Why does the Polish President’s judicial reform law constitutional referral matter so much?

An amended judicial reform law was supposed to unblock Poland’s EU coronavirus recovery funds and help the right-wing ruling party regain the political initiative ahead of autumn’s crucial parliamentary poll. But a presidential referral for review has put the law’s fate in the hands of a fragmented and deeply divided constitutional tribunal, virtually ending any realistic prospect of Warsaw receiving the funds before the election.

The ongoing coronavirus funds dispute

The Polish government, led by the right-wing Law and Justice (PiS) party, has been in a long-running dispute with the EU political establishment over so-called ‘rule-of-law’ issues since it came to office in autumn 2015, particularly its judicial reforms. The EU institutions agreed with Poland’s legal establishment and most opposition parties that these reforms undermined judicial independence and threatened the constitutional separation of powers. Law and Justice’s supporters, on the other hand, argued that the reforms were justified because, following Poland’s flawed transition to democracy in 1989, the judiciary, like many key institutions, was expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite. It accused the EU institutions of bias and double standards, acting illegitimately beyond their legal competencies, and using the ‘rule-of-law’ issue as a pretext to victimise Law and Justice because the party rejected the Union’s liberal-left consensus on moral-cultural issues.

As part of this dispute, the European Commission blocked the release of Poland’s 35 billion Euros share of the Union’s coronavirus post-pandemic recovery funds until Law and Justice implemented a July 2021 EU Court of Justice ruling that it disband a newly created supreme court disciplinary chamber for judges. Warsaw felt that it had satisfied this condition when, last July, the Polish parliament adopted a law proposed by Law and Justice-backed President Andrzej Duda replacing the disputed body with a new, apparently more impartial, professional responsibility chamber. However, the Commission said that did not go far enough in meeting its rule-of-law ‘milestones’ for un-freezing the funds, while Warsaw accused Brussels of moving the goalposts.

One of the main points of contention was that the Commission insisted that Polish judges should have the right to challenge their colleagues’ status or decisions without being subject to disciplinary action. The key issue at stake here was whether they could be disciplined for questioning the legitimacy of judges appointed by the newly constituted national judicial council (KRS), an important body that oversees the appointment and supervision of the Polish judiciary. The council was overhauled by Law and Justice so that elected politicians rather than the legal profession had the decisive influence in choosing its members, and the government’s critics argued that this meant it was under too much political influence. Law and Justice, on the other hand, argued that making judges and their supervisory organs more accountable to elected bodies was both justified, because the Polish judicial elite had operated as a ‘state within a state’ incapable of reforming itself, and in line with practices in other established Western democracies.

Although Law and Justice originally pledged not to engage in further negotiations with the Commission, last September it changed tack and indicated a willingness to be more flexible. The party’s leadership became increasingly nervous that if Poland failed to secure the recovery funds the country’s economic situation and credibility with the financial markets would worsen, public investment plans dry up and higher interest rates for government debt make state borrowing even more costly. It was also concerned that the dispute was creating uncertainty about the fate of the much larger 76.5 billion Euros of cohesion funding due to Poland from the 2021-2027 EU budget. Moreover, in spite of Law and Justice’s attempts to portray its domestic political opponents as working in collusion with Brussels on this issue, most Poles appeared to blame the governing camp rather than the Commission or opposition for the potential loss of EU funds. Law and Justice was particularly concerned that the freezing of these funds would become one of the opposition’s main attack lines in the upcoming autumn parliamentary election.

Mr Duda’s bombshell

As a consequence, last December the government announced a compromise agreement with the Commission which, Law and Justice hoped, would unblock the recovery funds if the Polish parliament approved a law further amending the judicial reforms. A key provision was transferring the disciplinary procedure for judges from the professional responsibility chamber, which the Commission still considered too politicised, to Poland’s supreme administrative court (NSA), a separate entity from the supreme court viewed as more independent because its staffing and functioning had not yet been questioned by any EU bodies. While opposition parties and some Polish legal experts argued that such a move was unconstitutional, the government was adamant about its legality.

Moreover, in a much more significant retreat for Law and Justice, the legislation also extended the scope of the so-called ‘test of judicial independence and impartiality’ of judges. This was a new procedure established by Mr Duda’s supreme court amendment law giving affected parties the ability to request that a court examine objections to a particular judge in their case, but which did not guarantee other judges the right to challenge the status of their colleagues. The new legislation would allow for the test to be initiated by the court itself, as well as ending disciplinary procedures against judges for formally questioning their colleagues’ status.

Last month, the Polish parliament passed the new law and, at one point, the recovery funds appeared to be within the government’s grasp. However, Law and Justice’s plan received a major, unexpected setback when Mr Duda referred the legislation to the constitutional tribunal for so-called ‘preventive control’; which means that it will not come into force until the tribunal rules on its constitutionality. Mr Duda had previously voiced misgivings about several aspects of the new legislation even before it was submitted to parliament. He was particularly concerned about the proposed changes to the system for testing judicial independence and impartiality which, by potentially questioning the legality of the President’s appointments, challenged his constitutional prerogative to nominate judges. Nonetheless, Law and Justice was hoping, and most commentators expecting, that Mr Duda would either simply approve the legislation or allow it to come into force while referring the clauses about which he had misgivings for constitutional review.

A fragmented and conflicted tribunal

Government critics argue that the tribunal is under the influence of Law and Justice which, they say, has turned it into a tool for rubber-stamping controversial government laws; something which the ruling party’s supporters deny or argue that its politicisiation predates the current administration. However, in recent weeks the tribunal has found itself embroiled in an internal dispute between supporters and opponents of its current president, Julia Przyłębska. At least six tribunal members argue that Mrs Przyłębska’s term of office as president expired last December and so the tribunal cannot review the judicial reform law until a successor is appointed. Mrs Przyłębska denies this and has received support from the government, arguing that she remains in office until 2024 when her term as a tribunal member ends, as the law specifying a six-year presidential term came into effect after her appointment.

But whereas other disputes within Poland’s judiciary have generally been between ‘new’ judges appointed since Law and Justice introduced its reforms and ‘old’ ones nominated under previous governments, the six justices calling for Mrs Przyłębska to leave are all post-2015 nominees. They are considered to be close to justice minister Zbigniew Ziobro who introduced many of the government’s most controversial reforms and leads the right-wing conservative ‘Solidaristic Poland’ (SP) party, Law and Justice’s junior coalition partner which voted against the amended judicial reform law in parliament. The problem is that at least eleven out of the tribunal’s fifteen members must be present for a quorum to make a judgement on this issue, so it is highly uncertain when it will be able to review the law. In other words, the constitutionality of one of the most important laws in the current parliament will be determined by a fragmented and conflicted body in the midst of a deep internal crisis.

In fact, the Polish opposition and legal establishment do not recognise the constitutional tribunal as a lawfully established body in its current form: arguing that three of its members were not appointed properly, and questioning the legal validity of Mrs Przyłębska’s original election as president in December 2016 (again, Law and Justice vigorously denies this). Moreover, last month the situation was further complicated when the Commission also expressed serious doubts about the tribunal’s independence and impartiality, and launched further EU Court proceedings charging it with undermining the Union’s legal order. These charges date back to two tribunal rulings issued in July and October 2021 that found parts of the EU treaties to be incompatible with – and, therefore, legally subordinate to – the Polish Constitution. However, even if Brussels chooses to treat this issue separately from the judicial disciplinary system dispute, the EU Court could still ‘freeze’ the tribunal as an interim measure. The Commission could then use this as a pretext to argue that the ‘milestones’ have not been fulfilled and further delay recovery fund payments even if the tribunal rules that the judicial reform law is constitutional.

A litmus test of government effectiveness

Securing the recovery funds has thus become a major litmus test of the Polish government’s broader effectiveness and could play a critical role in determining the election outcome. For sure, even if the legislation implementing the deal had been signed into law, the first tranche of payments were unlikely to have come on tap until the third or even fourth quarter of the year. Nonetheless, neutralising the ‘rule-of-law’ conflict with the EU political establishment and securing the release of these funds would have been a major political success for Law and Justice: under-cutting one of the most important opposition talking points and re-assuring potential investors and the financial markets, thereby stabilising the Polish currency, and further reducing inflation and the cost of government borrowing. This, in turn, would have provided Law and Justice with some fiscal headroom to boost social spending, and thereby shore up its support, in the election run-up. According to the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys, Law and Justice still has the highest vote share, averaging 36% support. Although this only translates into 207 (out of 460) seats in the Sejm, the more powerful lower chamber of parliament, the party would just need a small uptick to get to the 40% average required to have a chance of securing another outright majority.

Law and Justice’s best case scenario is now that: the conflicted tribunal members resolve their differences; the judicial reform law is reviewed quickly, emerges unscathed and is approved by the President; and then Brussels accepts that Poland has met the rule-of-law ‘milestones’. However, even a fast-tracked constitutional review is likely to take at least a couple of months, which would mean the law coming into force in late May or June, and then another 3-4 months would elapse before Poland actually received any payments. Procedural wrangling could drag the process out for months, and the government’s agreement with Brussels might unravel if the tribunal questions the law’s provisions, especially those relating to the judicial impartiality test.

For sure, the election may end up being determined by other issues and some commentators and politicians argue that the government has over-stated the funds’ significance. Moreover, the EU political establishment may be so determined to stop Law and Justice securing re-election that, even if the new law is approved, it could find another pretext to block the funds’ release. Nonetheless, by more-or-less ending any realistic prospects of them reaching Poland before the election, Mr Duda’s actions have undermined a key element of Law and Justice’s electoral strategy, and the opposition can once-again argue that the blame for any delay lies squarely with the governing camp.

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Can Poland’s right-wing ruling party win this year’s parliamentary election?

If Poland’s upcoming election were held today, the right-wing ruling party would almost certainly lose its parliamentary majority. But with several factors working in its favour, the governing party only needs a relatively small uptick in support to be within striking distance of a record third consecutive term of office.

On the back foot

This year, Polish politics will be dominated by the forthcoming parliamentary election, scheduled for the autumn. The right-wing Law and Justice (PiS) grouping, Poland’s governing party since 2015, has been on the back foot for most of the last three-and-a-half years. Its initial slump in support was due in large part to a backlash against the hugely controversial October 2020 ruling by Poland’s constitutional tribunal that further tightened Poland’s already restrictive abortion law by invalidating a provision that allowed termination of pregnancy in cases where the foetus was seriously malformed or suffered from an incurable disorder. Given that the vast majority of legal abortions carried out in Poland were in such cases, the ruling effectively meant a near-total ban.

Although Law and Justice said that the ruling was a sovereign decision by an independent body and clearly in line with the tribunal’s earlier judgements on the issue in the mid-1990s (when it was dominated by justices who later became harsh critics of the current administration), the government’s opponents argued that it was under the ruling party’s control. The judgement set off a nationwide wave of street protests, particularly involving younger Poles, and played into the opposition’s narrative that Law and Justice was increasingly dominated by ‘religious right’ ideological extremists. Although it is a socially conservative party that draws inspiration from Catholic moral teaching, Law and Justice’s electorate includes many Poles with more liberal views on moral-cultural issues who support the party largely as a result of its socio-economic policies.

The ruling came at the same time as Law and Justice proposed an animal protection law that many Polish farmers, who constituted a key element of its rural-agricultural core electorate, felt threatened their livelihoods. It also coincided with a sense that the government was not coping effectively with the second wave of the coronavirus pandemic; earlier in the year, ministers had re-assured Poles that the crisis was fully under control. Consequently, opinion poll support for Law and Justice fell sharply from around 40% in September to the low-to-mid 30s by November.

Law and Justice attempted to regain the political initiative last winter through its ‘Polish Deal’ (Polski Ład) programme designed to boost economic growth and living standards through a wide range of policies including tax reforms favouring the less well-off. However, the programme’s complexity and disastrous roll-out in January 2022 left even financial experts struggling to understand it. In February 2022, the Russian invasion of Ukraine gave Law and Justice an opportunity to draw a line under the ‘Polish Deal’ fiasco. But the ‘rally effect’ of the war – the inevitable psychological tendency for worried citizens to unite around their political leaders and institutions as the embodiment of national unity when they feel that their country faces an external threat – did not transform the party’s poll ratings. Although the war moved national security to the top of the political agenda, it did not really emerge as an issue of contestation between the parties who competed largely on which of them was the most effective at countering Russia and providing support for Ukraine.

