For example, a March-April CBOS survey found that 72% of respondents were against Polish adoption of the Euro with only 22% in favour. The same survey found that 43% of Poles felt that defending the independence of member states should be given priority compared with 31% who favoured limiting national sovereignty to ensure the EU’s effectiveness.

Poles also appear to be increasingly instrumental in their approach towards EU membership. A key motivation for their voting overwhelmingly for Poland’s EU accession in a 2003 referendum was the idea it represented a historical and civilisational choice to re-unite with the West and the culmination of the post-communist democratisation process. One of the main reasons why levels of popular support for the country’s EU membership remained so high was that many Poles, especially among the older generations, saw the European integration process as part of a symbolic re-uniting of Poland with a Western international community of shared values that they had always considered themselves to be part of culturally and spiritually.

However, this idea of EU membership as a natural and obvious civilisational choice has come under strain in recent years due to an increasing sense of cultural distinctiveness that many Poles feel towards Western Europe. This is particularly evident in the sphere of moral-cultural values where Polish attachment to traditional morality and national identity stands in stark contrast to the socially liberal, cosmopolitan consensus that predominates among West European cultural and political elites. This issue surfaced in the contrasting reactions of Poles (and other Central Europeans) to the European migration crisis. A May 2017 CBOS survey found that 70% of Poles were against accepting refugees (never mind economic migrants!) from Muslim countries and only 25% in favour; with 65% still opposed even if Poland was threatened with financial penalties. Poland is an overwhelmingly Catholic country with very few ethnic minorities which has had little experience of the modern migrations that have transformed Western Europe. Poles are keen to avoid the kind of cultural and security problems that many of them feel West European countries have experienced through admitting large numbers of Muslim migrants who are seen as difficult to assimilate and embedding violent extremists within their communities.

Polish support for EU membership is, therefore, driven increasingly by the tangible material benefits that the Union is felt to deliver, but there are signs that these will be more limited in the future. Among these perceived benefits are the sizeable fiscal transfers that the country receives, particularly EU regional aid of which Poland is currently the largest beneficiary and many Polish commentators see as crucial to its economic modernisation. The current EU budget, which runs until 2020, was always likely to be the last from which Poland would benefit so substantially and Brexit will almost certainly limit the scale of these fiscal transfers even further in the future. Another main pillar of support for EU membership was the ability that it afforded Poles to travel to and work in Western Europe. However, concern about un-controlled mass EU migration was an important driver of support for Brexit and, as Mr Macron’s proposal to limit the rights of ‘delegated’ workers shows, there will almost certainly be more attempts to restrict Poles’ access to labour markets in other EU countries. Supporters of EU membership point to the importance of Polish access to the single market for trade and attracting inward investment but this argument may be too abstract for Poles to grasp. Moreover, while many feel that the country’s geo-political situation requires membership of Western international organisations, they may also conclude this is best secured through NATO rather than the EU which is not a credible military security actor.

Potential for Euroscepticism?

Although they are still overwhelmingly pro-EU many Poles, therefore, share Law and Justice’s concerns about the trajectory of the European project. Interestingly, a June poll conducted by the IBRiS agency for the ‘Polityka’ journal found that 51% of respondents actually supported leaving the EU if it was the only way to prevent Poland from being forced to admit Muslim migrants. A particularly ominous sign for Polish EU enthusiasts is that fact that the younger, post-accession generation of Poles are easily the most anti-EU demographic: a March-April CBOS survey found that 22% of 18-24 year-olds opposed EU membership compared with an average of 9% among all respondents. So while there is no imminent prospect of the government seeking, or the public supporting, ‘Polexit’ all of this creates the potential for an increase in Polish Euroscepticism in the future.

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How will President Duda’s judicial reform vetoes affect Polish politics?

Poland’s President shook up the political scene when he vetoed two of the right-wing government’s flagship judicial reform bills, which had triggered one of the country’s sharpest political conflicts in recent years. By carving out an alternative power centre within the governing camp it gives him an opportunity to re-define his presidency, but having taken ownership of the issue he is now under intense pressure to deliver on judicial reform.

Judicial reform is a government priority

Poland’s ruling right-wing Law and Justice (PiS) party believes that, following the country’s flawed transition to democracy in 1989, the Polish judiciary, like many key institutions, was expropriated by a well-entrenched, and often deeply corrupt, post-communist elite, which went on to co-opt a new legal establishment that perpetuated its legacy. Judicial reform is, therefore, one of the most important elements of the party’s programme. To this end, the government proposed three key bills aimed at overhauling the country’s legal system. The first involved phasing out the terms of 15 of the 25 members of the National Judicial Council (KRS), a body that selects judges and decides how the courts are run, and selecting their successors by parliament rather than the legal profession as has been the case up until now. The government’s original proposal envisaged these new Council members being elected by a simple parliamentary majority, but was amended to three-fifths following pressure from Law and Justice-backed President Andrzej Duda, a move which would have forced the ruling party to negotiate the appointments with opposition and independent deputies.

A second bill changed the way that the heads of lower district and appeal courts are appointed giving the justice minister broad powers to replace chief judges within six months of the law coming into force; as well as requiring the random allocation of judges to cases in order to tackle what the government argued were corrupt local practices. The third proposed a new procedure for nominating Supreme Court judges requiring all of its current members to retire except for those re-instated by the President but only from a list presented to him by the justice minister (based on National Justice Council recommendations), with future candidates for appointment to the Court selected in the same way. The bill also envisaged the establishment of a new Supreme Court chamber that would make judgements on disciplinary actions against judges, following referrals by the justice minister.

Drifting towards authoritarianism or reforming an entrenched elite?

However, these reforms triggered one of the country’s sharpest political conflicts in recent years. Most of the legal establishment and the opposition – led by the centrist Civic Platform (PO), Poland’s governing party between 2007-15, and smaller liberal Modern (Nowoczesna) grouping and agrarian Polish Peasant Party (PSL) – strongly criticised the legislation arguing that it undermined the independence of the courts and constitutional separation of powers. Warning of a drift towards authoritarian rule, the government’s opponents said that, by putting judicial appointments under political control, these reforms would allow Law and Justice to pack the courts with its own, hand-picked nominees; pointing out that the Supreme Court rules on the validity of national election and referendum results. As a consequence, thousands of Poles protested against the reforms in street demonstrations and candle-lit vigils held in dozens of towns and cities.

The reforms were also heavily criticised by the EU political establishment and Western opinion-forming media, with whom the opposition enjoys close links and many of whom share their dislike of Law and Justice. The European Commission has been involved in a separate, ongoing dispute with the Polish government since January 2016 over the membership and functioning of the country’s constitutional tribunal. As the judicial reform crisis escalated, the Commission appeared to move closer towards taking further action against Poland under the so-called Article 7 procedure, which it can invoke against EU member states where it feels there is a ‘systemic threat’ to democracy and the rule of law. Moreover, in spite of the fact that the US Trump administration is a seen as one of the Polish government’s key international allies, the American State Department also raised concerns about the reforms.

The government’s supporters, on the other hand, said that the reforms were needed to make the judiciary more accountable and ensure that it served all Poles and not just the elites, arguing that Polish courts were too slow, unfair and tolerated frequent irregularities and corrupt practices. The judicial elite, they said, viewed itself as a superior ‘special caste’ out of touch with ordinary citizens, and operated as a ‘state within a state’ incapable of reforming itself. In these circumstances, allowing elected political bodies a greater say in the functioning of the courts, and the appointment of judges and their supervisory bodies, was justified. Moreover, they argued, the reforms did not necessarily impinge upon judicial impartiality as they simply brought Poland more into line with appointment practices in other established Western democracies.

Mr Duda’s shock move

However, in a dramatic and surprising move at the end of the July Mr Duda announced that he would veto the National Judicial Council and Supreme Court bills, while ratifying the law on the lower courts. In fact, from the outset of his presidency Mr Duda has struggled to carve out an independent role for himself and the vetoes were partly the culmination of tensions between the government and a President who was tired of being side-lined. Up until now, Mr Duda has been dismissed by the government’s critics as Law and Justice’s ‘notary’, having (publicly at least) supported virtually all of its key decisions, even the most controversial ones, such as its actions during the bitter and polarising constitutional tribunal dispute.

Announcing his decision, Mr Duda expressed regret that the Supreme Court bill had not been consulted more extensively before it was put to a parliamentary vote and justified his veto on the grounds that the proposed reforms vested too much potential influence over the Court’s operational and personnel decisions in the hands of the justice minister, who in Poland also functions as the chief public prosecutor. Moreover, his condition for approving the National Judicial Council bill, that its parliamentary appointees be elected by a three-fifths majority, was actually introduced as an amendment to the Supreme Court bill, so once he vetoed the latter it was difficult for him to approve the former.

Mr Duda is also aware that in order to secure re-election in 2020 he will need to appeal beyond the Law and Justice hard core and consolidate his support in the political centre. While the majority of Poles are dissatisfied with the way that the courts function, the ruling party was not able to win public support for these particular reforms, with polls suggesting that there was widespread backing for the presidential vetoes. Moreover, Mr Duda may have been influenced by the fact that the anti-government demonstrations appeared to mobilise a more diverse cross-section of the public than earlier protests, notably among young people. Indeed, the most effective opposition seemed to be organised by relatively new grassroots movements, such as the on-line ‘Democracy Action’ (AD) platform, which kept overtly party political slogans and leaders out of the limelight; although several government supporters argue that some of these were actually examples of ‘astroturfing’: orchestrated campaigns designed to look like spontaneous civic actions.

An alternative power centre in the governing camp

When announcing the vetoes, Mr Duda insisted that he supported the government’s broader objective of radically reforming the judiciary and promised to bring forward revised legislation within two months. There was some support for the President within the governing camp, notably those politicians clustered around the ‘Poland Together’ (PR) party led by deputy prime minister Jarosław Gowin, one of Law and Justice’s junior partners in the ‘United Right’ (ZL) electoral coalition. However, the vetoes were generally met with bitter disappointment within the governing camp and viewed as an act of betrayal by some of its leaders, especially those close to justice minister Zbigniew Ziobro, who is also leader of the small ‘Solidaristic Poland’ (SP) party, another Law and Justice ally.

More broadly, Mr Duda’s vetoes have introduced a new and unpredictable element into Polish politics, exposing divisions within, and undermining the cohesiveness of, the governing camp. They have shown that the President no longer considers himself to be dependent upon Law and Justice leader Jarosław Kaczyński who, although he does not hold any formal state positions, has exercised a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities. Mr Kaczyński now has to deal with the emergence of an alternative power centre within the governing camp that he will have to negotiate with in order to secure the passage of the government’s legislative programme. Although presidential vetoes can be overturned by a three-fifths majority, this is larger than the number of parliamentary votes that Law and Justice can muster. Mr Kaczyński values political loyalty above all else but he also knows that a further escalation of the conflict with the President would be suicidal for the ruling party and that he has to work with him to keep the Law and Justice project on track.

