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

by Aleks Szczerbiak

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.