An accumulation of crises

However, together with the economic fall-out from the pandemic crisis, the war exerted considerable extra pressure on the government through its impact on much more politically salient socio-economic issues. Inflation increased steadily from the beginning of 2022, particularly the price of food and household goods, peaking at 17.9% last October, its highest level for more than 25 years. Cost of living increases also eroded the value of the huge welfare payments that were the key to Law and Justice’s appeal to those voters who were not part of its core electorate but supported it as the political grouping offering the most generous support to the less well-off. Sanctions against Russia and disruption of supply chains also led to substantial fuel price increases and concerns about energy security. At the same time, interest rate rises exacerbated the economic slowdown, while fiscal tightening and the increased cost of government borrowing limited Law and Justice’s scope for further social spending.

Moreover, Law and Justice remained in a bitter ‘rule-of-law’ dispute with the EU political establishment over its judicial reform programme and the European Commission blocked the disbursement of Poland’s 35 billion Euros share of the Union’s coronavirus recovery funds. At the same time, ongoing internal divisions and infighting, notably between the more technocratic and pragmatic prime minister Mateusz Morawiecki and justice minister Zbigniew Ziobro, weakened the governing camp. Mr Ziobro is leader of the right-wing conservative ‘Solidaristic Poland’ (SP) party, Law and Justice’s junior governing partner which has enough deputies to deprive the government of its parliamentary majority. Mr Ziobro, who has introduced many of the government’s most controversial policies including the judicial reforms, staked out a series of hardline right-wing conservative policy positions and criticised Mr Morawiecki for being excessively compromising and ideologically timid, specifically for making too many concessions to the EU political establishment.

While no single crisis was a political game changer, their cumulative effect was to erode support for the ruling party which struggled to win back the 5-10% of the electorate that it lost at the end of 2020. Indeed, no opinion poll for months has given Law and Justice hope of winning enough seats to retain its outright parliamentary majority. For example, according to the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys while Law and Justice still has the highest vote share, averaging 36% support, this only translates into 203 (out of 460) seats in the Sejm, the more powerful lower chamber of parliament. Currently Law and Justice’s only plausible possible coalition partner is the radical right ‘Confederation’ (Konfederacja) grouping, ‘Pooling the Poles’ has it averaging 7% and winning 25 Sejm seats, which would still leave the ruling party short of a parliamentary majority. Moreover, the Confederation’s strategic objective is to replace Law and Justice as the main political force on the Polish right not to keep it in office.

Everything still to play for

However, Law and Justice’s support has not collapsed and it would only need a small uptick to get it back to the 40% average that the party needs to have a chance of securing another outright majority and record third term of office for the post-communist era. Indeed, even if Law and Justice falls slightly short, there is a reasonable chance that it could win over some individual defectors from other political groupings. In one sense, it is striking that, in spite of such huge problems, Law and Justice has been able to maintain relatively high levels of support and get through the winter with none of these crises reaching a critical stage. Inflation appears to have more-or-less peaked (for the moment at least) and, although energy costs remain high, there were no winter fuel shortages as initially feared. Unemployment remains low so many Poles feel they can at least partially offset inflation with pay increases, and although growth will slow down considerably this year the Polish economy is very unlikely go into actual recession.

Law and Justice knows that whether or not the government can unblock Poland’s share of the coronavirus recovery funds will be a critical litmus test of its broader effectiveness. But if the legislation implementing a deal which the government agreed with the Commission last December is approved by parliament and signed into law, and the recovery funds released, this would be a major political success for Law and Justice. For sure, even in a best-case scenario the first tranche of recovery fund monies are unlikely to come on tap until the third or even fourth quarter of the year. Nonetheless, not only would their unblocking under-cut one of the opposition’s most important talking points, it could also re-assure potential investors and the financial markets, thereby stabilising the Polish currency, and further reducing inflation and the cost of government borrowing. This would, in turn, provide Law and Justice with some fiscal headroom to boost social spending, and thereby shore up its support, in the election run-up.

Moreover, the Polish government’s active engagement as one of the main hubs for channeling military and humanitarian aid to Ukraine, and prime destination for refugees fleeing the conflict, have boosted the country’s international standing. Law and Justice is ramping up Polish defence spending, already one of the highest levels in NATO, to 4% of GDP and doubling the number of troops to 300,000, making Poland pivotal to the Alliance’s security relationship with Russia. So if, depending upon the course of the war, military security becomes more of an election issue, Law and Justice could benefit from a further ‘rally effect’, which could then spill over into other policy areas.

Law and Justice is also helped by the relative weakness of the opposition. Bitter divisions over how to respond to the legislation modifying Law and Justice’s judicial reforms that emerged from the government’s negotiations with the Commission, further divided an opposition already fragmented between four liberal, centrist, left-wing and agrarian parties. Former European Council President and Polish prime minister Donald Tusk – who leads the liberal-centrist Civic Platform (PO), Poland’s governing party between 2007-15 and currently the main opposition grouping – is certainly a very articulate and effective critic of Law and Justice and his blistering critiques have rallied the core anti-government electorate. According to ‘Pooling the Poles’, Civic Platform is currently averaging around 30% support. But Mr Tusk is also one of Poland’s most distrusted politicians and a very polarising figure with loyal devotees but also fierce opponents, so may actually end up mobilising Law and Justice supporters. Crucially, the opposition has not yet convinced voters that it has a credible and attractive programmatic alternative, particularly on the socio-economic issues that are likely to be the main battleground on which the election will be fought. The very negative anti-Law and Justice messaging on which the opposition appears to have based its electoral strategy is unlikely, on its own, to have sufficient mobilising appeal.

Indeed, Polish public opinion is highly polarised and there is little evidence of any significant transfers between the government and opposition camps. Rather, it seems that the fall in support for Law and Justice was largely accounted for by the de-mobilisation of some of its erstwhile supporters, particularly those attracted to the party by its social and economic policies rather than for ideological reasons. Many of these voters are now planning to abstain rather than switch to the opposition, which obviously it easier for Law and Justice to win them back.

The election outcome remains uncertain

Law and Justice’s base of support has been eroded as it faced continued economic turbulence, a protracted war on its border, a resulting energy crisis, an ongoing dispute over EU funds, and infighting within the governing camp. Opinion polls suggest, that if an election were held today, it would almost certainly lose its parliamentary majority and the opposition parties could cobble together a government, albeit a rather shaky one. But the election will be held in ten months’ time, not today. The winter crises have not spiraled out of control, inflation is slowing down, unemployment remains low, and while the economy is weakening it is unlikely to go into recession. The possible unblocking of EU coronavirus funds would provide fiscal headroom for further social spending, the ongoing war in Ukraine could create a further ‘rally effect’ around the incumbent, and the opposition remains unable to win over disillusioned ex-Law and Justice voters. With all these factors potentially working in Law and Justice’s favour, the election outcome is likely to remain uncertain right up until polling day.

Why are the political stakes so high in Poland’s EU funding row?

While securing EU coronavirus recovery funds has become a critical litmus test for Poland’s right-wing government, it will be very tricky for it to pass the compromise deal agreed with Brussels that is required to release them. But if the funds start to flow to Poland in the spring this will be a huge opportunity for the ruling party to regain the political initiative ahead of the autumn election.

Freezing the post-pandemic funds

The Polish government, led by the right-wing Law and Justice (PiS) party, has been in a long-running dispute with the EU political establishment over so-called ‘rule-of-law’ issues since it came to office in autumn 2015, particularly over its judicial reforms. The EU institutions agreed with Poland’s legal establishment and most opposition parties that these reforms undermined judicial independence and threatened the key democratic principle of the constitutional separation of powers. Law and Justice’s supporters, on the other hand, argued that the reforms were justified because, following Poland’s flawed transition to democracy in 1989, the judiciary, like many key institutions, was expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite. It accused the EU institutions of bias and double standards, acting illegitimately beyond their legal competencies, and using the ‘rule-of-law’ issue as a pretext to victimise Law and Justice because the party rejected the Union’s liberal-left consensus on moral-cultural issues.

As part of this dispute, the European Commission blocked the release of Poland’s 35 billion Euros share of the Union’s coronavirus post-pandemic recovery funds until Law and Justice implemented a July 2021 EU Court ruling that it disband a newly created supreme court disciplinary chamber for judges. Warsaw felt that it had satisfied this condition when, last July, the Polish parliament adopted a law proposed by Law and Justice-backed President Andrzej Duda replacing the disputed body with a new, apparently more impartial, professional responsibility chamber. However, the Commission argued that closing down the disciplinary chamber was not in itself sufficient to fully meet its rule-of-law ‘milestones’ for un-freezing the funds. All of this led to a significant escalation in the conflict between the EU political establishment and Law and Justice government, as Warsaw accused Brussels of moving the goalposts and pledged not to engage in any further negotiations with the Commission on this issue.

One of the main points of contention was that the Commission insisted that Polish judges should have the right to challenge their colleagues’ status or decisions without being subject to disciplinary action. The key issue at stake here was whether they could be disciplined for questioning the legitimacy of judges appointed by the newly constituted national judicial council (KRS), an important body that oversees the appointment and supervision of the judiciary in Poland, whom the government’s opponents referred to disparagingly as ‘neo-judges’ (neo-sędziowie). The council was overhauled by Law and Justice so that elected politicians rather than the legal profession had the decisive influence in choosing its members, and the government’s critics argued that this meant it was under too much political influence. Law and Justice, on the other hand, argued that making judges and their supervisory organs more accountable to elected bodies was both justified, because the Polish judicial elite had operated as a ‘state within a state’ incapable of reforming itself, and in line with practices in other established Western democracies.

Further concessions secure a compromise

However, in a further shift, in September Law and Justice indicated a willingness to be more flexible with Brussels. The party’s leadership became increasingly nervous that, if Poland failed to secure the billions from the recovery funds, then the country’s economic situation and credibility with the financial markets would worsen, public investment plans dry up and higher interest rates for government debt make state borrowing even more costly. It was also concerned that the dispute was creating uncertainty about the fate of the much larger 76.5 billion Euros of cohesion funding that Poland is expecting from the 2021-2027 EU budget, the loss of which could be politically catastrophic for Law and Justice. Moreover, in spite of the ruling party’s attempts to portray its domestic political opponents as working in collusion with Brussels on this issue, most Poles appeared to blame the governing camp rather than the Commission or opposition for the potential loss of EU funds. Law and Justice was particularly concerned that the freezing of the coronavirus funds would become one of the opposition’s main attack lines in the upcoming parliamentary election scheduled for autumn 2023.

As a consequence, last month the government announced that a compromise had been agreed with the Commission, which would unblock the recovery funds if the Polish parliament approved a new supreme court law further amending the judicial reforms. A key provision of the proposed legislation was transferring the disciplinary procedure for judges from the professional responsibility chamber, which the Commission still considered too politicised, to Poland supreme administrative court (NSA), a separate entity from the supreme court. Although a quarter of its members were also so-called ‘neo-judges’, the administrative court was viewed as more independent because its staffing and functioning had not yet been questioned by any EU bodies. Although opposition parties and some Polish legal experts argued that such a move was unconstitutional, the government was adamant about its legality.

Moreover, in a much more significant retreat for Law and Justice, the legislation also extended the scope of the so-called ‘test of judicial independence and impartiality’ of judges. This was a new procedure established by Mr Duda’s supreme court amendment law giving affected parties the ability to request that a court examine objections to a particular judge in their case, but which did not guarantee other judges the right to challenge the status of their colleagues. The new legislation would allow for the test to be initiated by the court itself and not just by the affected parties, as well as ending disciplinary procedures against judges for formally questioning their colleagues’ status.

Indeed, at one point the recovery fund monies appeared to be within the government’s grasp as it quickly tabled a draft supreme court law which it hoped would receive parliamentary approval before the Christmas break. For sure, Law and Justice knew that it would have difficulty in securing support from its junior governing partner: the right-wing conservative ‘Solidaristic Poland’ (SP) party led by justice minister and vocal Eurosceptic hardliner Zbigniew Ziobro, who has introduced many of the government’s most controversial reforms. Mr Ziobro and his allies – who have enough deputies to deprive the ruling party of its wafer-thin majority in the Sejm, the more powerful lower chamber of the Polish parliament – said explicitly that they would oppose further concessions to Brussels which, they argued, would lead to anarchy within the Polish legal system by allowing any judge to challenge their colleagues’ status with impunity. However, Law and Justice hoped to get around this by securing enough support from opposition parties to pass the draft legislation. It expected the opposition to use its majority in the Senate, Poland’s second chamber, to pass amendments hostile to the government’s judicial reforms, but was banking on Mr Ziobro’s party voting these down when the law returned to the Sejm, and then the government’s original bill being passed unamended thanks, once again, to opposition support.