At the same time, the opposition parties feel emboldened they were able to secure at least a partial victory and vindicated in their strategy of exerting pressure on the government through a combination of street protests and international influence (in Polish: ‘ulica i zagranica’). However, the reason that the street protests made such an impact was precisely because they appeared to be largely non-partisan, which made it difficult for the government to dismiss them as simply representing the old ruling elites. Indeed, many of those involved appeared to have little time for the current opposition leaders, who face the same problem that they did before the judicial crisis began: their inability to present an attractive alternative to Law and Justice on the social and economic issues that most voters regard as their priority. For this reason, opinion polls suggest that the crisis has not changed voting preferences with Law and Justice still comfortably ahead of the opposition.

For its part, the European Commission has shown no intention of letting up in spite of the presidential vetoes: issuing a new set of recommendations relating to the judicial reforms which, they argue, increase the systemic threat to the rule of law; and saying that it is ready to trigger Article 7 immediately if any Supreme Court judge is dismissed. However, Law and Justice has ignored previous Commission recommendations, saying that they represent political interference in Polish domestic affairs, and unanimity is required in the European Council to trigger sanctions with the Hungarian government, for one, making it clear that it will oppose such moves. In a separate action, the Commission has, therefore, launched an infringement procedure against Poland for alleged breach of EU law, arguing that the common courts law gives the justice minister too much influence on whether or not to prolong judges’ mandates and is discriminatory because it introduces separate retirement ages for men and women. This may eventually result in financial penalties being imposed on Poland but will have to be resolved in the European Court of Justice so could drag on for some time.

Under pressure to deliver

By demonstrating that he can act independently, Mr Duda’s vetoes of the government’s flagship bills reforming Poland’s legal system give him an opportunity to completely re-define his presidency. However, having taken ownership of the judicial reform issue he will now be under intense pressure to deliver. If he does not produce what the government would consider to be meaningful reforms this could alienate his right-wing political base, without necessarily expanding his support in the political centre. But while Mr Duda has drawn some short-term praise from Law and Justice’s opponents, they will quickly revert back to attacking him, especially if he ends up proposing a judicial reform package very similar to the government’s original proposals.

How is the European migration crisis affecting Polish politics?

The European migration crisis re-surfaced as a major issue last month as Poland’s right-wing government came under pressure from the European Commission to comply with the EU’s relocation scheme. However, most Poles are keen to avoid the kind of cultural and security problems that they feel West European countries have experienced through admitting large numbers of Muslim migrants. With the opposition uncertain how to respond the ruling party will continue to oppose migrant quotas vigorously and use the issue to mobilise support for the government.

Law and Justice rejects the EU relocation scheme

The migration crisis has rumbled on for the last two years since it developed as a major issue in Polish politics dividing the main parties in the run up to the most recent October 2015 parliamentary election. Along with the three other Central European ‘Visegrad’ countries – the Czech Republic, Hungary and Slovakia – the previous government, led by the centrist Civic Platform (PO) grouping, initially opposed the European Commission’s proposal for mandatory re-distribution quotas for Middle Eastern and North African migrants located in Greece and Italy. However, concerned that the country was coming across as one of the least sympathetic to the migrants’ plight, the Polish government changed its approach following the summer 2015 migration wave. Civic Platform’s EU strategy was based on trying to locate Poland within the so-called ‘European mainstream’ by presenting itself as a reliable and stable member state adopting a positive and constructive approach towards the main EU powers, so it was anxious to appear to be playing a positive role in helping alleviate the crisis. In the event, at the September 2015 EU summit Poland broke with its Central European allies and signed up to a burden-sharing plan which involved the country admitting 6,200 migrants as part of an EU-wide scheme to relocate 160,000 people in total by September 2017.

On the other hand, the right-wing Law and Justice (PiS) party, at the time the main opposition grouping, bitterly opposed the EU plan arguing that Poland should resist pressure to take in migrants. The party warned that there was a serious danger of making the same mistakes as many West European states with large Muslim communities, which could lead to admitting migrants who did not respect Polish laws and customs and tried to impose their way of life on the country. While it always supported Polish EU membership in principle, Law and Justice was a broadly anti-federalist (verging on Eurosceptic) party committed to defending Polish sovereignty, especially in the moral-cultural sphere where it rejected what it saw as a hegemonic EU liberal-left consensus that undermined Poland’s traditional values and national identity. It viewed the migrant relocation scheme as part of this wider clash of cultures which also threatened the country’s national security.

Not surprisingly, therefore, Law and Justice accused the outgoing Civic Platform government of betraying its Central European allies by taking decisions under EU pressure that undermined Polish culture and security. It argued that the figure of a few thousand migrants was unrealistic because family members would be able to join initial arrivals and that the quota would be used as a precedent to force Poland to take in additional migrants in the future. Following its October 2015 election victory, the new Law and Justice government agreed initially to implement the scheme approved by its predecessor and, as a start, accept 100 migrants. However, in April 2016 it suspended the process arguing that the verification procedures for the vetting of migrants were insufficient to guarantee Polish national security. Since then Poland (along with Hungary) has not accepted any migrants under the EU scheme.

The migration issue re-surfaces and escalates

The migration crisis re-surfaced as a major issue last month when, in a sharp escalation of its dispute with Warsaw, the European Commission decided to launch the first step of a so-called EU law infringement procedure case against Poland (together with the Czech Republic and Hungary) for its refusal to implement the relocation plan. Although the first stage of the process simply requires Poland to give a formal response to letters of notice by the middle of July, it also opens the way for prolonged legal wrangling. The case could take up to five years to resolve at the European Court of Justice and only at this point would Poland face any possible financial penalties.

However, the government’s critics argue that there could still be short-term political consequences as the Commission’s action further weakens the position of a Polish government which, they say, has become increasingly isolated within the EU since Law and Justice took office. The Law and Justice administration has, for example, been involved in an ongoing dispute with the Commission since the latter initiated a ‘rule of law’ procedure against Poland in January 2016 following the outbreak of a bitter, domestic political and legal row over the membership and competencies of the country’s constitutional tribunal. The government’s opponents say this could have a negative impact in the next EU budget round, of which Poland is currently the largest net beneficiary, and the negotiations for which are due to begin in a few months. Law and Justice argues that, as EU budgets require unanimity, Warsaw can prevent any attempts to develop such linkages, although its critics say there are ways that this veto can be by-passed.

Shortly after the Commission launched its legal probe, Law and Justice prime minister Beata Szydło also came under fire for a speech that she made at a ceremony to mark the seventy-seventh anniversary of the first Polish prisoners arriving at the Auschwitz German death camp. Mrs Szydło’s comment that ‘Auschwitz is a lesson showing that everything needs to be done to protect one’s citizens’ was interpreted by the government’s critics as a dog-whistle defence of her government’s opposition to the EU’s migrant quota plan. Earlier, during a May parliamentary debate Mrs Szydło had denounced the ‘madness’ of the European elites for failing to stand up to terrorism and argued that the recent wave of Islamist attacks in Western Europe vindicated Warsaw’s refusal to comply with the relocation scheme. However, accusing her critics of cynicism, Law and Justice denied that Mrs Szydło’s remarks at the Auschwitz commemorations in any way referred to the issue of migration.

The Law and Justice government has responded by vowing to fight the Commission’s infringement action all the way. It argued that the EU scheme was pushed through using a qualified majority vote on very weak legal foundations; Hungary and Slovakia have challenged it in a separate action which the Court of Justice is expected to give an initial ruling on within the next month. Law and Justice denounced the Commission’s move as an instance of double standards, pointing out that, although Poland and Hungary were the only countries not to have taken in any migrants under the programme, no other EU member state had so far fulfilled its commitments. The party argued that Warsaw had shown solidarity by helping to protect the EU’s external borders and allocating funds to aid victims of conflicts locally; although less than other countries, according to its critics. It also pointed out that Poland had taken in over one million migrants from war-torn Ukraine, thus easing migrant pressures on other EU countries; although the government’s critics said that these were virtually all economic migrants rather than refugees.

Different civilizational choices?

In fact, most Poles are strongly opposed to the EU migrant quota scheme. A May 2017 survey conducted by the CBOS polling agency, for example, found that 70% were against accepting refugees from Muslim countries and only 25% in favour; with 65% still opposed even if Poland was threatened with financial penalties. Poland is an overwhelmingly Catholic country with very few ethnic minorities which has had little experience of the modern migrations that have transformed Western Europe. Poles are keen to avoid the kind of cultural and security problems that many of them feel West European countries have experienced through admitting large numbers of Muslim migrants who are seen as difficult to assimilate and embedding violent extremists within their communities. Not surprisingly, therefore, Law and Justice has made the European migration crisis one of the most important issues legitimising its government. Indeed, last month ruling party-backed President Andrzej Duda proposed holding a national referendum on the issue, possibly timed to coincide with the next autumn 2019 parliamentary election.

This is important because a key motivation for Poles voting overwhelmingly to join the EU in the country’s 2003 accession referendum, especially among the older generations, was the idea that the European integration process represented a symbolic re-uniting of Poland with a Western international community of shared values that they had always considered themselves to be part of culturally and spiritually. This notion of EU membership as a natural and obvious historical and civilisational choice has, however, come under strain in recent years due to an increasing sense of cultural distinctiveness that many Poles feel towards Western Europe. This was particularly evident in the sphere of moralcultural values where Polish attachment to traditional morality and national identity stands in stark contrast to the socially liberal, cosmopolitan consensus that predominates among West European cultural and political elites. The contrasting reaction of Poles (and other Central Europeans) to the European migration crisis highlighted this and raised questions about whether they actually wanted to make the same civilizational choices as West Europeans.

Opposition uncertain how to respond

At the same time, the migration crisis has left Poland’s liberal-centrist opposition uncertain how to respond. Civic Platform, which is now the main opposition party, has undertaken dramatic political contortions on the issue trying to strike a balance between competing domestic and international pressures. On the one hand, party leader Grzegorz Schetyna was concerned to be seen to be responding to popular anxieties, so in May told a reporter that Civic Platform was against Poland accepting any refugees. Then, as it came under pressure from the strongly pro-EU liberal-left media and cultural establishment, Civic Platform rowed back saying that it was only against ‘illegal migrants’. Moreover, accusing Law and Justice of being anti-European and promoting xenophobia, Mr Schetyna’s party said that it favoured accepting a few dozen refugees as long as they were mostly women and children who were genuinely escaping armed conflict and had been vetted on security grounds.

However, one problem for Law and Justice is that a number of senior clergymen from Poland’s influential Catholic Church appear to disagree with the government’s approach towards the migration issue. This is awkward for the ruling party which presents itself as a staunch defender of Christian values and enjoys a great deal of sympathy among Catholic bishops, clergymen and Church-linked civil society organisations. One suggestion made by the Church Episcopate has been to establish so-called ‘humanitarian corridors’ for the medical treatment in Poland of a few hundred carefully selected refugees. However, although the government appears to be broadly sympathetic to this idea, it has also expressed concerns about the practicalities, specifically whether effective security controls can be implemented to vet these refugees, and has argued that it is easier to open hospitals on-site in refugee camps where more people could be treated.

Smoothing Law and Justice’s path to re-election?

