What does Law and Justice’s re-election mean for Poland-EU relations?

by Aleks Szczerbiak

Poland’s right-wing ruling party is hoping that its decisive election victory will encourage the EU political establishment to put contentious issues such as ‘rule of law’ compliance on the back-burner. But this could be undermined by ongoing cases against Poland in the EU Court, proposals to link Union funding to ‘rule of law’ compliance, and possibly renewed disputes over domestic policies.

Clashes over domestic policy

The right-wing Law and Justice (PiS) grouping, Poland’s ruling party since 2015, is anti-federalist (arguably Eurosceptic) and extremely wary of further centralisation and extensions of EU competencies at the expense of member states. It was elected with a commitment to adopt a more robust and assertive approach to advancing the country’s interests within the EU. Its predecessor, the liberal-centrist Civic Platform (PO), the country’s governing party between 2007-15 and currently the main opposition grouping, attempted to locate Poland in the so-called European ‘mainstream’ by developing close relations with the main EU powers, especially Germany. Law and Justice, on the other hand, argued that Warsaw needed to form its ‘own stream’ to counter-balance the influence of the Franco-German axis by, for example, forging closer ties with post-communist Central and East European states. It did not come as a surprise, therefore, that, shortly after coming to office, Law and Justice soon found itself in conflict with the EU political establishment.

Initially this was over its refusal to implement a plan involving the compulsory relocation of Muslim migrants from the Middle East and North African, arguing that this represented a potential threat to Polish cultural identity and security. However, the most serious clashes were over Law and Justice’s domestic political reforms. Since the beginning of 2016, the Polish government has been in a protracted stand-off with the European Commission over ‘rule of law’ issues, which also contributed to worsening bi-lateral relations with the major EU powers. Initially, the dispute was over the membership and functioning of Poland’s constitutional tribunal but escalated to include Law and Justice’s fiercely contested judicial reform programme. The Commission took the unprecedented step of initiating an action against Poland under Article 7 of the European treaties, which it can invoke against any EU member state where it 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. The Commission also initiated infringement procedures against Poland in the EU Court of Justice.

In doing so, the Commission agreed with criticisms levelled by Poland’s legal establishment and most opposition parties that Law and Justice’s reforms undermined judicial independence and threatened the key democratic principle of separation of powers. Law and Justice, on the other hand, argued that following the country’s flawed transition to democracy in 1989, the judiciary, like many key Polish institutions, was expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite, which then co-opted a new legal establishment that perpetuated its legacy. It accused the Commission of bias and double standards, arguing that its reforms were in line with practices that existed in other established Western democracies, and being motivated by the fact that Warsaw had been robust in promoting Polish interests and values, and opposing the socially liberal and multi-cultural policies supported by the EU political establishment.

Defanging the ‘Polexit’ narrative

In fact, the Polish government has for some time been making a concerted effort to de-escalate this conflict. At the end of 2017, respected former international banker Mateusz Morawiecki replaced the more combative Beata Szydło as prime minister in large part to ‘re-set’ Poland’s relations with the EU political establishment. Law and Justice has tried to present Poland as a constructive EU member state and de-couple the ‘rule of law’ dispute from its ability to develop a pragmatic working relationship with the Commission and major European powers on day-to-day issues. The party’s efforts were driven partly by a desire to neutralise the opposition’s (at one time apparently effective) narrative that the government’s frequent clashes with the EU political establishment, and the ‘rule of law’ dispute in particular, could lead to Poland leaving the Union, so-called ‘Polexit’. Whatever misgivings Poles may have about specific EU policies they continue to support the country’s membership overwhelmingly; a March 2019 survey conducted by the CBOS agency, for example, found 91% in favour and only 5% against.

Just what how toxic a slogan ‘Polexit’ was for any mainstream Polish politician to be associated with could be seen in the autumn 2018 local elections. Although Law and Justice won the highest share of the vote overall it performed poorly in medium-sized and larger towns, which many commentators attributed to the opposition’s claim that the ruling party was contemplating exiting from the EU. In the week leading up to polling day it emerged that justice minister Zbigniew Ziobro had asked the constitutional tribunal whether Polish judges had the right to refer queries on EU law to its Court of Justice. The opposition interpreted this as a pretext for Poland to ignore the Court’s verdicts if the constitutional tribunal questioned the primacy of EU law in Polish affairs, arguing that undermining the Union’s treaties in this way could be a precursor to ‘Polexit’. However, Law and Justice’s conscious efforts to project a more pro-EU image scuppered the opposition’s plan to turn May’s European Parliament (EP) election into a de facto referendum on ‘Polexit’, and the issue barely featured in the recent parliamentary campaign.