Mr Duda torpedoes the deal

In fact, the draft supreme court amendment law survived barely 48 hours before it was unexpectedly torpedoed by Mr Duda and suddenly withdrawn from the parliamentary agenda. In spite of the government’s earlier assurances, the President complained that he had not been consulted about the contents of the draft. Mr Duda was particularly concerned about the proposed changes to the system for testing judicial independence and impartiality which, by potentially questioning the legality of the President’s appointments, challenged his constitutional prerogative to nominate judges. Mr Duda feels a strong sense of responsibility towards the judges that he nominated and indicated that he was prepared to block any legislation that undermined their status; a three-fifths parliamentary majority is required to over-turn his veto. Indeed, even the opposition knows that, if it wins the next election, it will have a major headache about what to do with the thousands of ‘neo-judges’ and what the legal status of their countless court rulings will be.

So Mr Duda is now the key domestic political actor that Law and Justice has to square-off in order to move forward with this issue. The ruling party is trying to re-assure him by, for example, arguing that there are other constitutional protections that prevent the impartiality test from being abused, and that it requires a majority of the trial bench, not just an individual judge, for the process to be initiated. Although Mr Duda has encouraged parliament to begin work on the draft, given that extending the impartiality test is one of the Commission’s core demands the government’s room for manouvre to make concessions to him on this issue is extremely limited. Such amendments could easily be used by the opposition as a pretext to vote down the law, or elements within the Commission hostile to compromise with Law and Justice to scupper the deal.

However, if Law and Justice can reach an agreement with Mr Duda that does not unravel its deal with the Commission (and assuming Mr Ziobro’s party remains opposed), then it is the opposition that will play the decisive role in determining the draft law’s parliamentary fate. Clearly, Law and Justice’s opponents have no interest in making life easier for the government on this issue. Indeed, their strategy for the upcoming election was predicated on the notion that Warsaw would fail to reach an agreement with the Commission, with a key element of its electoral appeal being the claim that only a change of government would un-block the coronavirus funds. Ideally, the opposition would like to stymie Law and Justice’s plans but in a way that they cannot be held directly responsible for Poland failing to secure the EU monies. In practice, however, it will be extremely difficult for them to be seen voting down a compromise deal that the Commission has itself has approved, and thereby blocking Poland’s access to EU funds and providing Law and Justice with a formidable attack line ahead of the election.

A litmus test of government effectiveness

The fact that Law and Justice has been prepared to retreat on this issue shows how important it is for the party to neutralise the ‘rule-of-law’ conflict with the EU political establishment and secure these funds. Facing ongoing economic turbulence, a protracted war on its border and resulting energy crisis, and with a critical parliamentary election due in the autumn, the ruling party knows that whether or not the government is able to secure these funds will be a critical litmus test of its broader effectiveness. But it will be very tricky for Law and Justice to break the impasse over the supreme court law, and the window of opportunity to enact the deal is only likely to last for a few more weeks.

However, if government’s deal with Brussels is approved and the first tranche of recovery fund monies starts to flow to Poland in the spring this would be a major political success for the ruling party. It would vindicate its ‘twin-track’ strategy of attempting to de-couple disagreements with the EU political establishment over issues such as ‘rule-of-law’ compliance from attempts to develop closer economic ties and normal pragmatic working relations between Warsaw and the Union’s institutions on bread-and-butter policy issues such as the disbursement and management of EU funds. If these funds can help to calm Poland’s economic turbulence and increase the government’s room for manouvre on public spending – while, at the same time, ‘Solidaristic Poland’ remains within the governing camp, so it retains its parliamentary majority – this will provide Law and Justice with a huge opportunity to regain the political initiative ahead of the autumn election.

Will the Polish governing camp split over the EU funding issue?

Divisions within the ruling coalition mean that, without opposition support, Poland’s right-wing government may not be able to pass the legislation required to secure the country’s access to EU coronavirus recovery funds. But the junior governing party leaving, or being forced out of, the government would mean a minority administration unable to govern effectively for almost a year leading up to next autumn’s parliamentary election.

Freezing the coronavirus recovery fund

The EU funding issue has once again moved to the top of the Polish political agenda. Poland’s government, led by the right-wing Law and Justice (PiS) party, has been in a long-running dispute with the EU political establishment over so-called ‘rule-of-law’ issues since it came to office in autumn 2015, particularly over its judicial reforms. The EU institutions agreed with Poland’s legal establishment and most opposition parties that these reforms undermined judicial independence and threatened the key democratic principle of the constitutional separation of powers. Law and Justice’s supporters, on the other hand, argued that the reforms were justified because, following Poland’s flawed transition to democracy in 1989, the judiciary, like many key institutions, was expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite. It accused the EU institutions of bias and double standards, acting illegitimately beyond their legal competencies, and using the ‘rule-of-law’ issue as a pretext to victimise Law and Justice because the party rejected the Union’s liberal-left consensus on moral-cultural issues which it felt undermined Poland’s traditional values and national identity.

As part of this dispute, the European Commission delayed approval of Poland’s national recovery plan (KPO), an operational programme necessary for the country’s 35 billion Euros share of the EU’s coronavirus post-pandemic recovery funds to be released, until Law and Justice implemented a July 2021 EU Court ruling that it disband a newly created supreme court disciplinary chamber for judges. Warsaw felt that it had satisfied these concerns after the Commission finally approved the plan in June and, in July, the Polish parliament adopted a law proposed by Law and Justice-backed President Andrzej Duda replacing the disputed body with a new, apparently more impartial, professional responsibility chamber. However, this has not led to the expected breakthrough and since then Commission officials have made it clear that, in their view, closing down the disciplinary chamber was not in itself sufficient to fully satisfy all the conditions set out in the recovery plan’s rule-of-law ‘milestones’ for un-freezing the EU post-pandemic funds.

Contesting the status of judges

All of this led to a significant escalation in the conflict between the EU political establishment and Law and Justice government during the summer as Warsaw pledged to take a hard line and not to engage in any further dialogue with, nor make more concessions to, the Commission on this issue. Law and Justice leaders insisted that Poland had shown maximum goodwill upholding its side of the bargain by enacting legislation that met the Commission’s demands. They accused Brussels of moving the goalposts and introducing conditions that were impossible to implement, arguing that its actions were politically motivated and aimed at boosting support for their Polish opposition allies ahead of the upcoming parliamentary election scheduled for autumn 2023. Indeed, some commentators argued that the ‘milestones’ may have been formulated in a deliberately vague way to provide the Commission with considerable room for manouevre to interpret whether or not they had been implemented.

One of the main points of contention was that the Commission said that Poland had to automatically re-instate the judges who were previously suspended by the supreme court disciplinary chamber. The government’s supporters argued that the ‘milestones’ stipulated that the judges affected by disciplinary chamber rulings should simply have their cases reviewed and not be re-instated automatically; and that the supreme court amendment law envisaged precisely such a swift review by the new professional responsibility chamber. The press release setting out the ‘milestones’ in Poland’s recovery plan also stated that ‘judges cannot be subject to disciplinary liability for submitting a request for a preliminary ruling to the (EU) Court of Justice, for the content of their judicial decisions, or for verifying whether another court is independent, impartial, and established by law’. On the basis of this, the Commission insisted that Polish judges should have the right to challenge their colleagues’ status or decisions without being subject to disciplinary action.

The key issue at stake here is really whether Polish judges can be disciplined for questioning the status and legitimacy of their colleagues appointed by the newly constituted national judicial council (KRS), an important body that oversees the appointment and supervision of the judiciary in Poland. The council was re-constituted by Law and Justice so that elected politicians rather than the legal profession now have the decisive influence in determining its composition, and the government’s critics argue that this means it is under too much political influence. Law and Justice, on the other hand, argues that making judges and their supervisory organs more accountable to elected bodies is both justified, because the Polish judicial elite has operated as a ‘state within a state’ incapable of reforming itself, and in line with practices in other established Western democracies. Law and Justice also says that allowing every judge to freely challenge their colleagues’ status and rulings with impunity would lead to total anarchy within the Polish legal system.

Warsaw seeks a compromise

However, in a further shift of position, during the last few weeks Law and Justice has adopted a much more conciliatory tone and indicated a willingness to be more flexible with, and possibly even concede further ground to, Brussels in the hope of reaching an agreement that will unblock the recovery fund monies. The Law and Justice leadership appears to be getting increasingly nervous that if Poland fails to secure the billions from the post-pandemic funds then the country’s economic situation will worsen, with public investment plans drying up and higher interest rates for government debt making state borrowing even more costly. Moreover, in spite of Law and Justice’s attempts, as one of its main political attack lines, to portray its opponents as submissive to, and working in collusion with, Brussels to undermine Poland’s sovereignty and independence, a November poll conducted by the IBRiS agency for the ‘Rzeczpospolita’ newspaper found that 64% of respondents blamed the government and ruling parties for the potential loss of EU funds compared with only 17% who cited the Commission and 12% the opposition. The freezing of the coronavirus recovery funds has thus become one of the opposition’s main talking points and Law and Justice is concerned that it could play a major role in the upcoming election campaign.

As a consequence, Law and Justice prime minister Mateusz Morawiecki, a leading figure in the governing camp’s ‘technocratic-modernising’ wing that favours a more conciliatory approach with the EU political establishment, appears to have convinced party leader Jarosław Kaczyński to greenlight a partial re-set of Warsaw’s relations with the Commission and for Poland to seek to negotiate a possible compromise deal. Although he does not hold any formal state positions, Mr Kaczyński exercises a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities. One possibility would be to clarify, or even extend, the so-called ‘test of independence and impartiality’, a new procedure established by Mr Duda’s supreme court amendment law. This gives defendants the ability to request that a court examine objections to a particular judge in their case but does not guarantee other judges the right to challenge their colleagues. Another option would be to amend the so-called ‘gagging law’ (ustawa kagańcowa) passed in 2019, which justice ministry disciplinary officers are using to act against judges who question their colleagues’ status.

No majority for new legislation?

However, the balance of power within the ruling coalition means that, without seeking support from the opposition, Law and Justice may not have a parliamentary majority to pass any legislative changes that may be required to satisfy the Commission. The problem here is that Law and Justice’s junior governing partner – the right-wing conservative ‘Solidaristic Poland’ (SP) party led by justice minister and vocal Eurosceptic hardliner Zbigniew Ziobro, who has introduced many of the government’s most controversial reforms – has enough parliamentary deputies to deprive the ruling party of its majority.

Mr Ziobro and his allies argue that the EU political establishment is behaving dis-honourably and should not be negotiated with. They have declared explicitly that they will oppose any further concessions to Brussels which, they argue, will lead to chaos within the Polish justice system. Indeed, ‘Solidaristic Poland’ is calling upon the government to follow through on its earlier, very tough rhetoric and start vetoing areas of EU decision-making that require unanimity in the European Council (such as taxation and foreign affairs). The government argues that its leverage here is limited as there are currently no measures on the Council agenda where it could exercise such a veto, except for those that relate to support measures for Ukraine which Poland favours.

The situation is further complicated by the fact that the opposition parties have tabled a parliamentary motion of no-confidence to dismiss Mr Ziobro. The justice minister has already survived several of these but this time the situation is more complicated for the governing camp because right-wing anti-establishment rock star-turned-politician Paweł Kukiz and his two allies in the ‘Kukiz’15’ caucus, who normally support the government, have announced that they will not vote for Mr Ziobro. They accuse him of dragging his feet in implementing a proposal to establish local magistrates, one of their flagship policies. On the other hand, since the last attempted no-confidence vote Law and Justice has gained the support of the three members of the small Polish Affairs (PS) parliamentary caucus which, with the backing of pro-government independents, should ensure that the no-confidence motion is voted down as long as the rest of the governing camp can maintain voting discipline.

A minority government?