Poland’s Law and Justice government has, therefore, taken an increasingly hard line against the EU’s migrant re-distribution programme and appears ready for a lengthy legal battle with the Commission over the issue. The ruling party considers the migration crisis to be of huge political and symbolic importance going well beyond the numbers involved and raising vital concerns about national sovereignty, identity and security. Knowing that the vast majority of Poles are strongly opposed to the EU scheme, and that the liberal-centrist opposition is uncertain how to respond, Law and Justice will continue to use the issue to mobilise public support and thereby, it hopes, smooth the ruling party’s path to re-election in 2019.

Has Poland’s Law and Justice government regained the political initiative?

Although Poland’s right-wing government has been on the defensive following a series of mini-crises, it has maintained a solid base of support by delivering on its key social welfare spending promises. Last month, the main opposition party lost ground as it came under much greater scrutiny, especially on the European migration crisis issue. However, even if macro-economic indicators remain positive and the government delivers policies that improve ordinary people’s living standards, Poles may still opt for a party than appears to offer them a calmer and more stable political environment.

An accumulation of mini-crises

The Polish government, led since autumn 2015 by the right-wing Law and Justice (PiS) party, has found itself on the defensive in recent months as it encountered a series of mini-crises. This began at a March EU summit when Poland was isolated in its attempt to prevent the re-election of Donald Tusk – former prime minister and one-time leader of the centrist Civic Platform (PO), the country’s governing party between 2007-15 and currently the main opposition grouping – for a second term as European Council President. Then, in April Mr Tusk was questioned by the public prosecutor about his knowledge of a co-operation agreement between Polish military counter-intelligence and the Russian security service. Mr Tusk’s arrival at Warsaw railway station, and carefully choreographed walk to the prosecutor’s office surrounded by supporters, was turned into a media spectacle giving the impression of a triumphant return to the national scene by a politician being hounded by the ruling party.

There were also disputes and divisions within the ruling party played out in the media glare rather than being resolved behind-the-scenes. For example, Law and Justice-backed President Andrzej Duda appeared to be at odds with defence minister Antoni Macierewicz following the latter’s failure to give official responses to correspondence requesting clarification of the ministry’s work in a number of areas. More broadly, stung by allegations that he is a subservient and politically partisan President, Mr Duda has (albeit rather tentatively) started to try and carve out a more independent political role for himself by, for example, expressing his concerns about a number of government measures. Opposition from the President was, for example, one of the factors that led Law and Justice to withdraw its proposal to create a two-term limit for elected local mayors, which would have operated retrospectively so that it included incumbents standing in the next autumn 2018 local polls.

Recent months also saw various controversies and scandals involving a number of government-appointed officials. In April, 27-year-old Bartłomiej Misiewicz, a former close aide to Mr Macierewicz, was forced to resign as a Law and Justice member when a special commission set up by party leader Jarosław Kaczyński ruled that he was not qualified or experienced enough to fulfil the various functions to which he had been appointed. Media reports suggested that Mr Misiewicz had been offered a huge salary and perks in the state-run Polish Armaments Group (PGZ) in spite of earlier being forced to resign as defence ministry spokesman. This was followed by the resignation of Wacław Berczyński as head of the commission re-investigating the 2010 Smolensk air crash, after he claimed to have influenced the government’s decision last year to abandon a planned deal to purchase 50 Caracal military helicopters from the French-based Airbus company, even though he had no competencies in this area and potential conflicts of interest. The allegation that Law and Justice has tolerated cronyism is particularly damaging because a fundamental element of the party’s appeal has been its claim to stand for the moral renewal of the Polish state in contrast to its scandal-ridden Civic Platform-led predecessor.

At that same time, there has been increasing pressure on the government in a number of policy areas where it has been drawn it into conflicts with various interest groups. For example, the government was heavily criticised for its failure to respond positively to a petition organised by the Union of Polish Teachers (ZNP), the main teaching union, signed by over 900,000 citizens calling for a nationwide referendum on its educational reforms. The government argues that the reforms were clearly set out in its manifesto and widely consulted, while a summer referendum would cause chaos given that they are due to come into effect when the new school year begins in September. However, the petition put Law and Justice in an awkward position, given that when in opposition it had criticised its Civic Platform-led predecessor for ignoring civic referendum initiatives.

None of these various individual mini-crises were decisive of themselves but their cumulative effect was to put Law and Justice on the back-foot and undermine the government’s credibility and morale. Indeed, even a recent spate of car accidents involving Mr Duda, Mr Macierewicz and prime minister Beata Szydło (who was hospitalised for several days as a result) allowed the opposition to portray the ruling party as a privileged caste who were not even subject to the same traffic rules as ordinary citizens; important because one of Law and Justice’s main criticisms of the previous Civic Platform administration was that it represented an arrogant and out-of-touch elite. As a consequence, opinion polls started to indicate a shrinking of Law and Justice’s previous double-digit lead, and a couple of them even showed Civic Platform overtaking the ruling party.

Delivering on social spending and the economy

In fact, the narrowing of Law and Justice’s poll lead was due largely to the consolidation of the previously fragmented opposition around Civic Platform. Indeed, the latest data produced by the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys showed that by mid-May Law and Justice had recovered and once again opened up a clear lead with 37% support (in the October 2015 parliamentary election it secured 37.6%) compared to 30% for Civic Platform. A May 2017 survey for the CBOS polling agency also found that the number of government supporters was, at 39%, at its highest level since Law and Justice took office (34% were opposed and 25% neutral).

The government has maintained a solid base of support due in large part to the fact that it has delivered on several of the social spending promises that were the key to its 2015 election victories. The most significant of these were: its extremely popular flagship ‘500 plus’ child subsidy programme for the first children of poorer households and every second and subsequent child in all families; and a law reversing the previous administration’s deeply unpopular pension reforms, which had increased the retirement age to 67 (from 60 for women and 65 for men). For their part, the government’s critics point out that there are also a number of key pledges that it has failed to implement, notably a substantial across-the-board increase in tax allowances.

Moreover, the Polish economy is also performing better than expected, with investment increasing and unemployment falling to its lowest level in 25 years. For sure, the government’s critics argue that it is benefiting from a short-term consumption boom rather than increased productivity and, although the state budget deficit is under control due to increased tax revenues, the level of public debt remains high and increased social spending could impose a future burden if there is an economic downturn. Nonetheless, policies such as ‘500 plus’ have provided a significant and clearly identifiable financial boost for many low income households frustrated that they had not shared sufficiently in earlier periods of economic growth. Interestingly, a May CBOS survey also found that 43% of respondents evaluated the economic situation positively (and only 15% negatively), the highest level since 1989.

Civic Platform under pressure

At the same time, Civic Platform has come under much greater scrutiny as Law and Justice has forced it to spell out and defend its own programmatic alternatives rather than simply criticise the government in general terms. For example, having previously argued that ‘500 plus’ would place an unaffordable strain on the public finances, the opposition grouping has tried to outflank Law and Justice by arguing that the programme should be extended to include every child regardless of family income. However, knowing that this risks damaging the party’s fiscal credibility Civic Platform has also suggested that it will limit entitlements by excluding parents who are not working or seeking work. This has left the party both open to the charges of opportunism while simultaneously creating uncertainty among voters favouring greater social welfare spending as to whether Civic Platform is really committed to maintaining the programme.

Moreover, the revival of debate around the EU migration crisis also put Civic Platform on the defensive. The Law and Justice government has taken an increasingly hard line on this issue refusing to implement a 2015 deal agreed by the previous Civic Platform-led administration whereby Poland would admit 7,000 people as part of an EU-wide scheme to relocate 160,000 Middle Eastern and North African migrants, and says that it is ready for a lengthy battle with the EU institutions if necessary. Knowing that opinion polls show three-quarters of Poles are against the EU scheme, Civic Platform leader Grzegorz Schetyna initially denied that the migration crisis was still an issue and then, when pressed by a reporter, appeared to suggest that he was against admitting any refugees. However, under pressure from the liberal-left media, Civic Platform rowed back from this and suggested instead that it was only against ‘illegal migrants’ and in favour of accepting a small number of refugees who were genuinely escaping armed conflict and had been vetted on security grounds. To add to the confusion, the majority of the party’s MEPs abstained during a May European Parliament debate on the issue.

2005 or 2007?

Civic Platform’s programmatic zig-zags came as a huge relief to Law and Justice after a series of cumulative public relations mini-crises had knocked the ruling party’s earlier momentum and self-belief. Law and Justice hopes that its social welfare policies will be a key issue determining the shape of the political debate right up to the next election. In this sense, the ruling party will be hoping the next election is a re-run of the 2005 parliamentary and presidential polls which Law and Justice won by framing the contest as a choice between its own socially ‘solidaristic’ vision of Poland and Civic Platform’s much less appealing economically liberal approach. However, ‘500 plus’ and other government social policies can only be weaponised politically if voters feel that the opposition represent a genuine threat to their continuation, and last month Law and Justice was able to create considerable doubt as to whether Civic Platform was really committed to them.

Nonetheless, although Law and Justice’s support appears to be holding steady, the nightmare haunting the party is that the next election actually becomes a repeat of the 2007 poll. Then, as the incumbent, Law and Justice mobilised its core supporters and even increased its share of the vote on the back of a strong economic performance, but ultimately lost because even larger numbers turned out to vote for Civic Platform which promised a less combative governing style. So even if the macro-economic indicators are good and Poles are pleased that Law and Justice has delivered policies that have had a visible, positive impact on their living standards, they could once again opt for a party that appears to offer them the best chance to enjoying the fruits of a strong economy and generous social welfare in a more calm and stable political environment. Regardless of whether one believes that the cause of this instability is an overly-confrontational government needlessly opening up conflicts on too many fronts or, as the government’s supporters argue, an irresponsible opposition trying to whip up hysteria, it is this potential concern among Poles that the country is in a state of semi-permanent political conflict that could be the biggest challenge facing the ruling party and key to its future prospects.

Is Poland’s Civic Platform a serious threat to the ruling party?

Poland’s main opposition grouping appears to have seen off its challengers and be drawing level with the ruling party in the polls. Although underestimating the opposition would be a serious mistake for the governing party, for many Poles it remains associated the previous, discredited administration and does not yet offer a credible alternative.

Challengers for the opposition leadership

The centrist Civic Platform (PO), which was Poland’s ruling party between 2007-15 and is currently the main opposition grouping, suffered a crushing defeat in the most recent October 2015 parliamentary election at the hands of the right-wing Law and Justice (PiS) party. The former governing party saw its vote share fall by 15.1 percentage points to 24.1% and number of seats held in the 460-member Sejm, the more powerful lower chamber of parliament, decline from 207 to only 138. Earlier, in the May 2015 presidential election Civic Platform-backed incumbent and odds-on favourite Bronisław Komorowski lost to Law and Justice challenger Andrzej Duda. Much of the widespread disillusionment with the political establishment and strong prevailing mood that it was time for change was directed against Civic Platform whom many voters saw as representing an out-of-touch and complacent elite disconnected from the concerns of ordinary people and tainted by scandals. When Grzegorz Schetyna took over as leader in January 2016 the party faced a major, possibly even existential, crisis.