Indeed, in last month’s poll, Law and Justice became the first governing party to secure re-election with an overall majority for a second term of office, winning the largest vote share on the highest turnout in any post-communist Polish parliamentary election. The party is hoping that its decisive victory will encourage the EU political establishment to come to terms with the fact that they now have to deal with a Polish government with a renewed, solid democratic mandate; and therefore put contentious issues that could undermine strategic co-operation, such as ‘rule of law’ compliance, on the back-burner. Law and Justice is also hoping that the incoming Commission’s President-elect Ursula von der Leyen will be more accommodating towards Poland, particularly as Law and Justice played a key role in her appointment. Warsaw is encouraged by fact that Dutch commissioner Frans Timmermans – who took the lead on ‘rule of law’ issues in the outgoing Commission, and whose presidential bid Poland helped to block – is moving on to a different brief.

Problematic EU Court cases

However, a number of developments could undermine Law and Justice’s hopes of further reconciliation with the EU political establishment. Firstly, there are several ongoing referrals against Poland in the EU Court of Justice. Last month, in one of its final acts the outgoing Commission filed a case against new disciplinary rules which, it argued, failed to protect Polish judges from political control. The new procedures are conducted by a supreme court disciplinary chamber made up of judges chosen by the National Judicial Council (KRS), a body in which the majority of members are now selected mainly by parliament (by a qualified three-fifths supermajority) rather than the legal profession. Earlier this year, the Court found in the Commission’s favour in a case where it argued that new retirement provisions for supreme court judges violated EU law. The Commission has also referred legislation on the retirement provisions and functioning of the ordinary courts to the EU Court, while Polish judges have submitted a number of ‘prejudicial questions’ on the disputed reforms.

The EU Court has proved more willing to intervene in the functioning of national judicial systems than many commentators anticipated. In addition to the supreme court retirement provisions ruling, the Court’s advocate general has issued negative opinions on similar provisions for ordinary court judges and, in response to ‘prejudicial questions’, criticised the supreme court’s new disciplinary chamber and the composition of the new National Judicial Council. The Court tends to follow the advocate general’s advice in its final rulings, which are expected this autumn.

Law and Justice was prepared to face down the Commission given that its Article 7 pressure was solely political because it lacked the requisite majority in the Council of Ministers to move towards sanctions. However, it is more difficult for the Polish government to ignore the EU Court because it can impose heavy financial penalties on countries that do not comply with its rulings. Non-compliance would also involve an open breach of the EU’s rules allowing the opposition to revive its ‘Polexit’ narrative. This could cause real problems for Law and Justice if the Court strikes down measures that go to the heart of its reform programme, such as giving elected politicians a greater say in the election of the National Judicial Council.

Linking EU funds with the ‘rule of law’

Secondly, while one of Law and Justice’s main EU policy goals is to maintain Warsaw’s current levels of fiscal transfers, which many commentators argue have played a key role in the country’s economic modernisation, the outgoing Commission’s proposal for the Union’s 2021-27 long-term budget involves a sharp reduction in traditional spending areas such as ‘cohesion funds’, used predominantly to fund public investment in less well-off states like Poland. Law and Justice is focusing on building an effective ‘friends of cohesion’ coalition in the forthcoming budget negotiations, but the Commission is also proposing a new regulation linking the disbursement of EU funds to ‘rule of law’ compliance.

Under the proposed new instrument, the Commission could suspend, reduce or restrict access to EU funding if it felt that there were ‘generalised deficiencies’ in the investigation and prosecution of fraud or corruption, or an individual member state’s judicial system undermined the determination of court cases relating to Union funds. The decision could only be over-turned by a qualified majority in the EU Council, giving Brussels much greater leeway in determining whether there should be sanctions against member states. The Polish government is hoping that the regulation will be targeted very specifically at violations linked to the management of EU funds rather than broader systemic concerns which, it argues, are more difficult to measure objectively. Moreover, even those EU member states taking the Commission’s side against Poland in the ‘rule of law’ dispute may be reluctant to give Brussels such sweeping powers, and while the regulation could be approved by a simple majority Warsaw has indicated that it is prepared to veto the whole EU budget (which requires unanimous support) if it threatens its interests.

Avoiding contentious domestic issues until May?

Finally, although the election will not bring any significant change in Poland’s foreign policy, some of the new government’s domestic policies could lead to renewed disputes with the EU political establishment. Law and Justice remains committed to deepening and pushing forward with its radical state reform programme in areas such as the judiciary and privately-owned media (to re-balance what it sees as an in-built structural bias favouring the liberal-left). However, Polish politics will now be dominated by next May’s crucially important presidential election, when Law and Justice-backed incumbent Andrzej Duda’s five-year term of office ends.

Most commentators assumed Mr Duda would win easily given his high popularity ratings, and he remains the clear favourite. But the parliamentary election showed how polarised and evenly balanced support between the government and opposition camps is, and the presidential poll could be much closer than previously anticipated. As Law and Justice lacks the three-fifths parliamentary majority required to over-turn a presidential veto, Mr Duda’s defeat would be a disaster for the ruling party seriously hampering the implementation of its legislative programme. In the presidential election, a successful candidate has to craft a unifying and consensual appeal that can win over more than 50% of the voters. So Law and Justice will also be keen to avoid introducing divisive and polarising measures that could re-ignite its conflict with the EU political establishment for fear of alienating moderate voters, at least until the May election.