Given the level of EU funds involved, the political stakes here are very high and create important political-strategic dilemmas for Law and Justice. Indeed, all of this has revived speculation that, if Mr Ziobro and his supporters block a further agreement with the Commission, Law and Justice could try and come to some kind of understanding with sections of the opposition, notably the agrarian-centrist Polish Peasant Party (PSL), to pass further judicial reform legislation that would satisfy Brussels. Indeed, although Law and Justice has formally ruled out having any such plans, there is even some talk that Mr Ziobro and his allies might leave, or be thrown out of, the government thus paving the way for the formation of a minority administration.

However, the opposition has no interest in making life easier for the government and the most likely scenario is that they will try and stymie Law and Justice’s plans but in a way that they cannot be held directly responsible for Poland failing to secure the coronavirus recovery funds. Moreover, although Polish experience suggests that it is possible for a party to govern for a considerable period of time as a minority administration (to replace a government an opposition has to secure the passage of a so-called ‘constructive vote of no-confidence’ in favour of a specific alternative prime ministerial candidate), Law and Justice knows how debilitating it will be if it finds itself simply being in office administering but unable to govern effectively. Such a scenario might be more appealing if the Law and Justice government was in a solely campaigning, rather than governing, mode during the last couple of months leading up to an election. But with the government facing a series of national and international crises, and nearly a year of the current parliament left to run, such a prospect appears very unattractive – and, therefore, extremely unlikely unless the governing camp’s internal conflicts escalate such an extent that it starts to implode.

What are the prospects for Poland’s prime minister Mateusz Morawiecki?

Barring a political earthquake, Poland’s right-wing prime minister is unlikely to be dismissed before next spring as there is no obvious alternative and replacing him could de-stabilise the governing coalition. Nonetheless, his political future hangs in the balance, and whether he leads the government into next autumn’s parliamentary election depends on how he copes with the huge economic and energy security challenges facing the country this winter.

Re-assuring business elites and Brussels

Recent months have seen speculation that the right-wing Law and Justice (PiS) grouping, Poland’s governing party since autumn 2015, may replace prime minister Mateusz Morawiecki. When he took over from incumbent Beata Szydło at the end of 2017 it was felt that Mr Morawiecki would, as a respected former international banker, re-assure business elites concerned about Law and Justice’s costly re-distributive social welfare programmes and commitment to state intervention in what it considered to be key strategic sectors of the economy.

In addition to his apparent economic moderation and competence, it was also hoped that Mr Morawiecki’s supposed greater credibility in diplomatic circles would help to improve Poland’s international standing, and specifically ‘re-set’ Law and Justice’s problematic relations with the EU political establishment. From the outset, the Law and Justice government has found itself in conflict with the European Commission over so-called ‘rule-of-law’ issues, especially its controversial judicial reforms. Mr Morawiecki tried to de-couple this dispute from Warsaw’s ability to develop pragmatic working relations with the EU institutions and major European powers.

Following Law and Justice’s re-election in autumn 2019, Mr Morawiecki emerged as a key figure in the governing camp’s ‘modernising-technocratic’ wing. This has at times been very critical of Poland’s post-1989 establishment but also believes that Law and Justice has to find more effective ways to reach out to better-off, well-educated voters in urban areas by focusing on socio-economic transformation rather than ideological issues. Mr Morawiecki originally appeared to enjoy the backing of Law and Justice leader Jarosław Kaczyński who, although he does not currently hold any formal state positions, exercises a powerful behind-the-scenes influence in determining the governing camp’s programmatic and strategic priorities. Mr Kaczyński seemed to believe that, in order to make progress with its radical state reconstruction project, Law and Justice had to win public support by demonstrating its competence in socio-economic policy and international relations, and that Mr Morawiecki was best placed to achieve this. Indeed, at one point there was even speculation that he was considering Mr Morawiecki as a possible successor as party leader.

Under-delivery and domestic problems

However, because of his background as a wealthy technocrat, Mr Morawiecki was always seen as something of an outsider in a party whose electoral base was concentrated among less well-off voters in rural and small-town Poland. For sure, Mr Morawiecki attempted to develop a more demotic style to appeal to Law and Justice’s core electorate, but he was not entirely convincing in this new persona and never really won over the hearts-and-minds of the party faithful. Moreover, rather than reaching out to new political constituencies, Law and Justice’s base of support actually became more consolidated in its electoral heartlands.

Mr Morawiecki’s greater familiarity with diplomatic niceties certainly enabled him to develop better contacts with Western politicians than his predecessor. In December 2020, Mr Morawiecki strengthened his reputation as an effective negotiator and dealmaker when he concluded the 2021-27 EU budget round with Poland once again set to be the largest net recipient of regional funds. However, he was unable to end the ongoing ‘rule-of-law’ dispute, as a consequence of which the Commission is continuing to withhold Poland’s 35 billion Euro share of the EU’s post-pandemic coronavirus recovery funds. Brussels argues that the Polish government has not fully complied with its ‘milestones’ for amending Law and Justice’s contested judicial reforms; Warsaw vigorously denies this and says that the Commission is exceeding its powers.

Indeed, there are now also concerns over whether Warsaw will receive payments from the 75 billion Euros that it is expecting in the new round of EU regional funds. Mr Morawiecki’s Eurosceptic critics within the governing camp argue that, during the EU budget negotiations, he made a critical error in agreeing to the principle of linking payment of EU funds to ‘rule-of-law’ conditionality. His defenders argue that Poland only agreed to conditionality applying in cases where a direct and specific causal link could be established between breaches of rules and negative consequences for the EU’s financial interests.

At the same time, domestically Mr Morawiecki’s government is having to grapple with an economic slowdown, high energy prices, potential winter fuel shortages, surging inflation (now nearly 18%) and falling living standards. As a consequence, after a brief rebound following Russia’s invasion of Ukraine in February, since the summer opinion polls have shown support for Law and Justice declining. According to the ‘Pooling the Poles’ micro-blog, which aggregates voting intention surveys, although Law and Justice remains Poland’s largest party averaging 35% support, this is well short of the 40% that would allow it to secure an outright parliamentary majority. An October survey for the CBOS polling agency also found that only 26% of respondents declared themselves supporters of Mr Morawiecki’s government while 47% were opposed, its worst rating since the party came to office.

Mr Morawiecki’s rivals emboldened

Mr Morawiecki’s problem is that he lacks a power base in the governing camp’s factional politics and has significant government rivals who have become increasingly active and emboldened as they felt his position becoming weaker. One of his most significant opponents has been justice minister Zbigniew Ziobro who leads the right-wing ‘Solidaristic Poland’ (SP) grouping, Law and Justice’s junior governing partner, and has introduced many of the government’s most controversial policies, notably its judicial reforms. Mr Ziobro represents what might be termed the ‘traditionalist-revolutionary’ faction within the governing camp that remains committed to pushing ahead with radical state re-construction and promoting a conservative vision of national identity and traditional values. However, divisions within the governing camp also run through Law and Justice itself, some of whose ‘old guard’ are in many ways ideologically closer to Mr Ziobro and have always been wary of Mr Morawiecki’s ambitions.

Within the government, during the summer opposition to Mr Morawiecki coalesced around deputy prime minister and state assets minister Jacek Sasin who led a plot to have him replaced. Relations between the two politicians have been tense since Mr Sasin felt that Mr Mazowiecki tried to blame him for an abortive and costly attempt to organise a postal ballot for the May 2020 presidential election following the introduction of coronavirus pandemic restrictions. Recently, they became embroiled in a bitter dispute over questions of competency and personnel decisions following the outbreak of the energy crisis arising from the war in Ukraine. Mr Morawiecki’s critics also suggested that, at a time of economic crisis, the government needed a less technocratic and more ‘caring’ figurehead, and floated Elżbieta Witek – the speaker of the Sejm, Poland’s more powerful lower parliamentary chamber – as a possible replacement.

At the same time, Mr Kaczyński has started to become somewhat disillusioned with the prime minister. Earlier this year, Mr Morawiecki was the politician most associated with the government’s flagship ‘Polish Deal’ (Polski Ład) socio-economic reform programme, which he promoted as a political game-changer that would take Law and Justice through to victory at the next parliamentary election, scheduled for autumn 2023. However, Mr Morawiecki’s reputation for economic competence suffered a major blow as the confusing rollout of the tax reforms that comprised a key element of the programme turned into a public relations disaster for the government. Moreover, given that one of the key reasons for Mr Morawiecki’s initial appointment was his apparent ability to reach agreement with the EU elites, Mr Kaczyński was particularly disappointed that the Commission was continuing to block the release of Poland’s share of the coronavirus recovery funds.

Mr Morawiecki survives, but loses key allies

However, last month talk of replacing Mr Morawiecki subsided, not least because Mr Kaczyński realised that ongoing criticisms of the prime minister were damaging the governing camp as a whole and removing him could be very problematic. Changing the prime minister requires a parliamentary vote of confidence in his proposed replacement which could be extremely de-stabilising for Law and Justice if every component of the governing camp started to introduce new conditions for their support.

Moreover, Mr Morawiecki’s opponents lacked any credible alternatives, both in policy terms (many of the governing camp’s internal conflicts are about securing influence within the Polish state rather than substantive political differences) and an obvious replacement for him. There was speculation at one point that Mr Morawiecki could be replaced by deputy prime minister and defence minister Mariusz Błaszczak, a very solid if rather colourless favourite of Mr Kaczynski’s, or Mrs Szydło, now a member of the European Parliament who remains a favourite with the party grassroots. Perhaps not surprisingly, neither of them currently appears interested in the job. There may be a certain political marketing logic to replacing Mr Morawiecki with a potentially more empathetic figure such as Mrs Witek. However, although his reputation for administrative competence has taken a considerable knock in recent months, Mr Morawiecki retains an edge over other Law and Justice leaders in terms of his understanding of the workings of the economy, which is seen as a key quality required to get the government through the challenges of the next few months.

Nonetheless, the price that Mr Morawiecki had to pay for remaining in post was the dismissal of some of his closest collaborators. At the end of September, Michał Dworczyk resigned after five years as head of the prime ministers’ chancellery. Although he cited personal reasons, for months the Polish media has been publishing Mr Dworczyk’s private email correspondence revealing embarrassing details of the governing camp’s behind-the-scenes operations (Law and Justice disputed its authenticity and argued that the hackers had Russian connections). He was replaced by former Sejm speaker Marek Kuchciński, one of Mr Kaczynski’s most trusted political allies who will no doubt act as the Law and Justice leader’s ‘eyes and ears’ in the prime minister’s office. This was quickly followed by the dismissal of European affairs minister Konrad Szymański, another politician felt to be part of Mr Morawiecki’s entourage and who many of the prime minister’s critics hold responsible for the failure of the government’s negotiations with Brussels over EU funding. The departure of these two ministers was widely interpreted as a significant weakening of Mr Morawiecki’s authority and grip on the levers of power.

Next spring is crunch time

Mr Kaczyński also appears to have left open the possibility of replacing Mr Morawiecki at some point ahead of the parliamentary election. The obvious time for a change of prime minister would be next spring so, barring a political earthquake, Mr Morawiecki is unlikely to face another serious challenge until then. Beyond that, his fate really depends on how the government deals with the huge economic and energy security challenges that it faces during the next few months. If Mr Morawiecki can take credit for getting the government through this difficult period without major energy supply shortages, Poles feel that their living standards have not declined too dramatically, and a pathway opens up for Law and Justice to retain power at the next election, then he is likely to survive.

If, on the other hand, living standards continue to fall and the energy security situation deteriorates, his days could be numbered. Even then, a change of prime minister would be politically risky, as it would mean Law and Justice admitting to having made mistakes and still require securing a parliamentary vote of confidence in his successor. But it would also offer an opportunity to draw a line under the past, with Mr Morawiecki taking the blame for the government’s various failings and his successor portrayed as representing a new political opening in the run-up to the autumn election.

Why has the Polish government raised the German war reparations issue?

Poland’s right-wing ruling party is using the war reparations issue to undermine Germany’s moral narrative that it has come to terms with its Nazi past, and attack the liberal-centrist opposition for allegedly colluding with foreign powers to undermine the Polish government ahead of next year’s parliamentary election. The opposition appears to have defused the issue for now by offering the government critical support, but it could still provide an effective means of mobilising the ruling party’s core electorate.