Meanwhile, a significant challenger for the opposition leadership emerged in the form of the ‘Modern’ (Nowoczesna) grouping led by liberal financial sector economist Ryszard Petru. ‘Modern’ was elected to the Sejm for the first time in 2015 securing 7.6% by picking up support from voters who felt that Civic Platform had drifted away from its free market roots. The party’s greatest asset, however, was the fact that it was able to contrast its ‘newnesss’ with the more compromised figures associated with Civic Platform. Without the political ballast of having to defend eight years in office, Mr Petru’s criticisms of the Law and Justice government appeared more authentic and credible and, as a consequence, ‘Modern’ pulled ahead of Mr Schetyna’s party in the polls.

At the same time, the main focus for mobilising extra-parliamentary opposition to Law and Justice came from the Committee for the Defence of Democracy (KOD), which was formed in November 2015 days after the new government took office. Although the initial impetus for its protests was controversy over the membership and functioning of Poland’s constitutional tribunal, the Committee subsequently broadened out into a more general anti-Law and Justice civic movement. Government supporters argued that its activities were orchestrated by opposition politicians and vested interests hostile to Law and Justice’s plans to radically reconstruct the Polish state and introduce sweeping socio-economic policy reforms. Nonetheless, the Committee was able to project itself, both domestically and internationally, as a large, bottom-up movement of ordinary citizens genuinely concerned about the apparent risk to democracy, civic freedoms and the rule of law in Poland, and mobilised thousands in anti-government street protests.

Mr Schetyna restores discipline and purpose

However, Civic Platform retained a number of important advantages over its rivals. These included: a large caucus of experienced parliamentarians; considerable financial resources and access to state party funding; a relatively well-developed grassroots organisational network; and a local government base that included control of most of Poland’s large cities and 14 out of 16 regional authorities, which play a key role in distributing EU funds and are a major source of local patronage. Mr Schetyna is also a good organiser who has restored a sense of discipline and purpose to the party. At the same time, although he is a deeply pragmatic politician, Mr Schetyna tried to position himself as the government’s most uncompromising opponent by adopting an approach dubbed ‘total opposition’ and, in contrast to Mr Petru, boycotted negotiations with the ruling party.

‘Modern’, on the other hand, lacked both grassroots organisational structures and experienced, battle-hardened politicians in its small parliamentary caucus. Unlike Mr Schetyna, who spent the first phase of his leadership attempting to consolidate the party’s local structures, Mr Petru chose a more centralised and media-orientated organisational strategy. This will pose problems for the party when it has to find thousands of candidates to contest the autumn 2018 local elections, the next major electoral test. Embarrassingly for a grouping that prided itself on its managerial competence, ‘Modern’ was also hit by a court ruling that it had broken campaign funding rules and, as a consequence, stripped of it election refund and three-quarters of its 6 million złoty annual state subvention.

However, Modern’s biggest underlying weakness lay in the narrowness of its programmatic appeal, given that experience suggests that the social base for a technocratic, pro-business liberal party in Poland is relatively small. Civic Platform’s weak ideological underpinnings, on the other hand, always gave it much greater reach across the political spectrum and the potential to garner the support of a very broad coalition of voters united by their dislike of Law and Justice. Particularly after it took office in 2007, Civic Platform adopted a deliberate strategy of diluting its ideological profile and projecting itself as a somewhat amorphous centrist ‘catch-all’ party, albeit with an increasingly socially liberal tilt. Mr Schetyna also appears to believe that only an ideologically eclectic, rather than overtly liberal, appeal can peel away enough centre-right voters to make Civic Platform an effective challenger to Law and Justice. He has talked about restoring the party’s ‘conservative anchor’ (rhetorically, if not in terms of any actual policy shifts) arguing that in recent years it had been too identified with social liberalism.

Moreover, not only did ‘Modern’ lose momentum as the effect of its ‘newness’ wore off but a series of gaffes by Mr Petru allowed the party’s opponents to portray him as an over-promoted political lightweight. Most spectacularly, in an appalling error of judgement Mr Petru went to Portugal for a New Year’s Eve holiday with one of his deputies, the recently divorced Joanna Schmidt, while their party colleagues were involved in a parliamentary sit-in protest as part of an apparently urgent struggle to save Polish democracy. ‘Modern’ has not really recovered from this public relations disaster and last month its internal divisions were exposed further when the party suffered its first parliamentary defections as four of its deputies joined Civic Platform.

The Committee for the Defence of Democracy was also hit by a leadership crisis when in January documents leaked to the press revealed that more than 120,000 złoties from its public collections had been channelled in regular payments to an IT company owned by its leader Mateusz Kijowski, a computer programmer who quickly rose from obscurity to head up the organisation, and his wife. Not only was the Committee’s leadership unaware of these payments, they appeared to contradict a claim by Mr Kijowski (who had previously come under attack from government supporters for his inability to pay alimony from an earlier marriage) that he did not receive any official income from the movement. In fact, the Committee had been losing momentum even before the IT contract scandal and appeared to have little idea of how to reach out to Poles who were not already committed government opponents, especially to younger people who were notably under-represented on its protests.

Mr Schetyna’s party also received a major boost when the Law and Justice government was isolated at a March EU summit in its attempt to prevent the re-election of Donald Tusk, Civic Platform’s co-founder and former leader who served as Polish prime minister from 2007-14, as European Council President. Although he is Mr Schetyna’s bitter political enemy, most Poles still identify Mr Tusk with Civic Platform and the party was able to portray his re-election as an important symbolic victory and major political turning point. Indeed, the latest data produced by the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys shows Law and Justice losing its one-time double digit lead and now on 34% support compared with 32% for Civic Platform; with ‘Modern’ down to only 5%. In fact, the ruling party has only seen a relatively small 3-4% dip in its ratings and the narrowing lead was due largely due to the consolidation of the opposition around Civic Platform; although some commentators suggest that Mr Schetyna’s party also received a boost in support from previously undecided voters when it became clear that it was the main challenger to Law and Justice.

Still not a credible alternative?

It would be a mistake for Law and Justice to think that Civic Platform does not represent a potentially extremely serious electoral threat. The political scene remains very polarised and, with Civic Platform having seen off the challenge for the opposition leadership from both ‘Modern’ and the Committee for the Defence of Democracy, the two-party duopoly that has dominated Polish politics since 2005 appears to be re-asserting itself. While the government retains widespread support, many Poles are also uneasy about its alleged centralising tendencies, and there are increasing concerns about some of it actions and policies even among voters who are broadly sympathetic to Law and Justice. The opposition also enjoys the support of most of Poland’s business and media elites, and has strong links with the EU political establishment and much of the Western opinion-forming media which share its dislike of Law and Justice.

Mr Schetyna is clearly a very effective and ruthless behind-the-scenes political operator who has consolidated his grip on the Civic Platform apparatus and marginalised his internal party opponents. However, he lacks dynamism and charisma and, although it is keeping a low profile at the moment, there is still a sizeable internal opposition to his leadership especially among those younger Civic Platform deputies who were close to Mr Tusk and his successor as Civic Platform leader and prime minister, Ewa Kopacz, but have been marginalised by Mr Schetyna. Moreover, although he was not in the party’s inner circle for a number of years before becoming leader, for many voters Mr Schetyna is still associated in the public mind with the previous, discredited Civic Platform government. Law and Justice’s 2015 victories reflected widespread disillusionment with the country’s ruling elite and most Poles do not simply want a return to the pre-election status quo.

For sure, the next parliamentary election is not scheduled until autumn 2019, plenty of time of time for memories of the previous government to fade, and Mr Schetyna has lifted his party’s morale by landing some effective blows on the current administration. Having spent too much time over the last year focusing on constitutional matters that ordinary Poles find too abstract, Civic Platform has finally started to address the social and economic issues that are of more pressing concern to most voters. However, now that it is the unquestioned main opposition to Law and Justice, Civic Platform will start to come under much greater scrutiny. It still comes across as opportunistic and failing to offer a credible alternative that goes beyond simply criticising the current government. For example, Mr Schetyna has tried to outflank Law and Justice on social spending pledges by arguing that the government’s extremely popular flagship ‘500 plus’ subsidy programme for the first children of poorer households and every second and subsequent child in all families should be extended to include every child. However, in doing so he risks both damaging the party’s fiscal credibility while failing to convince voters who favour greater social welfare spending but remember that Civic Platform had previously argued that ‘500 plus’ would place an unaffordable strain on the public finances, particularly given that the party has also suggested that it will limit entitlements to the programme in other ways. Mr Schetyna’s party, therefore, still needs to develop a more attractive and convincing political alternative if it is to mount an effective electoral challenge to Law and Justice.

How will Donald Tusk’s re-appointment as European Council President affect Polish politics?

Poland’s right-wing government suffered its most high profile defeat to date when it failed to prevent the re-appointment of Donald Tusk, whom it accused of interfering in Polish domestic politics, as European Council President, raising concerns that the country was becoming isolated on the EU’s periphery. Opinion polls show a slump in the ruling party’s lead and boost for the main opposition grouping but it is unclear whether this is a political turning point or short-term blip.

Concerns over Mr Tusk’s impartiality

Mr Tusk was co-founder and one time leader of the centrist Civic Platform (PO), Poland’s main governing party between 2007-15 and currently the largest opposition grouping, and served as prime minister until November 2014. His first term as European Council President ends in May and, shortly before the March EU summit that voted on his re-appointment, Poland’s ruling right-wing Law and Justice (PiS) party put forward Civic Platform MEP Jacek Saryusz-Wolski as an alternative candidate for the post. Mr Saryusz-Wolski is a highly competent politician who helped to negotiate Poland’s EU accession and since 2004 held senior positions in the European Parliament (EP) but has been in conflict with the Civic Platform leadership for a number of years and tried to build links with Law and Justice after it came to office in autumn 2015.

Law and Justice accused Mr Tusk of violating the principle that EU officials should refrain from becoming involved in the political affairs of member states and using his position to undermine the government by unconstitutional means. Last December, he appeared to support opposition attempts to block the work of the Polish parliament during a tense stand-off over proposed parliamentary media access reforms and a disputed vote on the budget. It argued that it would be difficult for Mr Tusk to secure consensus among EU leaders without a minimum of trust from all member states, and that extending the mandate of a senior EU official despite strong objections from their home country’s government set a dangerous precedent.

Law and Justice also warned that Mr Tusk faces several investigations relating to actions taken when he was prime minister. These include his alleged responsibility for the 2010 Smolensk air crash that killed 96 people – including the then-President Lech Kaczyński, twin brother of Law and Justice leader Jarosław Kaczyński – and subsequent mis-handling of the crash investigation. A special parliamentary commission investigating the 2012 Amber Gold pyramid scheme scandal, as a result of which thousands of Poles lost their savings, is also trying to establish whether Mr Tusk had prior knowledge of the company’s problems which he shared with this son, who was employed by one of its subsidiaries, and then tried to cover up.

Mr Tusk could be the most serious challenger to Law and Justice-backed incumbent Andrzej Duda in Poland’s next presidential election which is scheduled for summer 2020 (Mr Tusk’s second term as Council President ends in November 2019). For sure, Mr Tusk saw his popularity slump during the last two years of his premiership and it is unclear if he is even interested in returning to the front-line Polish politics. Nonetheless, he remains a charismatic political figure and – as the case of Jerzy Buzek, who was one of Poland’s most unpopular prime ministers in 1997-2001 but re-invented himself as a high profile Civic Platform MEP and EP President, shows – it is possible for a Polish politician to re-establish themselves on the national political scene through a high profile EU position. Law and Justice is trying to chip away at Mr Tusk’s credibility by reminding voters of the shortcomings and pathologies of the previous Civic Platform administration. It also hopes that by opposing his re-appointment as Council President the government can distance itself from any perceived shortcomings in the way that he handles the difficult issues that the EU faces over the next couple of years.

In the event, in spite of its intense, last-minute diplomatic efforts Law and Justice could not even secure the backing of Hungary and the UK, its closest European allies, and only the Polish government opposed Mr Tusk’s re-appointment. Prime minister Beata Szydło refused to sign the summit’s final communique in protest against how the election was handled – rather than putting the matter to a vote, the Maltese chair simply asked member state governments to register their opposition – although this turned out not to have any legal significance as its decisions were adopted anyway.

Isolated or empowered?

Poland’s main opposition parties, Civic Platform and the smaller liberal ‘Modern’ (Nowoczesna) grouping, argued that even if Mr Tusk was not personally sympathetic to the Law and Justice government it should not undermine the first Pole to reach the pinnacle of the EU institutions. They accused Law and Justice of bringing Polish internal political conflicts into the EU arena, claiming that Mr Tusk had simply called upon the government to respect the country’s Constitution, and said that Mr Kaczyński (who holds no state offices but many commentators consider Poland’s most powerful politician) was pursuing a personal vendetta against him.

They also argued that Law and Justice’s isolation exemplified the broader failure of its EU diplomacy. The current government has moved away from the strategy pursued by its Civic Platform-led predecessor of trying to locate Poland within the so-called ‘mainstream’ and prioritising the development of close relations with the main EU powers, especially Germany. Law and Justice, on the other hand, argues that Poland needs to be more robust and assertive in advancing its national interests and form its ‘own stream’ within the EU by, for example, building alliances with central and East European post-communist states to counter-balance the influence of the Franco-German axis. However, the opposition point out that the major EU powers have signalled that they favour the development of a ‘multi-speed’ Europe and there is a real danger that Poland will end up marginalised on the Union’s periphery unless it re-joins European mainstream politics. They also warn that the failed attempt to unseat Mr Tusk could be a precursor to eventual ‘Polexit’: Law and Justice taking Poland out of the EU.

The government’s supporters respond that Law and Justice remains strongly committed to EU membership but wants a fundamental re-think of the trajectory of the European project. They argue that last June’s Brexit vote in the UK was a vindication of its critique of the EU political elite who precipitated mounting Euroscepticm by over-centralising and trying to force their vision of deeper European integration against the popular will. Law and Justice wants to bring the EU back to its original role as a looser alliance of economically co-operating sovereign nation-states with a more consensual decision making process that reduces the dominant role of the Franco-German axis.

By opposing the re-appointment of Mr Tusk, whom Law and Justice dubbed the ‘German candidate’, Poland, they argue, exposed the lack of transparency in the EU’s procedures and that far-reaching reforms were required to re-connect the Union with ordinary citizens. Mr Tusk was only re-elected due to pressure from Berlin who wanted a Council President who would have no qualms about implementing policies favoured by the main EU powers. The fact that Poland was prepared to defend its position on a matter of principle even when it was in a minority of one showed that the country had asserted itself as a sovereign state, regaining the empowerment (‘podmiotowość’, literally ‘subjectivity’) that it had lost under the previous Civic Platform-led administration.

Opposition on the offensive

The idea of Polish EU membership as a natural and obvious historical-civilisational choice has come under strain in recent years and public support is driven increasingly by the tangible material benefits that the Union is felt to deliver. Moreover, survey evidence shows many Poles share Law and Justice’s concerns about the trajectory of the European project and are critical of attempts to deepen integration. Nonetheless, an overwhelming majority still support EU membership; a March survey by the IBRiS agency for the ‘Rzeczpospolita’ newspaper found that they did so by a margin of 78% to 12%. The government’s opponents may have raised genuine concerns among a section of Poles that Law and Justice was becoming increasingly anti-EU and statements by some party spokesmen in the wake of the EU summit, whatever their actual intentions, appeared to confirm the opposition’s narrative. However, most Poles accepted the government’s argument that it had no intention of promoting ‘Polexit’.

The greater concern was that the government’s actions may have weakened Poland’s position within the EU’s decision-making structures. Polish-EU relations and foreign affairs more generally are rather abstract questions for most Poles that rarely determine their political preferences. But they start to become salient if Poles feel that the country’s potential isolation threatens their tangible, day-to-day concerns. Poland is currently the largest beneficiary of EU regional aid, which many commentators see as crucial to the country’s economic modernisation but the opposition argue could be placed in jeopardy; during the March EU summit French President Francois Holland remarked menacingly that Poland ‘may have principles, but we have the structural funds’.

Moreover, because the dispute over Mr Tusk’s re-appointment focused on a very well-known individual, Poles were able to identify with it much more easily than most foreign policy debates. Most were unconvinced by Law and Justice’s argument that he represented the interests of foreign powers and felt it was in the national interest to have a Pole holding a senior EU post, however symbolic. A poll conducted by the Kantar Millward Brown agency for the ‘300polityka’ website, found that, by margin of 60% to 25%, Poles were pleased that Mr Tusk had been re-elected, and only 12% felt that he was a ‘German candidate’ while 49% said that he represented the interests of the EU as a whole.

The government’s failed attempt to block Mr Tusk’s re-appointment gave the opposition its best opportunity in the current parliament to go on the political offensive. Four opinion polls conducted since the summit showed Law and Justice’s lead reduced from double figures to less than 5%, while Civic Platform saw a substantial increase in its support. However, this was due largely to the consolidation of the opposition as a result of the ongoing decline of ‘Modern’ and the fact that many Poles still identify Civic Platform with Mr Tusk, with only a relatively small drop in support for the ruling party.

Turning point or blip?

Law and Justice has tried to challenge the notion that the government is ineffectual and isolated within the EU. It attempted to present itself as an effective defender of a united and solidarisitc EU through its (the opposition argues, rather theatrical) opposition to any references to a ‘multi-speed’ EU in the declaration mapping out a post-Brexit vision of the Union’s future issued at the end of March by the Rome summit commemorating the sixtieth anniversary of the founding of the European communities.

At the same time, Civic Platform has a real sense that it has finally put Law and Justice on the defensive, and filed a motion of no-confidence in the government which is likely to be debated in April. Although it has no chance of passing, given that the ruling party has an outright parliamentary majority, the accompanying debate will keep the topic of Mr Tusk’s re-appointment, which will form the core of Civic Platform’s case against the government, high up on the political agenda. Law and Justice, in turn, will be keen to re-focus debate back on to domestic socio-economic issues where it is more in tune with public opinion than the opposition parties. The key question now is: will the government’s EU summit defeat mark a political turning point or will any ‘Tusk effect’ fade and the balance of forces snap back quickly to where it was before the re-appointment row?

How will Poland approach the Brexit negotiations?

Brexit means that Poland’s right-wing government is losing its most important EU ally and the opposition warns that the country could end up marginalised on the European periphery. But the ruling party argues that Warsaw is a leader in debates on the EU’s future and is calling for a re-think of the trajectory of the European project. The future status of Poles living in the UK could, however, complicate its plans to ensure an amicable Brexit settlement.

Losing a key EU ally

Brexit means that Poland is losing a key EU ally. Both countries shared a similar vision of an expanded single market combined with a reluctance to allow the EU more economic policy powers, especially on taxation. They are strongly Atlanticist and viewed the development of EU security and defence policies as complementary, rather than an alternative, to the NATO alliance. Poland also saw the UK as a strong supporter of an assertive EU approach towards Russia, fearing that France and Germany are too inclined to strike up cosy bi-lateral deals with Moscow that side-line the post-communist states.

Indeed, the current Polish government, led since autumn 2015 by the right-wing Law and Justice (PiS) party, viewed Britain as its most important strategic partner within the EU. Law and Justice came to office arguing that Poland needed to move away from the EU strategy pursued by its predecessor, led by the centrist Civic Platform (PO) party. This involved trying to locate Poland within the so-called ‘mainstream’ by presenting the country as a ‘model’ European state at the forefront of integration and prioritising the development of close relations with the main EU powers, especially Germany. Law and Justice, on the other hand, argued that Poland needed to be more robust and assertive in advancing its national interests and form its ‘own stream’ within the EU by, for example, building alliances with central and East European post-communist states to counter-balance the influence of the Franco-German axis. It identified Britain’s Conservative government, which had a similar anti-federalist approach towards EU integration, as its most significant ally in advancing this project.

The British Conservatives also defended Law and Justice in its bitter dispute with the European Commission over the membership and functioning of Poland’s constitutional tribunal. The Commission claims that there is a ‘systemic threat’ to democracy and the rule of law in Poland and is considering making a recommendation to the European Council that sanctions be imposed under Article 7 of the European treaties; in the worst-case scenario suspending Warsaw’s voting rights. However, Law and Justice both questions the legality of the Commission’s actions and rejects its claims as biased, arguing that the government has simply been trying to restore pluralism and balance to a public institution that was packed illegally with supporters of the previous governing party. It is expected that Britain will join Hungary, and possibly other states, in opposing any attempts to introduce sanctions on Poland, which require unanimity in the Council.

Repairing not dismantling

However, in spite of its anti-federalism and commitment to defending Polish sovereignty, the dominant view within Law and Justice is that it is in Poland’s interests to remain in the EU and try to reform it from within. As Polish foreign minister Witold Waszczykowski put it in last month’s parliamentary foreign policy debate, the government’s ‘priority is to repair the European Union, not to dismantle it’. Only fringe political groupings on the radical Eurosceptic right have called for ‘Polexit’ and although most Poles are critical of attempts to deepen European integration in a number of areas the overwhelmingly majority of them support continued EU membership.

Rather, Law and Justice sees the debate about the future of the EU precipitated by Brexit as an opportunity for a fundamental re-think of the trajectory of the European project. The party argues that the Brexit vote was a vindication of its critique of the EU political elite who precipitated mounting Euroscepticm by over-centralising and trying to force their vision of deeper European integration against the popular will. Law and Justice is calling for a new European treaty that brings the EU back to its original role as a looser alliance of economically co-operating sovereign nation-states, with a more clearly defined division of rights between the Union and its members and a consensual decision making process that makes it more difficult for any country to gain hegemony. This would involve: weakening the Commission bureaucracy, whose role would be restricted to regulating the single market, restoring more decision-making power to national governments and parliaments, and reducing the dominant role of the Franco-German axis.

Marginalised on the EU’s periphery?

However, Poland’s main opposition parties, Civic Platform and the smaller liberal ‘Modern’ (Nowoczesna) grouping, have argued that, not only is there little appetite for amending the EU treaties, but – with the departure of the UK, the largest non-Eurozone economy – the locus of Union decision making is likely to shift to those states that are part of the single currency area. They say that alliances with post-communist states are not an effective counterweight to the Franco-German axis because these encompass too many conflicting interests. They have also criticised Law and Justice for suggesting that Poland will not support extending former Civic Platform prime minister Donald Tusk’s mandate when his first term as EU Council President expires in May, in spite of the fact that he enjoys widespread backing from European leaders. Law and Justice argue that instead of protecting Polish national interests Mr Tusk has used his position as a platform to criticise the government. The ruling party warns that he could face several investigations relating to his actions as prime minister and, according to some sources, appears to be promoting semi-detached Civic Platform MEP Jacek Saryusz-Wolski as an alternative Polish candidate for the post.