Poland’s moral and legal case

On September 1st, the eighty-third anniversary of Nazi Germany’s 1939 invasion of Poland, the Polish government, led since 2015 by the right-wing Law and Justice (PiS) party, officially launched a campaign to seek war reparations from Berlin for the devastation caused by the country’s 1939-45 occupation. The announcement was accompanied by the publication of a report completed in 2019 and prepared by experts for a Law and Justice parliamentary commission which presented detailed analysis supporting the Polish claim from a political and legal, as well as moral and historical, perspective. The report calculated that the war losses suffered by Poland as a result of the occupation amounted to a colossal 6.2 trillion złoties (as of 2021), three times Germany’s annual state budget. Poland as a state never received significant financial compensation for the destruction caused by Germany; only individuals, such as victims of forced slave labour and pseudo-medical experiments in concentration camps, were awarded small symbolic sums by Polish-German foundations.

However, despite Poland’s renewed efforts Germany responded by reiterating its long-standing position that the issue of reparations had been settled conclusively in 1953. The then-communist Polish government renounced its claim in exchange for East Germany accepting Warsaw’s takeover of former German territories. Germany argues that, until now, no Polish government has raised the issue, even after the collapse of communism in 1989. Law and Justice rejects this interpretation arguing that reparations are still due. Supporters of the Polish case argue that: the two countries never concluded any legally binding bilateral peace treaty or liquidation agreement on the effects of the Second World War; the 1953 renunciation was never officially ratified nor even published; and, as it was part of the Soviet bloc, communist Poland did not have international sovereignty at that time. At the beginning of October, Warsaw issued an official ‘diplomatic note’ to Berlin formally making its claim for compensation.

Undermining Germany’s moral narrative

However, while Law and Justice certainly hopes that Poland will receive reparations at some point there is broad agreement that Germany is extremely unlikely to agree to its demands, not least because of the precedent-setting consequences. Any campaign for financial compensation is only likely to bear fruit in the very long-term, if at all. So what is Law and Justice hoping to achieve by raising the issue at this time? In the foreign policy sphere, the party wants to undermine the German government’s moral narrative that it has fully come to terms with, and settled accounts for, its Nazi past. By ensuring that other countries understand the full scale of the tragedy wrought upon Poland during the Second World War, for which Germany has never undertaken a proper financial reckoning, the Polish government hopes to undermine Berlin’s claim to be an international ‘moral superpower’.

Law and Justice also hopes that, by putting Germany under pressure on this question, it can create its own moral narrative that could be used to strengthen Poland’s bargaining position in the international diplomatic arena on various other issues, notably in its ongoing ‘rule-of-law’ dispute with the EU political establishment. The European Commission has blocked 35 billion Euros of payments due to Warsaw from the EU’s coronavirus recovery fund. Law and Justice argues the EU political establishment is, in effect, synonymous with Germany which, it says, sees a strong and assertive Poland as an obstacle to its project of turning the Union into a federal bloc under its dominance.

Law and Justice believes that this is an opportune moment to raise the reparations issue because Germany and the other main EU powers have lost a great deal of political and diplomatic authority through their perceived weak response to the Russian invasion of Ukraine. Law and Justice has long criticised Germany for disregarding the interests of the former communist states of central and Eastern Europe through its over-conciliatory approach to Moscow, over-reliance on Russian energy (exemplified by the controversial ‘Nord Stream’ gas pipeline, which runs directly from Russia to Germany across the bed of the Baltic Sea by-passing Poland and Ukraine), and, following the outbreak of the war, slowness in providing Ukraine with military aid. Poland, on the other hand, has, for a long time, warned about Russian President Vladimir Putin’s expansionist designs on the region. Indeed, Warsaw has been one of Ukraine’s staunchest allies, at the forefront of efforts to persuade the Western international community to develop a common, robust response to the Russian invasion and ensure that sanctions are maintained and extended.

Is the opposition colluding with foreign powers?

In terms of domestic politics, raising the German war reparations issue was expected to help Law and Justice regain the political initiative by putting pressure on its political opponents – especially the liberal-centrist Civic Platform (PO), Poland’s ruling party between 2007-15 and currently the main opposition grouping, led by former prime minister Donald Tusk. Although Law and Justice is still ahead in most opinion polls its edge over Civic Platform has narrowed in recent months. According to the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys, Law and Justice is currently averaging 35% support compared with 29% for Civic Platform. Moving the war reparations issue up the political agenda puts the government’s opponents in a difficult position because it resonates strongly with the Polish public. The opposition either has to back a Law and Justice administration, that it despises and harshly criticises at every turn, on this issue, or distance itself from the government’s restitution claims and risk being accused of kowtowing to Berlin and failing to defend the Polish national interest. Indeed, Law and Justice argues that Mr Tusk personifies the opposition’s pro-Berlin orientation and has, on numerous occasions, drawn attention to his strong ties to the German political establishment. Polish state TV, which is strongly supportive of the ruling party, frequently shows clips of Mr Tusk saying ‘Für Deutschland’ (‘For Germany’).

These two elements come together in one of Law and Justice’s main attack lines against the opposition: that it is colluding with Berlin and Brussels who are undermining Poland’s sovereignty and independence by interfering in the country’s domestic politics. The withholding of coronavirus funds by an allegedly German-dominated EU political establishment is thereby portrayed as being part of a politically motivated effort to help its opposition allies oust Law and Justice in the upcoming parliamentary election, scheduled for autumn 2023, and ensure the installation of a more co-operative pro-Berlin government. Germany is an easier target for Law and Justice than the EU in general because it evokes less instinctive sympathy among Poles. While Poles support their country’s continued EU membership overwhelmingly, a September survey conducted by the Ipsos polling agency for the liberal-left OKO.press portal found that 47% of respondents agreed that Germany was using the Union to subordinate Poland (49% disagreed). According to a February survey for the Institute of Public Affairs (ISP) think tank, since 2020 the number of Poles who evaluated Polish-German relations positively had fallen from 72% to 48% while those who viewed them negatively increased from 14% to 35%.

Has Civic Platform defused the issue?

All of this explains why the opposition, especially Civic Platform, reacted so nervously to the government’s moves and found it difficult to develop a clear line on the issue. Initially, Civic Platform simply argued that the government’s demands were not really about war reparations at all but part of a concerted anti-German campaign to shore up support for Law and Justice ahead of next year’s election. The fact that Law and Justice had waited more than three years to publish the parliamentary commission report and raise the issue with Germany in a significant way, in spite of the fact that it had been talking about war reparations since it came to office in 2015, showed, they said, that the government was instrumentalising the memory of Polish war victims as a political manouvre. It was an effort to distract the public from its other problems, such as: the economic slowdown, high energy prices and potential winter fuel shortages, and mounting criticisms of the government’s handling of surging inflation (now more than 17%). The opposition also warned that raising the issue in this way threatened to further undermine Poland’s relationship with Germany in the midst of the worst international crisis since the fall of communism in 1989. Indeed, one Civic Platform politician, ex-party leader Grzegorz Schetyna, actually appeared to echo the German narrative when he said that the question of war reparations was ‘closed’.

However, realising the risks of appearing insensitive to the traumatic history of Polish-German relations – and concerned that, by rubbishing the call for reparations, it had fallen into Law and Justice’s trap – Civic Platform very quickly undertook something of a course correction, particularly as polling showed that most Poles supported the government’s approach. For example, a survey conducted by the IBRiS agency for the ‘Rzeczpospolita’ newspaper found that, by a margin of 51% to 42%, respondents agreed that Poland had the right to seek financial compensation from Germany. As a consequence – while still accusing Law and Justice of raising the issue primarily for electoral purposes, and criticising the ruling party for not having a schedule of diplomatic activities to take it forward – Civic Platform began to stress that it felt that the government’s call for reparations was justified. In the event, virtually all of the party’s deputies voted in favour of a parliamentary resolution supporting the government’s efforts. Indeed, Civic Platform even tried to outflank Law and Justice by saying that the government should also pursue financial compensation from Russia as the successor to the Soviet Union which invaded Poland along with Nazi Germany in 1939 (the ruling party responded that linking these two issues risked diluting the more clear-cut case for German reparations).  

Mobilising Law and Justice’s core electorate

By announcing its intention to seek war reparations, Law and Justice looks set to make Polish-German relations central to its bid for re-election next year. One of its main lines of attack is that the opposition is colluding with Berlin and the EU political establishment to undermine the Polish government ahead of the forthcoming parliamentary poll. However, Civic Platform’s pivot on this issue has under-cut Law and Justice’s electoral strategy and defused German war reparations as a question of domestic political contestation sharply dividing the Polish political scene.

In fact, although the issue is likely to return to the political agenda with greater or lesser intensity between now and the election, it was never going to be a dominant one or a political game-changer. While most Poles may agree with Law and Justice’s stance on war reparations, they care more about, and their voting preferences are likely to be determined by, issues such as rising prices, falling living standards, and possible energy shortages. Nonetheless, some commentators argue that Law and Justice has lost ground in opinion polls mainly because its supporters are demoralised and, if an election were held today, rather than switching to other parties they would simply not turnout to vote. So the ruling party is likely to continue raising the reparations issue because, apart from continually setting a trap for the opposition to portray themselves up as the defenders of German interests, it is a highly emotive one and seen by Law and Justice primarily as an effective way of solidifying and mobilising its own, currently rather demotivated, electoral base.

Is Poland’s right-wing ruling party becoming more Eurosceptic?

Poland’s right-wing ruling party has accused the EU political establishment of breaking its agreement with Warsaw following suggestions that the country may not receive its share of the Union’s post-pandemic recovery funds. Although, given Poles’ increasingly instrumental approach towards EU membership, failing to secure access to these monies could be extremely damaging for the ruling party, Brussels’ actions may backfire if it is felt to be interfering in national politics to boost its opposition allies’ chances in the upcoming election.

A turning point in Law and Justice’s EU strategy?

Last month, in what some commentators interpreted as a turning point in the Polish government’s EU strategy, the right-wing Law and Justice (PiS) grouping, the country’s ruling party since autumn 2015, appeared to significantly ramp up its criticisms of the Union’s political establishment. In an interview with the conservative ‘Sieci’ magazine, Law and Justice leader Jarosław Kaczyński – who, although he does not hold any formal state positions, exercises a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities – accused the European Commission of ‘not fulfilling its obligations with regard to Poland’ and trying to create ‘total chaos in the Polish state’.

These remarks were prompted by Commission President Ursula von der Leyen’s July interview with the ‘Dziennik Gazeta Prawna’ newspaper, and similar statements by other EU officials, suggesting that Poland may not receive its 35 billion Euros share of the Union’s coronavirus post-pandemic recovery fund because the country had not fully complied with its conditions, or ‘milestones’, for amending Law and Justice’s contested judicial reforms. Mr Kaczyński accused the Commission of failing to honour its agreement with Warsaw, and warned that if Law and Justice wins the next parliamentary election, scheduled for autumn 2023, relations with the EU would have to be re-arranged.

This was followed by a series of statements by other Law and Justice politicians who said that, if the Commission continued to withhold the funds, Warsaw could ‘turn its cannons’ onto Brussels. Although the Polish government’s leverage here is limited, and it has not said what precise actions it is considering, possible options include: taking legal action against the Commission before the EU’s Court of Justice; building a coalition to dismiss the current college of Commissioners; vetoing areas of EU decision-making that require unanimity in the European Council (such as taxation and foreign affairs); and, while Mr Kaczyński ruled out totally suspending Poland’s membership fees, lowering the country’s EU contributions by, for example, the portion resulting from the repayment of obligations incurred for the recovery fund (although such a move would obviously risk retaliatory action).

Satisfying the Commission’s ‘milestones’?

The Law and Justice government has been in a long-running dispute with the EU political establishment over so-called ‘rule-of-law’ issues since it came to office, particularly over its judicial reforms. The EU institutions agreed with Poland’s legal establishment and most opposition parties that these reforms undermined judicial independence and threatened the key democratic principle of the constitutional separation of powers. Law and Justice’s supporters, on the other hand, argued that the reforms were justified because, following Poland’s flawed transition to democracy in 1989, the judiciary, like many key institutions, was expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite. It accused the EU political establishment of bias and double standards, and using the ‘rule-of-law’ issue as a pretext to victimise Law and Justice because the party rejected the EU’s liberal-left consensus on moral-cultural issues which it felt undermined Poland’s traditional values and national identity.

Initially, the Commission delayed approval of Poland’s national recovery plan (KPO), an operational programme necessary for its coronavirus funds to be released, until Law and Justice implemented a July 2021 EU Court ruling that it disband a newly created supreme court disciplinary chamber for judges. Warsaw felt that it had satisfied these concerns after the Commission finally approved the plan in June and, in July, the Polish parliament adopted a law proposed by Law and Justice-backed President Andrzej Duda replacing the disputed body with a new, apparently more impartial, professional responsibility chamber. At the same time, the imperative to maintain European unity and solidarity in the face of Russian aggression in Ukraine put the EU political establishment under pressure to de-escalate the ‘rule-of-law’ conflict with Law and Justice, particularly given Poland’s pivotal role as one of the main hubs for channeling military and humanitarian aid and prime destination for receiving refugees fleeing the conflict. As a consequence, the Polish government expected to receive the first payments at the end of the year or in early 2023.

However, since then, although no official assessment has been made (because Poland has still to make a formal payment request), Commission officials have suggested that Warsaw may not have satisfied the conditions set out in the recovery plan’s ‘rule-of-law milestones’ for un-freezing the funds. The Polish government insists that it has upheld its side of the bargain, hence the recent vigorous attacks on Brussels by Law and Justice leaders, and that it will not concede any further ground in the dispute. Some commentators argue that the ‘milestones’ may have been formulated in a deliberately vague way to provide the Commission with considerable room for manouevre to interpret whether or not they have been implemented.

For example, the Commission says that Poland has to automatically re-instate the judges who were previously suspended by the supreme court disciplinary chamber. The government’s supporters argue that the ‘milestones’ stipulate that the judges affected by disciplinary chamber rulings should simply have their cases reviewed and not be re-instated automatically; and that the supreme court amendment law envisages precisely such a swift review by the new professional responsibility chamber. The press release setting out the ‘milestones’ in Poland’s recovery plan also stated that ‘judges cannot be subject to disciplinary liability for submitting a request for a preliminary ruling to the (EU) Court of Justice, for the content of their judicial decisions, or for verifying whether another court is independent, impartial, and established by law’. On the basis of this, the Commission is insisting that Polish judges should have the right to challenge their colleagues’ status or decisions without being subject to disciplinary action. Although the supreme court amendment law provides for a so-called ‘test of independence and impartiality’, with defendants having the ability to request that a court examine objections to a particular judge in their case, it does not guarantee other judges the right to challenge their colleagues.

The key issue at stake here is whether Polish judges can be disciplined for questioning the status of colleagues appointed by the newly constituted national judicial council (KRS), an important body that oversees the appointment and supervision of the judiciary in Poland. The council was re-constituted by Law and Justice so that elected politicians rather than the legal profession now have the decisive influence in determining its composition, and the government’s critics argue that this means it is under too much political influence. Law and Justice, on the other hand, argues that making judges and their supervisory organs more accountable to elected bodies is both justified, because the Polish judicial elite has operated as a ‘state within a state’ incapable of reforming itself, and in line with practices in other established Western democracies. Law and Justice also says that allowing every judge to challenge their colleagues’ status and rulings with impunity would lead to anarchy within the Polish legal system.

Is ’Polexit’ an option?

The opposition has seized upon the latest remarks by Mr Kaczyński and other Law and Justice leaders to argue, as it has on numerous occasions over the last few years, that the party is preparing the ground for Polish withdrawal from the EU, so-called ‘Polexit’. Given that, on the face of it, Poles support their country’s EU membership overwhelmingly – a June 2022 survey by the CBOS agency, for example, found 92% in favour and only 5% against – ‘Polexit’ is a politically suicidal slogan for any mainstream Polish party to be associated with. Not surprisingly, Law and Justice vigorously denies that it has any such plans.

In fact, although Law and Justice is often labelled Eurosceptic, up until now the dominant view within the party has been that Poland should remain an EU member and try to reform it from within into a looser confederation of economically co-operating sovereign states. It has tried to build alternative power blocs to the ‘European mainstream’ by positioning Poland as a regional leader and forging closer ties with the post-communist states of central and Eastern Europe, who currently feel that the dominant Franco-German axis has lost moral and political capital through its weak response to the war in Ukraine. Law and Justice has also attempted to de-couple disagreements with the EU political establishment over issues such as ‘rule-of-law’ compliance from attempts to develop closer economic ties and normal pragmatic working relations on bread-and-butter policy issues.

Nonetheless, there has been a noticeable change of tone in the debate about EU strategy within the ruling camp and not just among politicians linked to ‘Solidaristic Poland’ (SP), Law and Justice’s smaller and more Eurosceptic governing partner, but also increasingly more mainstream Law and Justice politicians frustrated with Brussels continuing to block Polish access to the recovery funds. At the same time, a number of Polish right-wing intellectuals have been arguing that the cultural liberal-left consensus is so powerfully entrenched within the EU political establishment that it will continue to weaponise issues such as ‘rule-of-law’ compliance to undermine traditionalist conservative groupings such as Law and Justice, and have begun to countenance ‘Polexit’ as a realistic option if the Union’s current trajectory cannot be changed.

Will the Commission’s actions backfire?

Some commentators argue that Polish public support for the EU is broad but also rather shallow. Poles initially viewed EU accession in rather abstract and romantic terms as a historical-civilisational choice to re-unite with the West and the culmination of the post-communist democratisation process. Many now see membership much more in terms of a cost-benefit analysis driven increasingly by the tangible material benefits that it is felt to deliver. The fact that Poland is currently the largest recipient of EU funds sustains high levels of public support, but this could shift in the Union’s disfavour, possibly quite rapidly, if, say, the country became a net budget contributor.

Given this increasingly instrumental approach towards EU membership, one might assume that not securing the coronavirus recovery funds would be extremely damaging for Law and Justice, especially as it had previously hailed this as a major government negotiating success. The party has made maintaining Poland’s high level of fiscal transfers one of its main EU policy goals and ran a very high-profile advertising campaign promoting the fact that it had secured them as part of the Union’s 2021-27 budget round. This makes it all-the-more difficult for Law and Justice to now shift the narrative and downplay the significance of the recovery funds, arguing that Poland could live without them.

For sure, opinion polls suggest that most Poles blame the government for the impasse and want it to make further concessions to Brussels. However, there is also a growing public perception that the Commission’s actions are politically motivated and that the EU political establishment is using the ‘rule-of-law’ dispute to help its opposition allies oust Law and Justice at the upcoming election. Portraying its opponents as submissive to, and working in collusion with, Berlin and Brussels to undermine Poland’s sovereignty and independence is likely to develop as one of Law and Justice’s main attack lines over the next few months. Indeed, even some commentators who have been very critical of Law and Justice and its approach to judicial reform and EU relations have warned that, if the Union institutions are felt to be interfering in Polish domestic politics, thereby undermining confidence in their political neutrality, the Commission’s actions could actually end up boosting support for the ruling party and fueling Euroscepticism.

Will Poland’s opposition contest the next election as a single bloc?

Although opposition parties know that contesting the next election as separate lists favours the right-wing incumbent, a single united bloc remains extremely unlikely given their diverse electorates and because it would mean accepting the largest grouping’s hegemony. Most have adopted a wait-and-see approach, and final decisions about the configuration of opposition lists may not to be taken until next spring.

Four main opposition parties

In recent weeks there has been a vigorous debate as to whether Poland’s opposition should contest the next parliamentary election, scheduled for autumn 2023, as a single joint list. In addition to the radical right ‘Confederation’ (Konfederacja), the opposition currently comprises four main parties. The most popular of these is the liberal-centrist Civic Platform (PO), which was Poland’s main governing party between 2007-15. Civic Platform’s leader is former European Council President Donald Tusk who was prime minister between 2007-14 and took over the party leadership after returning to front-line Polish politics last summer. According to the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys, Civic Platform is currently averaging 29% support compared with 36% for the right-wing Law and Justice (PiS), Poland’s ruling party since autumn 2015.

‘Poland 2050’ (Polska 2050), a new liberal-centrist party formed by TV presenter-turned-politician Szymon Hołownia after his strong third place in the summer 2020 presidential election, is currently running third with 11% support. Averaging 10% is the ‘Left’ (Lewica), which comprises the ‘New Left’ (Nowa Lewica) party – formed last year following a merger of the communist successor Democratic Left Alliance (SLD), Poland’s governing party between 1993-97 and 2001-5, and liberal-left ‘Spring’ (Wiosna) led by sexual minorities campaigner Robert Biedroń – and the radical left ‘Together’ (Razem) grouping.

Finally, the agrarian-centrist Polish Peasant Party (PSL), which is the organisational successor to a communist satellite grouping but has attempted to legitimate itself by claiming roots in the pre-communist agrarian movement which dates back to the nineteenth century. Although the Peasant Party was in coalition with the Democratic Left Alliance in the mid-1990s and early 2000s, it was also Civic Platform’s junior governing partner. It contested the most recent autumn 2019 parliamentary election at the head of the centre-right ‘Polish Coalition’ (Koalicja Polska) electoral alliance but is currently hovering around the 5% threshold for parties to secure representation in the Sejm, Poland’s more powerful lower parliamentary chamber.

A ‘unity premium’?

Mr Tusk, in particular, has been trying hard to convince the other parties to contest the next election as a single list. Supporters of this option argue that not only would the combined opposition vote be more than enough to defeat Law and Justice. They also say that a single list would actually help the opposition to win extra seats given that the Polish electoral system – proportional representation in multi-member constituencies, with mandates allocated using the d’Hondt counting method – favours larger groupings, especially if a united bloc prevented smaller parties from falling below the parliamentary representation threshold. In the 2015 election, for example, Law and Justice secured an outright majority in spite of winning only 38% of the vote because left-wing parties failed to secure parliamentary representation.

Moreover, supporters of a single list argue that, in addition to electoral system rewards, the opposition could also secure a dynamic ‘unity premium’ as anti-government voters were mobilised by the knowledge that they would be voting for a bloc with a strong chance of winning (although the greater polarisation could also mobilise Law and Justice voters). Mr Tusk, for example, cited a May poll conducted by the Ipsos agency for the liberal-left OKO.press portal which showed that 50% of respondents would vote for a single opposition list, 20% more than for Law and Justice (although critics point out that the findings assumed an 88% turnout when in 2019 it was only 62%, itself a record high for a post-1989 parliamentary election).

More cynical commentators argue that part of the motivation for a single opposition list is to actually dilute the prominence of Mr Tusk who, although he is popular among government opponents, is one of Poland’s least trusted politicians. While his return to domestic politics re-established Civic Platform as the main opposition grouping, the party still lags behind Law and Justice, and a June-July survey by the CBOS agency found that only 30% of respondents trusted him while 52% did not. Given that Mr Tusk was prime minister for nine out of the ten years that Civic Platform was in office, few politicians better embody the previous administration which came to be viewed by many Poles as lacking social sensitivity and out-of-touch with their needs.

Opposing Law and Justice is not enough

However, the leaders of the other opposition parties, especially ‘Poland 2050’ and the Peasant Party, are much less enthusiastic about the idea of a single list. Their main argument is that, while the opposition may be united in their dislike of Law and Justice, evidence suggests that their electorates are quite heterogeneous and it will be difficult to get such a diverse group of Poles to support a single list. Indeed, critics argue that a single list strategy could actually lose the opposition voters on its ‘flanks’, and be undermined by those who reject the current duopoly and would support ‘challenger’ parties instead.

There will, for example, be moderate centre-right voters who may not support Law and Justice but could be put off voting for a joint opposition list that contains parties with a strong liberal-left ideological profile on moral-cultural issues; including, for example, many of the Peasant Party’s small-town, socially conservative supporters. Similarly, ‘Poland 2050’ has attracted some support through its claim to transcend the ‘pro-versus-anti-Law and Justice’ binary divide, but it will be difficult for the party to present itself as ‘new’ if it enters into a pre-election coalition dominated by Civic Platform which, to many voters, embodies the pre-2015 status quo ante. Interestingly, an August 2021 CBOS survey found that only 36% of ‘Poland 2050’ and 45% of Peasant Party voters identified themselves as opposition sympathisers compared with 57% of ‘Left’ and 70% of Civic Platform supporters.