Given Poland’s isolation from the major EU powers under Law and Justice there is, the opposition argue, a real danger that the country will end up marginalised on the EU’s periphery. They have, therefore, called upon the government to once again locate Poland within European mainstream politics by both complying with the Commission’s ‘rule of law’ recommendations and re-building the country’s previously close links with the Franco-German axis, especially its strategic partnership with Berlin. They also propose re-opening the debate on Polish adoption of the Euro so that Warsaw is at the heart of a Union that, they argue, will inevitably integrate more closely around its Eurozone hard core. Although it has not ruled out Eurozone accession (which most Poles oppose) in principle, Law and Justice argues that, given the single currency’s huge problems, it cannot envisage any point in the foreseeable future when it would be advantageous for Poland to adopt the Euro.

A pivot towards Germany?

In fact, with the imminent loss of its main EU ally and attempts to build closer co-operation with other post-communist states proceeding fairly slowly, some commentators have noted a pivot in Poland’s international relations towards closer co-operation with Berlin. This was exemplified by German Chancellor Angela Merkel’s February visit to Poland and meetings with government and Law and Justice leaders. The visit was billed by some as the most important by a German leader since the collapse of communism in 1989, and hailed by government supporters as both an indication that there are no serious problems with Polish-German relations and important symbol of Poland’s role as a key leader in debates on the EU’s future.

Clearly, relations between the two countries remain strained over a number of issues. For example, Poland has criticised Berlin for failing to oppose the ‘Nord Stream 2’ pipeline that is being built under the Baltic Sea by Russian energy giant Gazprom to send gas directly to Germany. Warsaw argues that this undermines common European energy policies and runs contrary to Mrs Merkel’s attempts to encourage a tough EU stance towards Moscow. Long-standing disagreements have been supplemented by new ones over issues such as the European migration crisis, with Law and Justice opposing attempts, championed by Germany, to relocate migrants from North Africa and the Middle East across all EU states including Poland.

However, although the government’s critics argue that one high profile visit does not represent a political breakthrough, the leaders of the two countries do appear to have put contentious issues that could undermine strategic co-operation on the backburner. Law and Justice believes that, for all their policy differences, a Merkel administration is its preferred partner in Germany. At the same time, the Merkel government appears to have accepted that it will have to deal with Law and Justice at least until the next Polish parliamentary election in autumn 2019. Although Berlin seems to share the Commission’s concerns about Law and Justice’s approach to Poland’s constitutional tribunal crisis, it is also wary of alienating the Polish government at a time when the EU faces an existential crisis.

Migrant rights could limit Warsaw’s room for manoeuvre

In terms of the Brexit negotiations specifically, the Polish government wants the EU to maintain close relations with the UK and is trying to position itself as the leader of those states opposing punitive action against London. The UK is not only an important trading partner for Poland, even more importantly Warsaw wants Britain to remain engaged in the European continent as a military security actor. However, there are a number of issues that could complicate Warsaw’s plans to ensure an amicable separation. One of these is the question of the UK’s contribution to the 2014-20 EU budget. Poland is currently the greatest beneficiary of EU regional funds, which many commentators see as crucial to the country’s economic modernisation. At the same time, given that the UK is one of the largest net contributors to the current EU budget Brexit will almost certainly limit the scale of these fiscal transfers. So the Polish government will need to try and protect this funding, particularly given that this is likely to be last time that Warsaw benefits so substantially from EU aid.

But perhaps the most important complicating issue is the future status of the UK’s Polish community. Although it has led to skill shortages in some sectors of the Polish economy, the ability to be able to travel and work abroad has been one of the main pillars of support for EU membership in Poland. Britain was one of the few states that gave immediate and relatively unrestricted access to its national labour market to workers from the post-communist states which, like Poland, joined the EU in 2004. As a consequence, the UK has been one of the most popular destinations for Poles seeking work in Western Europe with an estimated 800-900,000 Polish migrant workers currently living there. However, the ability to regain control over immigration from EU countries was one of the key reasons why British people voted for Brexit in last June’s referendum.

In fact, the Polish government is keen to lure migrant workers back to their homeland so is likely to accept that there will be restrictions on Poles hoping to access the UK labour market in the future. Rather, it will concentrate on protecting the current status and rights of Polish citizens living in the UK. For its part, the British government has promised to guarantee the status of these Polish (and other EU) citizens as quickly as possible, providing that the rights of British citizens living in other EU countries are also maintained. However, it is not clear what the ‘cut-off’ date will be for who is included in this guarantee, and if it will encompass access to all state benefits. The fate of the Polish community in the UK is of huge domestic political significance as virtually every family in Poland has someone living and working there. So, whatever its aspirations to lead broader debates on the EU’s future, Warsaw has little room for manoeuvre on this issue, making it much trickier for it to play the role of main spokesman for an amicable Brexit settlement.

Can Poland’s opposition recover?

January was a dismal month for Poland’s opposition as it was hit by a series of leadership crises and ended its parliamentary sit-in without extracting any further concessions from the government. Although they retain considerable assets and should not be written off, the government’s opponents will struggle to mount an effective challenge until they recognise that most Poles do not want a return to the status quo ante, and can offer a convincing alternative on the social and economic issues that are their most pressing concerns.

Sit-in without an exit strategy

Last month saw deputies from Poland’s liberal and centrist opposition parties end their month-long sit-in protest in the main plenary chamber of the Sejm, the more powerful lower house of the Polish parliament. The crisis began on the final day of the December 2016 parliamentary sitting when Michał Szczerba – a deputy from the centrist Civic Platform (PO), Poland’s governing party between 2007-15 and currently the main parliamentary opposition grouping – was excluded by Sejm speaker Marek Kuchciński, from the ruling right-wing Law and Justice (PiS) party which has been in office since autumn 2015. Mr Szczerba tried to use a debate on the 2017 budget to raise parliamentary media access reforms proposed by Mr Kuchciński and ignored his instructions to leave the rostrum. A number of Civic Platform deputies then occupied the area around the podium demanding that Mr Szczerba be re-instated. The Sejm session was moved to an ancillary chamber where the budget was passed by deputies from Law and Justice, which holds an outright parliamentary majority, and a handful of opposition members.

Although Mr Kuchciński said that the vote was conducted in line with Sejm regulations, the government’s opponents refused to recognise its legality and anti-Law and Justice protesters rallied outside the parliament building. Sensing that it had little to gain from continuing its conflict with the media, Law and Justice backed down and agreed to keep the current parliamentary access rules in place until new ones could be agreed. Nonetheless, deputies from Civic Platform and the smaller liberal ‘Modern’ (Nowoczesna) party continued their occupation over the Christmas recess, demanding that the key budget vote be re-run.

However, although Civic Platform and ‘Modern’ wrong-footed Law and Justice with their occupation tactic, they missed the opportunity to end the protest on a high note when the proposed media regulations were withdrawn and left themselves without an exit strategy for finishing the sit-in without losing face. While smaller opposition groupings also opposed the new media rules, the anti-establishment Kukiz ‘15, the third largest parliamentary caucus, never supported the sit-in while the agrarian Polish Peasant Party (PSL), Civic Platform’s one-time junior coalition partner, withdrew its backing once Law and Justice shelved its proposals.

Leadership crises

Moreover, the sit-in protest was severely undermined when ‘Modern’ leader Ryszard Petru was photographed on a plane heading to Portugal for a New Year’s Eve holiday with one of his deputies, the recently divorced Joanna Schmidt. Before Mr Petru admitted he was on a private trip another ‘Modern’ deputy leader, Katarzyna Lubnauer, insisted it was a ‘pre-planned’ visit ‘related to party matters’. The fact that Mr Petru and Ms Schmidt broke off from the protest to take a foreign holiday while their party colleagues were involved in an apparently urgent struggle to save Polish democracy was an appalling error of judgement. As well as being the latest in a series of gaffes that have allowed the party’s opponents to portray Mr Petru as an over-promoted political lightweight, it played directly into the government’s narrative that nothing extraordinary was happening and the opposition was playing a cynical game aimed at generating public hysteria.

At the same time, the Committee for the Defence of Democracy (KOD), an anti-Law and Justice civic movement that has provided the main focus for mobilising extra-parliamentary opposition to the government, was also hit by a leadership crisis. The Committee was formed in November 2015 days after Law and Justice took office, with the initial impetus for its protests being controversy over the membership and functioning of Poland’s constitutional tribunal. Government supporters argued that its activities were orchestrated by opposition politicians and vested interests hostile to Law and Justice’s plans to radically reconstruct the Polish state and introduce sweeping socio-economic policy reforms. Nonetheless, the Committee was been able to project itself, both domestically and internationally, as a large, bottom-up movement of ordinary citizens genuinely concerned about the apparent risk to democracy, civic freedoms and the rule of law in Poland.

However, in January documents leaked to the press revealed that more than 120,000 złoties from the Committee’s public collections had been channelled in regular payments to an IT company owned by its leader Mateusz Kijowski, a computer programmer who quickly rose from obscurity to head up the organisation, and his wife. Not only was the Committee’s leadership unaware of these payments, they also appeared to contradict a claim by Mr Kijowski (who had previously come under attack from government supporters for his inability to pay alimony from a previous marriage) that he did not receive any official income from the movement. Mr Kijowski admitted that it was probably imprudent to combine the roles of leader and professional services provider but also called the media reports a ‘provocation’. He rejected a call from the Committee’s management board to resign, insisting that he would be standing in the movement’s March leadership election. In fact, some commentators argued even before the IT contract scandal that, while it retained the capacity to mobilise thousands of people in street demonstrations, the Committee was losing momentum and had little idea of how to reach out to Poles who were not already committed opponents of the government, especially younger people who were notably under-represented on its protests.

Mr Schetyna relatively unscathed

The only opposition figure to emerge relatively unscathed from the parliamentary crisis was Civic Platform leader Grzegorz Schetyna. Mr Schetyna was uneasy about the sit-in, fearing that many Poles did not really understand its purpose and viewed the behaviour of some of its participants as immature and self-indulgent. Indeed, the impetus for the occupation came from mainly younger deputies, who were close to former Civic Platform prime ministers Ewa Kopacz and Donald Tusk (who became EU Council President in December 2014) but were marginalised by Mr Schetyna. Nonetheless, he was obliged to (at least publicly) support the occupation as he did not want to be outflanked by Mr Petru, his bitter rival for the opposition leadership. In fact, following his Portuguese holiday scandal, Mr Petru tried to defuse the crisis: participating in talks aimed at securing a compromise (which he subsequently backed away from) and making it clear that his party’s deputies would not block the Sejm rostrum when parliament returned from its recess. Mr Schetyna used this as an opportunity to present himself as the government’s most uncompromising opponent and boycotted the talks. However, much of this was posturing: Mr Schetyna had already come to the conclusion that, without a convincing narrative as to why the opposition was continuing with the protest, it had become counter-productive. In the event, he ended the sit-in abruptly in mid-January on the second day after parliament resumed.