Opponents of the single list idea point to the experience of the ‘European Coalition’ (Koalicja Europejska) when virtually all of the opposition came together to form an alliance specifically to contest the May 2019 European Parliament (EP) election. In the event, Law and Justice secured 45% of the votes, ahead of the Coalition with only 38%, less than the combined support of the parties comprising the bloc when it was formed. Critics also point to April’s Hungarian election where a single opposition list spanning left-to-right saw its early poll advantage crumble and the incumbent right-wing Fidesz party secure a landslide victory by drawing attention to its opponent’s programmatic incoherence. These examples highlight one of the key problems with a single list: that, unless the Law and Justice government implodes or is completely discredited, opposition to the ruling party is not, on its own, a powerful enough mobilising appeal, but the opposition’s ideological eclecticism makes it difficult to develop a clear and distinctive programmatic message.

Supporters of a single list counter that, in spite of their differences, the four anti-government parties’ electorates have more in common than divides them, pointing to how in autumn 2019 they rallied to overturn Law and Justice’s majority in the Senate, Poland’s less powerful second chamber whose members are elected in single-member constituencies. They argue that, because the Polish electoral system is based on ‘open’ candidate lists, voters can support their preferred party even within a single opposition bloc (although this ignores the fact that most voters simply support the candidates at the top of the list, who thereby define the grouping’s overall political profile). Comparisons with the 2019 EP election are, they say, erroneous as the ‘European Coalition’ only failed because it did not manage to unite the whole opposition. They also argue that there were particular circumstances explaining why the Hungarian opposition lost so heavily to Fidesz (until the Russian invasion of Ukraine they were running neck-and-neck) and its result would have been even worse if it had run as separate party lists.

Who aligns with Civic Platform?

The opposition parties know that contesting the next election as four separate lists strongly favours Law and Justice, so self-interest will, sooner or later, probably incline them to be more flexible in their approach to forging electoral alliances. But there is less agreement about what the optimal opposition configuration should be. A single opposition list remains extremely unlikely given the anti-Law and Justice camp’s ideological diversity, and because it would mean the other parties accepting Civic Platform’s hegemony. So the key questions are: which parties will join together on which lists, and (in particular) who aligns with Civic Platform?

The greatest electoral system benefits would probably come if Civic Platform ran separately and the three smaller groupings came together in an electoral bloc but, for the reasons discussed, it would be very difficult to bring together the Peasant Party in a joint list with the ‘Left’. While Civic Platform would probably feel most comfortable in an alliance with the Peasant Party and ‘Poland 2050’ (leaving the ‘Left’ to run separately), these two groupings would prefer not to be aligned with Mr Tusk’s party. Their leaders argue that the most promising approach is to have one ‘centrist’ opposition list comprising these two parties, and a second that comprises Civic Platform and the ‘Left’. They cite the example of last October’s Czech election when two opposition blocs, one centre-right and one liberal, ousted the incumbent government headed by controversial billionaire Andrej Babiš, and a May United Surveys poll conducted for the RMF FM radio station which appeared to confirm that such a configuration would actually be more effective than a single list. Certainly, ‘Poland 2050’ and the Peasant Party, joined by smaller liberal-conservative groupings and defectors from Law and Justice and Civic Platform, would appear to be the most natural ‘fit’ for a joint list. However, Mr Hołownia remains wary of undermining his party’s appeal to ‘newness’ by teaming up with a party that for many is still associated with the post-communist establishment.

A joint Civic Platform list with the ‘Left’ is certainly feasible. Although relations between the two groupings’ leaders were particularly bad when the latter suspected Mr Tusk of sponsoring a pro-Civic Platform left-wing breakaway party, they now appear to have declared a truce. Nonetheless, although in recent years Civic Platform has shifted to the left on both socio-economic and moral-cultural issues, sections of the ‘Left’, particularly supporters of ‘Together’, have considerable misgivings about running on a joint list with a party that they believe is still rooted in a conservative-liberal mindset. For its part, Civic Platform retains ambitious to draw support from across the political spectrum, and is concerned that building an alliance solely with the ‘Left’ could put off moderate conservative voters.

No final decisions until next spring?

At the moment, the most likely configuration appears to be three opposition lists: Civic Platform; ‘Poland 2050’ with the Peasant Party and smaller liberal-conservative groupings; and the ‘Left’. Some analysts feel this might even be a sufficient level of consolidation, given that the biggest electoral system ‘unity premium’ comes from the smaller parties combining to ensure that their votes are not ‘wasted’, with the benefits of then joining a larger grouping being incrementally smaller. But the situation is very fluid and, with over a year to go until the election, most opposition leaders feel that they can wait and see how the situation develops during the next few months. Mr Hołownia, in particular, is keen to leave it until the last moment to join a coalition as he feels that he needs to carve out the best possible position for his new party. Indeed, it could be that final decisions on the configuration of the opposition lists will not be taken until as late as next spring.

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

The imperative to the maintain European unity in the face of Russian aggression has put the EU political establishment under pressure to de-escalate its ‘rule of law’ conflict with Poland’s right-wing ruling party, which is prepared to compromise as long as it does not have to abandon the core of its judicial reform programme. But the vagueness of the European Commission’s reconstruction plan ‘milestones’, and the fact that payments will only be released in tranches, mean that it can still use the coronavirus recovery fund as a conditionality tool.

An ongoing dispute

Last month, after a year of deadlock, the Polish government, led since autumn 2015 by the right-wing Law and Justice (PiS) party, finally reached an agreement with the European Commission over Poland’s EU coronavirus recovery fund national reconstruction plan (KPO). This paves the way for the conditional release of the 34.5 billion Euros in grants and loans that has been allocated to the country as part of the fund. The monies had been withheld due to a long-running row between Warsaw and the EU political establishment over ‘rule of law’ issues, particularly Law and Justice’s fiercely contested judicial reforms.

The EU institutions have agreed with Poland’s legal establishment and most opposition parties that these reforms undermine judicial independence and threaten the key democratic principle of the constitutional separation of powers. Law and Justice, on the other hand, argues that, following Poland’s flawed transition to democracy in 1989, the judiciary, like many key institutions, was expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite. It accuses the EU political establishment of bias and double standards, and using the ‘rule of law’ issue as a pretext to victimise Law and Justice because the party rejects the EU’s liberal-left consensus on moral-cultural issues which it feels undermines Poland’s traditional values and national identity.

In 2017, the Commission took the unprecedented step of initiating an action against Poland under Article 7 of the European treaties, which can be invoked against any EU member state when it is feels there is a ‘systemic threat’ to democracy and the rule of law, threatening Warsaw with sanctions including the suspension of its European Council voting rights. However, it was unable to secure the qualified majority required among EU states to move beyond the initial stage of the procedure. The Commission, therefore, initiated legal ‘infringement procedures’ against Poland, as a consequence of which the EU Court of Justice issued a series of judgments ordering the Polish government to reverse aspects of its reforms.

These included a July 2001 ruling calling for the suspension of a newly created supreme court disciplinary chamber for judges that, the Court argued, was incompatible with EU law because it threatened judicial independence. While Law and Justice indicated that it planned to disband the chamber – which, it said, had anyway not fulfilled its objectives – this commitment was too vague for the Commission. Brussels, therefore, delayed approval of Poland’s national recovery plan until it complied with the ruling of the EU Court; which, at the Commission’s request, also ordered Poland to pay one-million Euros per day fines for non-compliance. The disciplinary chamber’s fate thus became central to the dispute between Law and Justice and the EU political establishment.

De-escalating the conflict

However, the ‘rule of law’ issue has become an awkward one for the EU given Poland’s centrality to the West’s response to Russia’s invasion of Ukraine. Poland’s critical geographical location, together with the fact that it is NATO’s largest member and top defence spender in the region, mean that it has become pivotal to the alliance’s security relationship with Moscow. The country has been one of the main hubs for channeling military and humanitarian aid to Ukraine, and prime destination for refugees fleeing from the conflict with more than 3.5 million people crossing its Eastern border. At the same time, Poland’s credibility and international standing were enhanced by the fact that it proved more perceptive than the main EU powers in correctly warning about Russian President Vladimir Putin’s expansionist designs on the region.

As a consequence, in order to maintain European unity and solidarity in the face of Russian aggression, the EU political establishment came under pressure to de-escalate the conflict with Poland and accept its national reconstruction plan. However, in doing so the Commission also set out ‘milestones’ that had to be fulfilled for the conditional release of coronavirus recovery fund payments. These included: the dismantling of the supreme court disciplinary chamber, the creation of a new (and apparently more impartial) disciplinary system for judges, and a review of the cases of those judges previously sanctioned by the chamber.

Last month, the Polish parliament approved a law proposed by Law and Justice-backed President Andrzej Duda aimed specifically at trying to meet the EU Court and Commission’s central concerns. The supreme court amendment law replaces the disciplinary chamber with a new body, the professional responsibility chamber, appointed in a two-stage procedure: initially 33 candidates drawn by lot from among the 90 supreme court judges, and the final eleven then selected by the President. The legislation envisages a swift review by the new body of all the disciplinary chamber’s earlier cases where judges have been disciplined or had their immunity lifted.

Ignoring the key issue?

The Commission’s decision to approve Poland’s national reconstruction plan was strongly criticised by both the European Parliament (EP) and many anti-Law and Justice legal experts and commentators. They saw it as a short-term political deal and warned that the supreme court amendment law was not sincere and simply replaced the disciplinary chamber with a similar body but with a different name and chosen by the government-allied President, while suspended judges would not necessarily be re-instated, simply have their cases reviewed. They accused the Commission of abandoning the most effective instrument that it had for exerting pressure on Law and Justice, arguing that the ‘milestones’ were too vague and open to political interpretation.

For its part, the Commission stressed that Poland will not receive the first actual coronavirus fund payments until the end of 2022 or early 2023, so it will have the opportunity to assess whether the necessary reforms really have been undertaken. If it does not believe that sufficient progress has been made the Commission can recommend freezing the payments. For Law and Justice this could mean high profile conflicts with the EU political establishment in the run-up to the next parliamentary election, scheduled for autumn 2023. A foretaste of this came at the beginning of this month when Commission President Ursula von der Leyen stated that, in her view, the supreme court amendment law did not ensure sufficiently that Polish judges were able to question another judge’s status or decisions without risking being subject to a disciplinary offence.

Nonetheless, many of Law and Justice’s critics also believe that the Commission’s ‘milestones’ ignore the core issue at the heart of the judicial reforms: the status of the national judicial council (KRS), a key body that oversees the appointment and supervision of judges in Poland. The council was re-constituted by Law and Justice so that elected politicians rather than the legal profession now have the decisive influence in determining its composition. The government’s critics argue that, by ignoring this issue, the Commission has not gone far enough in restoring the ‘rule of law’ and protecting the judiciary from political interference. Law and Justice, on the other hand, argues that giving elected politicians a greater say in the appointment of supervisory bodies such as the national judicial council is essential because the Polish judicial elite has operated as a ‘state within a state’ incapable of reforming itself. So making judges and their supervisory organs more accountable to elected bodies is both justified and in line with practices in other established Western democracies.

Too many concessions to Brussels?

Law and Justice has also been keen to end the deadlock on this issue because it urgently needs the coronavirus fund money, not least to improve its chances of re-election in the next year’s parliamentary poll. The government feels that a swift, large-scale inflow of Euros would not only help to finance an investment boost, but also contribute to strengthening the Polish złoty and thus lower the price of imported goods, thereby helping to reduce the rate of inflation which last month hit a quarter-century high of 15.6%. Law and Justice also made maintaining Poland’s high level of fiscal transfers one of its main EU policy goals, and ran a very high-profile advertising campaign promoting the fact that it had secured them as part of the Union’s 2021-27 budget round.