In fact, when Mr Schetyna took over the Civic Platform leadership following its crushing 2015 election defeat, the party faced a major, possibly even existential, crisis. ‘Modern’, which was elected to the Sejm for the first time in 2015, was able to contrast its ‘newness’ with the more compromised figures associated with Civic Platform, which many Poles saw as representing an out-of-touch and complacent elite disconnected from the concerns of ordinary people and tainted by scandals, and pulled ahead of Mr Schetyna’s party in opinion polls. However, Mr Petru’s party lost its initial momentum while Civic Platform retained a number of important political assets including: a large number of experienced parliamentarians, substantial access to state party funding, a relatively well-developed grassroots organisational network, and a local government base that included control of most of Poland’s large cities and 14 out of 16 regional authorities, which play a key role in distributing EU funds and are a major source of local patronage. In the wake of the parliamentary crisis, the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys found Civic Platform holding steady at 20% compared with a large slump in support for ‘Modern’, down to only 11%; although both opposition groupings were running well behind Law and Justice on 39%.

Nonetheless, although Mr Schetyna is a good organiser and an experienced (and ruthless) political operator, he lacks dynamism and charisma, and does not yet appear to have an effective strategy for re-building Civic Platform’s support. He also leads a deeply divided party with a strong internal opposition, notably from those younger deputies who were clearly dissatisfied that he ended the sit-in protest without securing any further concessions from the government. Indeed, some commentators have floated the possible return of Mr Tusk to national politics either as Civic Platform leader or to head up a united opposition alliance. Mr Tusk’s first two-and-a-half year term as EU Council President expires in May and, although he enjoys widespread backing from European leaders, Law and Justice have indicated that they will not support extending his mandate.

However, while Mr Tusk remains a charismatic and authoritative figure, it is far from clear that most Poles really want him to return to front-line national politics. Having previously been one of his party’s most important electoral assets, Mr Tusk’s popularity slumped during the last parliament. Law and Justice long argued that he personified the shortcomings and pathologies of the Civic Platform government, which it often referred to as the ‘Tusk system’. The ruling party will no doubt try and remind voters of this by, for example, making Mr Tusk appear before a special parliamentary commission that is investigating the 2012 Amber Gold pyramid scheme scandal, as a result of which thousands of Poles lost their savings, questioning him on when he first learned about the company’s problems given that his son was employed by one of its subsidiaries.

No going back

The Polish opposition still retains the support of most of the country’s cultural and business elites, and has strong links with the EU political establishment and much of the Western opinion-forming media which share its dislike of Law and Justice. Although the ruling party shrugs off EU criticisms, international pressure has forced it to devote valuable time and political capital defending its position in the European arena. The political scene is also very polarised: many Poles oppose the government, uneasy about its alleged centralising tendencies, and, given that they live disproportionately in urban areas, can be mobilised relatively easily to take part in street demonstrations. The opposition may need to wait for an opening when the government faces a major crisis, but the next (local) elections take place in autumn 2018 and the key parliamentary poll is not scheduled until 2019, so it still has time to develop an attractive political alternative.

However, it still spends too much time focusing on issues that are too abstract for most Poles, while failing to offer a convincing alternative on pressing social and economic concerns where Law and Justice is more in tune with public opinion. Although critics argue that the government’s social spending plans will place a strain on the public finances, it has introduced reforms, such as its extremely popular ‘500 plus’ child subsidy programme, that benefit the many Poles who feel frustrated not to have shared in the country’s recent economic growth. Law and Justice’s election victory also reflected widespread disillusionment with the country’s ruling elite and a strong prevailing mood that it was time for change. The opposition will struggle to mount an effective challenge until it recognises that most Poles do not simply want a return to the status quo ante.

Is Poland’s constitutional tribunal crisis over?

With one of the judges elected by the current parliament taking over as its new president, and the opposition losing interest in the issue, the political conflict surrounding Poland’s constitutional tribunal is moving into a new phase. Although the European Commission is very unlikely to secure support for EU sanctions against Poland, some tribunal members appointed by previous parliaments could boycott cases involving contested judges elected by the new one.

Contested appointments

The bitter conflict over the membership and functioning of the constitutional tribunal, a powerful body that rules on the constitutionality of Polish laws, has dominated the political scene since the right-wing Law and Justice (PiS) party came to office following its victory in the October 2015 parliamentary election. The most serious constitutional crisis to affect the country since the collapse of communism in 1989 began almost immediately after Law and Justice took office in November. The new government decided to annul the appointment of five judges to the 15-member body by the previous parliament – dominated by the centrist Civic Platform (PO), the former ruling party – who were to replace those whose terms of office expired that month and in December. Earlier these judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda, who questioned the legality of their appointment, did not accept their oaths of office.

However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms expired in December was unconstitutional the other three were nominated legally. The government, in turn, argued that the tribunal did not have the right to make judgments about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges elected by the new parliament instead. Tribunal president Andrzej Rzepliński responded by only allowing those two filling the December vacancies to assume their duties.

Law and Justice tried to break this impasse by amending the constitutional tribunal law to increase the number of judges required to make rulings in the most important cases from nine to thirteen; thereby hoping to oblige Mr Rzepliński to recognise all of those appointed by the new parliament. The so-called ‘repair law’ also increased the threshold for tribunal rulings to a two-thirds majority, making the votes of these new appointees more significant. However, in March 2016 the tribunal decided that it was empowered by the Constitution to ignore these amendments and declared the ‘repair law’ unconstitutional. The government, in turn, said that the tribunal had no power to review the law (as the Constitution stipulates its rules are regulated by parliamentary statute), which had come into effect as soon as it was passed, and refused to publish the judgement in the official journal, a necessary step for tribunal rulings to become legally binding.

Undermining democracy or restoring pluralism?

Most of the opposition and legal establishment argued that the government’s actions violated judicial independence and would paralyse the tribunal. They bundled the issue up with a number of other government measures to accuse Law and Justice of undermining democracy and the rule of law. As a consequence, thousands of Poles participated in demonstrations organised by the Committee for the Defence of Democracy (KOD), an anti-Law and Justice civic movement. The opposition’s narrative was picked up by the EU political establishment and Western opinion-forming media, with whom they enjoyed strong links and many of who shared their dislike of Law and Justice. In January 2016, the European Commission decided to undertake an unprecedented investigation under an EU monitoring mechanism to establish whether the rule of law in Poland was under ‘systemic threat’. Moreover, in March the Venice Commission, an advisory body to the Council of Europe human rights watchdog, issued a critical report which supported the appointment of the three judges elected by the previous parliament and said that the ‘repair law’ was a threat to the rule of law, democracy and human rights.

The government’s supporters, however, robustly denied these allegations and defended its actions as necessary to restore pluralism and balance to state institutions that they said had been expropriated by supporters of the previous governing party. They placed the blame for the constitutional crisis squarely on the Civic Platform-led government which they argued tried to appoint five judges illegally just before the October 2015 election to pack the tribunal with Law and Justice opponents. They pointed out that had these appointments not been challenged all but one of tribunal’s fifteen members would have been elected by Civic Platform-dominated parliaments. More broadly, they said that opposition to the government was being orchestrated by extremely well-entrenched, and often deeply corrupt, post-communist elites and vested interests hostile to its sweeping socio-economic policy reforms and plans to radically reconstruct the Polish state. They also argued that the Commission’s rule of law probe was flawed by lack of objectivity and insufficient knowledge of the Polish Constitution and legal system, and strongly opposed external interference in what they insisted was a domestic political dispute.

The conflict deepens

However, the government also introduced another reform bill which passed through parliament at the end of July 2016. This removed the two-thirds majority threshold and lowered the quorum for tribunal rulings in the most important cases from thirteen to eleven. But it also required the tribunal president to allow the three un-recognised Law and Justice-nominated judges to participate in its work and introduced a new veto mechanism allowing four justices to postpone a case for up to six months.

At its July meeting, the European Commission decided that Warsaw’s efforts did not go far enough and moved to the next stage of the procedure, issuing an official ‘rule of law recommendation’ urging the Polish government to: swear in the judges elected by the previous parliament; publish and fully implement all tribunal rulings; and screen the July law for compliance with the Venice Commission. It gave Poland three months to comply with its recommendations or risk a Commission proposal that the European Council impose sanctions; in the worst-case scenario suspending the country’s voting rights.

Moreover, in August the conflict deepened when the tribunal majority also rejected parts of the July law as unconstitutional, including the provisions that four judges could block a case by up to six months and that the tribunal president should swear in the three contested judges. In response, the government once again claimed that the tribunal had not followed the procedural rules determined by parliament and refused to publish its ruling.

The battle for the presidency

Law and Justice then decided to focus its efforts on trying to ensure that, when his term of office expired in December, Mr Rzepliński would be replaced by one of the judges elected by the current parliament. The tribunal president is chosen by the Polish President from among nominees presented to him by its members and the July law was constructed to ensure that at least one of these would be from among the ‘new’ justices. The tribunal majority tried to circumvent this by stipulating that any nominees would also need to secure a majority of votes before they could go forward to the President. However, the Law and Justice-nominated judges prevented the majority from making any nominations by depriving them of the required quorum of ten. Nonetheless, the ‘old’ judges still hoped that Mr Rzepliński’s close ally tribunal vice-president Stanisław Biernat would assume his responsibilities in the interim.

In December, therefore, three new laws were passed which modified the timing and procedure of the election so that from the day that Mr Rzepliński’s term ended the tribunal would be led by an acting president who was the judge with the longest record of service in all courts and positions in central public administration relating to the application of the law. Given that this was Julia Przyłębska, one of the justices appointed by the current parliament, it was assumed that she would then allow the three contested Law and Justice-nominated judges to take office, bringing the total number of ‘new’ judges to seven. Moreover, in order to avoid the risk of the ‘old’ judges rendering the process invalid, the quorum was suspended for the nomination meeting as long as two candidates were proposed and one secured at least five votes.

Consequently, on the night that Mr Rzepliński’s term of office ended Mr Duda signed the new constitutional tribunal bills into law and appointed Mrs Przyłębska as acting president, who immediately recognised the three disputed judges. A tribunal meeting then nominated two of the ‘new’ judges including Mrs Przyłębska whom Mr Duda confirmed as the new president. Although the ‘old’ judges still argued that any nominees required the support of the tribunal majority, they subsequently accepted her appointment. Not only does Mrs Przyłębska now control the tribunal’s day-to-day functioning, when Mr Biernat’s term of office ends in June a majority of the 15 judges will have been elected by the new parliament; indeed, another one of the ‘old’ judges, Andrzej Wróbel, also announced that he would be standing down, even though his term was set to run until 2020.

No longer a source of conflict?

As its salience has declined the opposition has gradually lost interest in the constitutional tribunal crisis as a source of political contestation. The tribunal’s defenders were vocal and well-organised and many citizens had misgivings about the government’s approach to the issue. However, it was too abstract an issue and did not affect the day-to-day lives of most ordinary Poles who were concerned with socio-economic questions where Law and Justice was more in tune with public opinion than its liberal and centrist opponents. The tribunal also saw a substantial decline in its approval ratings as it was sucked into the political conflict. A December 2016 survey by the CBOS agency found that only 28% of respondents evaluated it positively (down from 42% in March 2015) compared with 42% who viewed it negatively (12% in 2005); 30% did not know (46% in 2015).