At the same time, while Law and Justice remains committed to a wide-ranging judicial overhaul as a key element of its radical state reform programme, the governing camp is divided over how far to concede to the EU political establishment and whether to push ahead with and deepen the reforms. The ruling party is under particular pressure from ‘Solidaristic Poland’ (SP), Law and Justice’s junior governing partner led by justice minister Zbigniew Ziobro, on whose 20 deputies it relies for its parliamentary majority. Mr Ziobro, who has introduced many of the government’s most controversial policies including the judicial reforms has been staking out a series of hard-line right-wing conservative policy positions and criticising the government for being excessively compromising and ideologically timid. Specifically, ‘Solidaristic Poland’ accuses Polish prime minister Mateusz Morawiecki of making too many concessions to the EU institutions, which it argues are engaged in a ‘hybrid war’ against Poland, and it took Law and Justice several months to persuade Mr Ziobro and his allies to finally accept Mr Duda’s supreme court amendment law. Indeed, Mr Ziobro is planning further judicial reforms, including a proposal to streamline the Polish court system, which the government’s critics argue would facilitate a further turnover of judges.

An uneasy and unstable truce

The ‘rule of law’ dispute, therefore, appears to have reached an uneasy, and somewhat unstable, truce. On the Polish side, notwithstanding Mr Ziobro’s plans, the Law and Justice leadership seems to want to let the issue rest rather than pushing ahead with new judicial reform initiatives, at least until after next year’s parliamentary election. The ruling party is clearly prepared to compromise with Brussels as long as this does not involve abandoning the core principle at the heart of its judicial reform programme: that elected politicians be given a greater say in determining the composition of the key bodies that oversee the Polish courts.

For the moment at least, the EU political establishment does not appear to be making scrapping the re-constituted national judicial council one of its explicit ‘milestones’ for un-locking coronavirus funding. This will slowly but surely change the nature and composition of Poland’s legal elites, and could cause a major headache for any future government comprising the current opposition parties as to what to do with the thousands of ‘new’ judges appointed by the re-constituted council, and what the legal status of their countless court rulings will be.

However, there are still question marks over whether the supreme court amendment law will fully satisfy the Commission, and whether it will use the fact that recovery fund payments are only to be released in tranches as a means of exerting further pressure on Law and Justice. The Commission’s ‘milestones’ are formulated in such a way that provide it with a great deal of room for manoeuvre to interpret whether or not they have been implemented. As Ms von der Leyen’s recent evaluation of Mr Duda’s law shows, the Commission also appears prepared to defend Polish judges who question the status and rulings of their ‘new’ colleagues appointed by the re-constituted national judicial council. Even if the Commission does not itself directly challenge the legitimacy of this body, this still could cause major problems for Law and Justice – and, indeed, for the overall coherence of the Polish justice system.

How has the Russian invasion of Ukraine affected the Polish government’s EU strategy?

By boosting Poland’s international standing and reducing the credibility of the main EU powers on security issues, the war in Ukraine has opened up a range of possibilities for Warsaw’s right-wing government to increase its influence and re-shape the current system of European alliances. However, relations with Hungary, its previous main EU ally, have reached an all-time low, and it is unclear to what extent other post-communist states will follow Poland in breaking with the European ‘mainstream’.

‘Own stream’ not the ‘mainstream’

Poland’s right-wing Law and Justice (PiS) party took office in autumn 2015 with a commitment to re-orientate the country’s foreign policy and adopt, as it saw it, a more robust and assertive approach to advancing the country’s national interests within the EU. Its predecessor, led by the liberal-centrist Civic Platform (PO) – the country’s governing party between 2007-15, and currently the main opposition grouping – tried to exert influence by locating Poland within the so-called European ‘mainstream’, developing close ties with the main EU powers, especially Germany. Law and Justice, on the other hand, argued that Poland needed to adopt a more autonomous EU policy and develop its ‘own stream’, building alternative power blocs as counterweights to the dominant Franco-German axis.

To achieve this, the Law and Justice government tried to position Poland as a regional leader and develop a number of multi-lateral formats based on forging closer ties with the post-communist states of central and Eastern Europe. One of these was the so-called ‘Visegrad’ group: a forum involving Poland, the Czech Republic, Hungary and Slovakia, formed in 1991 to promote regional co-operation and accession to Western institutions which has, in recent years, become an increasingly visible EU lobby group. Indeed, Law and Justice developed particularly strong ties with Hungary’s ruling Fidesz party led by prime minister Viktor Orban which was, until recently, Warsaw’s closest EU ally. Another such forum was the Polish-led ‘Three Seas Initiative’, a wider group of twelve post-communist states aimed at developing solidarity and co-operation on issues where they had tangible common economic interests, such as infrastructure, technology and energy security.

Perhaps not surprisingly, Law and Justice soon found itself in conflict with the EU political establishment, although the most serious clashes were actually over its domestic political reforms. The Polish government has been in a protracted stand-off with the European Commission and major EU powers over so-called ‘rule of law’ issues, particularly its fiercely contested overhaul of the country’s judicial system. The EU institutions agreed with criticisms levelled by Poland’s legal establishment and most opposition parties that these reforms undermined judicial independence and threatened the key democratic principle of the constitutional separation of powers.

Law and Justice, on the other hand, argued that, following Poland’s flawed transition to democracy in 1989, the judiciary, like many key institutions, was expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite. It accused the EU institutions of bias and double standards arguing that the Polish reforms were in line with practices that existed in other established democracies. It said that the EU political establishment was using the ‘rule of law’ issue as a pretext to victimise Law and Justice because the party rejected the EU’s liberal-left consensus on moral-cultural issues which it felt undermined Poland’s traditional values and national identity. Indeed, Law and Justice argued that the conflict arose precisely because it had adopted a more assertive approach to defending and advancing Polish interests and values within the EU.

Poland’s increased international standing

So how has the Russian invasion of Ukraine affected Law and Justice’s EU strategy? Poland’s centrality to the West’s response has provided Warsaw with an opportunity to raise its diplomatic and military profile as a key regional player. Its critical geographical location, together with the fact that it is NATO’s largest member and top defence spender in the region, mean that Poland has become pivotal to the alliance’s security relationship with Moscow. It has been one of the main hubs for channeling military and humanitarian aid to Ukraine, and prime destination for refugees fleeing from the conflict, with more than 3 million people crossing its Eastern border.

The war has also dramatically changed Europe’s geopolitical security dynamics, and potentially the balance of power within the EU bloc. The main EU powers, especially Germany, disregarded the interests of their central and East European allies by developing close ties with Russia; becoming dependent on Russian oil and gas and supplying Moscow with critical technology in the (as it turned out naïve) hope of drawing it into the West’s civilizational orbit. Resentment within the post-communist states over what they see as the West European powers’ over-conciliatory approach to the Kremlin – and, following the outbreak of armed conflict, apparent reluctance to take the lead in countering Russia – meant that, as international security became the dominant issue in the region, the EU political establishment lost considerable political and diplomatic capital.

At the same time, Poland’s credibility and international standing were enhanced by the fact that it had, for a long time, warned about Russian President Vladimir Putin’s expansionist designs on the region. Warsaw had criticised Germany and other Western powers for developing economic and diplomatic ties with Moscow over the heads of the post-communist states, exemplified by the controversial ‘Nord Stream 2’ gas pipeline, which runs directly from Russia to Germany across the bed of the Baltic Sea by-passing Poland and Ukraine (and which Berlin belatedly suspended). Poland has been one of Ukraine’s staunchest allies, at the forefront of efforts to persuade the Western international community to develop a common, robust response to the Russian invasion and ensure that sanctions are maintained and extended. The fact that Germany and the main EU powers have lost credibility on the security issue at a time when it has moved to the top of the political agenda, potentially makes other post-communist states more receptive to Poland’s ideas of closer regional co-operation as a counter to the EU political establishment. Previously, most of these countries saw locating themselves within the European ‘mainstream’ and working closely with Berlin as the key to advancing their interests.

Re-building links with Washington

Moreover, as the war increased the salience of the security issue the USA pivoted away from its previous approach of mediating European relations primarily through the EU political establishment. When US President Joe Biden took office in 2021, he effectively sub-contracted European regional leadership to Berlin. For example, although he initially signalled scepticism towards the ‘Nord Stream 2’ project, and declared repeatedly that his administration would continue to support making the post-communist states’ energy market less dependent on Russia, Mr Biden did not follow through on a threat to sanction German companies involved in the pipeline’s construction.

At the same time, Law and Justice had extremely fraught relations with the Biden administration. Poland’s ruling party enjoyed very strong ties with Mr Biden’s predecessor, Donald Trump, whom it came to see as a conservative ideological soulmate. Mr Trump gave strong support to the ‘Three Seas Initiative’, which he saw as a way of boosting Poland’s influence and challenging the existing EU elites. The Biden administration, on the other hand, viewed Law and Justice as being on the ‘wrong side of history’ on moral-cultural issues, and during the 2020 US presidential election campaign Mr Biden mentioned Poland as a country where democracy was endangered. For his part, Law and Justice-backed Polish President Andrzej Duda initially delayed acknowledging Mr Biden’s election until the results were officially ratified. Mr Biden also saw the role of European regional co-operation forums such as the ‘Three Seas Initiative’ as complementary to the EU ‘mainstream’ rather than a counterweight to the Franco-German axis.

In fact, even before the war began Mr Duda had been making a concerted effort to re-build links with Washington. Last December, he vetoed a controversial media law that the USA felt threatened the commercial interests of the American-owned Polish TVN broadcaster, which takes a strongly anti-Law and Justice editorial line. Moreover, following the invasion Poland became a key front-line NATO member and Washington’s most important strategic partner in promoting regional security and challenging Russian aggression. With Germany lacking the authority to lead Europe on security issues, the Biden administration made a pragmatic decision to put aside its political and ideological differences with Law and Justice and prioritise broader strategic co-operation; exemplified by Mr Biden’s high profile March visit to Poland when he tellingly did not overtly criticize the Polish government’s domestic policies.

Relations with Hungary at a low point

However, one clear political downside of the Russian invasion from Law and Justice’s perspective is that top-level co-operation between the four ‘Visegrad’ states has effectively been suspended due to Hungary’s stance of maintaining close relations with Moscow. Although, some lower level of co-operation will probably continue, for the foreseeable future the group is unlikely to function as a coherent regional lobby organisation.

Moreover, Law and Justice’s relations with the Orban administration are at an absolute low point. Previously, the two governments had been close political and ideological allies, regularly supporting each other in their respective clashes with the EU political establishment over ‘rule of law’ and moral-cultural issues. However, while Poland has taken a strongly anti-Russian line, Hungary held up tougher EU sanctions and refused to allow weapons bound for Ukraine to transit through its territory. Contrary to Law and Justice’s hopes and expectations, Mr Orban did not go further in distancing Budapest from Russia after Fidesz won Hungary’s April parliamentary election.

For sure, the two parties have long held divergent views on relations with Russia but, until the invasion, Law and Justice was prepared to tolerate Fidesz’s pro-Moscow tendencies and put the issue on the back-burner. However, the war has been a game-changer with Law and Justice seeing Russian aggression in Ukraine as a defining moment in international politics and Budapest’s close links with Moscow as undermining not only Ukrainian but also Polish security interests. For the moment, Law and Justice’s previous, seemingly wide-ranging, strategic partnership with Fidesz, based on a shared anti-federalist view of their preferred trajectory of the European integration project and rejection of the liberal-left EU consensus on moral cultural issues, has been reduced to tactical co-operation over ‘rule of law’ issues where both countries have been attempting to stave off EU sanctions.

Will regional security remain the dominant issue?

It is too early to tell to what extent the war will strengthen Poland’s efforts to draw other post-communist states away from their orientation towards Germany and the EU ‘mainstream’. The international situation is fluid and a lot obviously depends on how long and protracted the war will be, and whether it will have long-lasting or quickly-diminishing effects. Moreover, Germany remains the Union’s key political player and main economic powerhouse so, however frustrated they may be about Berlin’s indecisiveness over the Ukrainian conflict, central and East European states may still want to align themselves closely with the ‘mainstream’, particularly if security issues move down the political agenda and socio-economic concerns become more salient.

There is also an argument that deeper EU integration – and, therefore, closer alignment with the EU ‘mainstream’ – may actually enhance these countries’ security by helping to embed them more firmly within Western international structures. The Polish opposition has, for example, argued that Law and Justice’s conflict with the EU political establishment has undermined the country’s national security by weakening its anchoring in the West. Nonetheless, to the extent that regional security remains the defining issue in central and East European politics, it is unlikely that there will be an imminent return to the status quo ante as far as German leadership credibility is concerned. Although it is unclear how this will ultimately play out, the Russian invasion has clearly opened up a range of possibilities for Law and Justice to boost its EU influence and re-shape the current system of European alliances.