For sure, having started the ‘rule of law’ procedure it is difficult for the European Commission to back down without losing face. Indeed, at the end of December it gave Warsaw two months to implement its earlier recommendations and respond to additional concerns that there were no provisions in the Polish Constitution for the appointment of an acting president. It called for the tribunal to review the constitutionality of the new laws and Mr Biernat to replace Mrs Przyłębska until it was clear she had been appointed lawfully. However, although the dispute has forced Law and Justice to devote valuable time and political capital defending its position in the European arena, the Polish government has no intention of bowing to what it considers to be opposition-initiated international pressure. It also questioned the legality of the Commission procedure, saying that it was based on non-treaty practices invented by officials, and could challenge it in the European Court of Justice. The only option that the Commission now has is to propose sanctions under article 7 of the EU treaty but this requires unanimity in the European Council and the Hungarian government, for one, has made it clear that it will veto any such measures.

With the tribunal soon to be dominated by justices elected by the current parliament, the government’s opponents claim that Law and Justice has taken it over illegally and packed it with political appointees. Supporters of the ruling party, on the other hand, argue that without Mr Rzepliński at its head the tribunal should now start to function normally rather than as a tool of the opposition. But this will be difficult if the ‘old’ justices boycott cases involving the three contested judges appointed by the new parliament. The danger is that this could spill over into other parts of the legal system with lower courts not recognising judgments involving the contested judges, and the government then threatening them with disciplinary action. So the constitutional tribunal conflict is not over, it has simply moved into a new phase.

How will Poland’s parliamentary crisis develop?

An occupation of the main legislative chamber and street demonstrations at the end of December, prompted by the exclusion of an opposition deputy following his protest against new parliamentary media rules, precipitated a major political crisis in Poland. Although the right-wing government withdrew its planned media regulations, the sit-in continued throughout Christmas as the opposition refused to recognise the legality of a budget vote. The crisis has reached an impasse and could escalate when the legislature returns in mid-January with the possibility of rival government and opposition parliamentary sittings.

New media rules sparked the crisis

The crisis began when Marek Kuchciński, the speaker of the Sejm (the more powerful lower chamber of the Polish parliament) from the ruling right-wing Law and Justice (PiS) party, which has been in office since autumn 2015, proposed new rules on parliamentary media access. The changes included: limiting the number of reporters with full parliamentary access to two per media outlet; requiring all other journalists to work from a specially designated media centre located away from the main plenary chamber; prohibiting reporters from recording parliamentary proceedings; and only making live broadcasts available to five selected TV news stations.

Up until now, hundreds of journalists were theoretically free to roam all the common areas of parliament without restrictions in search of comments from lawmakers, while multiple TV crews could film the main chamber at will. The system was designed to open politicians up to journalists but the government argued that the chaotic media presence interfered with day-to-day parliamentary proceedings. The new rules, they said, were in line with other Western democracies and would help reporters to organise their work in a more professional manner. However, critics argued that they violated the Polish Constitution which guarantees that ‘a citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions’ which includes ‘entry to sittings of collective organs of public authority formed by universal elections, with the opportunity to make sound and visual recordings’.

Sit-in leads to disputed budget vote

The parliamentary turmoil started on December 16th when Michał Szczerba – a deputy from the centrist Civic Platform (PO), Poland’s ruling party between 2007-15 and currently the main parliamentary opposition grouping – was excluded by Mr Kuchciński when he tried to use a debate on the annual budget to raise the media rules issue by brandishing a card saying ‘Free media in the Sejm’ and ignored the speaker’s instructions to leave the rostrum. A number of Civic Platform deputies then occupied the area around the podium and conducted a sit-in holding up similar signs, demanding that Mr Szczerba be re-instated and blocking work on legislation. Following a recess lasting several hours, the Sejm session was re-convened in an ancillary hall outside the main chamber and deputies from Law and Justice, which holds an outright parliamentary majority, and a handful of opposition members approved the 2017 budget together with a bill reducing the pensions of former communist-era security service functionaries.

However, the opposition refused to recognise the legality of the session and called for Mr Kuchciński to re-run it arguing that, with the votes counted on a show of hands instead of the usual electronic system, it was impossible to confirm that the required quorum of 231 lawmakers were present. They also questioned the fact that amendments were voted en bloc rather than individually, and claimed some opposition deputies were prevented from accessing the hall and not allowed to speak and raise procedural motions. Some journalists, they said, were also denied access and not permitted to record the votes, only observe proceedings via an official camera feed, while other persons who were not deputies may have taken part in the vote.

For his part, Mr Kuchciński denied there was any wrongdoing and said that the vote was conducted in line with Sejm regulations. Plenary sessions have been held in rooms other than the main chamber before, all measures were taken to inform deputies of the change of venue, and any of them could have participated. Voting by show of hands is permitted and, government supporters said, a total of 236 deputies were present. They argued that the media had access to the transmitted proceedings and could anyway have filmed them from the end of the room.

Defending democracy or paralysing parliament?

Nonetheless, thousands of people rallied outside the parliament building in support of the opposition’s claims that Law and Justice had caused a constitutional crisis. Anti-government protesters blocked all the parliamentary exits and police had to clear the streets to allow government ministers and Law and Justice deputies to be escorted out of the building in the middle of the night. Protests in Warsaw and other cities organised by the Committee for the Defence of Democracy (KOD), an anti-Law and Justice civic movement who accused the ruling party of allegedly undemocratic practices, continued over the subsequent weekend.

More broadly, the opposition tried to bundle up the parliamentary crisis with its argument that the sweeping changes introduced by Law and Justice to the country’s legal framework, judiciary, public administration and the media since it came to office have undermined democracy and the rule of law. This narrative has been picked up by both the Western opinion-forming media, with whom the government’s opponents enjoy strong links and many of who share their dislike of Law and Justice, and the EU political establishment. For example, last January the European Commission initiated an unprecedented investigation under an EU monitoring mechanism to establish whether the rule of law in Poland was under ‘systemic threat’ following controversy over the membership and competencies of the country’s constitutional tribunal.

For its part, Law and Justice fiercely rejected such accusations and strongly opposed Commission interference in what it insisted was a domestic political matter. It argued that, far from being spontaneous civic actions, the anti-government protests were pre-planned and the result of Law and Justice’s opponents’ inability to come to terms with the fact that they had lost power. Even if the government had not proposed the new media regulations, nor Mr Szczerba been excluded from parliament, the opposition would, they argued, have found another pretext to cause social unrest. While the protests may have involved many politically non-aligned citizens, Law and Justice argued that they were orchestrated by vested interests hostile to the government’s sweeping socio-economic policy reforms and moves to radically reconstruct the Polish state, many of whose institutions, the party claims, have been expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite. Indeed, some government supporters even accused the opposition of trying to foster disruption and chaos on the streets in order to paralyse parliament so that they could remove Law and Justice from office.

Too abstract for ordinary Poles?

Nonetheless, sensing that it had little to gain from continuing its conflict with an influential group who were the public’s main channel of political information, Law and Justice backed down and agreed to keep the current parliamentary media access rules in place until new ones could be agreed with journalists. However, the fall-out from these events continued as deputies from Civic Platform and the liberal ‘Modern’ (Nowoczesna) party, which has many fewer parliamentarians but is currently running narrowly ahead of the former in the polls, demanded that the key vote on the 2017 budget be repeated and vowed to continue their sit-in protest until at least January 11th when the Christmas recess ends.

The crisis does not, however, appear to have affected patterns of support among Poland’s main parties. As the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys shows, Law and Justice still enjoys a clear lead averaging around 37% support compared with 20% for ‘Modern’, 19% for Civic Platform (PO) and 9% for the anti-establishment Kukiz ‘15, the third largest parliamentary grouping. Arguably, the opposition simply mobilised people who opposed the government anyway around questions that are too abstract for ordinary Poles who are concerned primarily with socio-economic issues where Law and Justice is more in tune with public opinion.

For its part, Law and Justice tried to project the image of a government that is continuing to introduce reforms that benefit the many Poles who feel frustrated not to have shared in the country’s recent economic growth, especially low income households who live beyond the large urban centres. Although critics argue that its reforms have placed a strain on the public finances, the ruling party has delivered on many of the social spending pledges which were the key to its 2015 election victory. In April, for example, the government introduced its extremely popular flagship ‘500 plus’ subsidy programme for the first children of poorer households and every second and subsequent child in all families, which has provided a significant financial boost to many low income families. Only last month, Law and Justice-backed President Andrzej Duda approved a law reversing the Civic Platform government’s deeply unpopular 2012 decision to increase the retirement age to 67 (from 60 for women and 65 for men); although critics argue that the reduced value of pensions for those taking early retirement will discourage many from taking advantage of the new provisions.

Rival parliamentary sittings?

Moreover, although the liberal and centrist opposition wrong-footed Law and Justice with their parliamentary occupation, they arguably missed the opportunity to end the protest on a high note when the proposed media regulations were withdrawn. While smaller parliamentary opposition groupings also opposed the new media rules, Kukiz ’15 never supported the occupation tactic while the agrarian Polish Peasant Party (PSL), Civic Platform’s one-time junior coalition partner, withdrew its backing once Law and Justice shelved its proposals. There were also suggestions that Civic Platform leader Grzegorz Schetyna was uneasy about the sit-in, fearing that many Poles viewed it as self-indulgent. Indeed, a survey conducted by the TNS Polska agency just before Christmas found that only 26% of respondents supported the opposition’s tactics while 47% were against. In fact, the impetus for the occupation came from mainly younger deputies who were close to Mr Schetyna’s predecessor, former prime minister Ewa Kopacz, but who have been marginalised by the new leader. However, Mr Schetyna was obliged to (at least publicly) support the occupation as he did not want to be outflanked by ‘Modern’ leader Ryszard Petru, his bitter rival for the leadership of the Polish opposition.

Attempting to de-escalate the crisis, Law and Justice offered the opposition an ‘outstretched hand’ saying that they were willing to give it more rights and privileges: creating the institution of ‘leader of the opposition’ and allowing it to run every fifth parliamentary sitting. On the other hand, there are no indications that the ruling party will back down in the face of what it argues is blackmail and re-hold the budget vote, concerned this will create a dangerous precedent and encourage the opposition to disrupt parliamentary proceedings as an effective tactic in subsequent disputes. Law and Justice has, therefore, indicated that it is only willing to hold discussions with the opposition on condition that they allow parliament to return to its normal operations.

At the same time, the opposition has boxed itself in and does not appear to have an exit strategy for ending its sit-in protest without losing face. If Law and Justice’s opponents continue to prevent parliament from sitting in January there is a danger that they could be held responsible for any ensuing disruption and instability. However, if they end the protest without extracting any concessions from the government the occupation will be seen as a pointless exercise. The crisis has, therefore, reached an impasse and there is a risk that when the Sejm returns in mid-January it could escalate with a possibility of rival parliamentary sittings: most of the government’s opponents continuing to occupy the main plenary chamber, while the ruling party and other opposition deputies try to conduct normal legislative business in an another venue.