Rafal Gonta




 

Introduction

On 6 November 2023 the Polish President Andrzej Duda declared that he will give the current Prime Minister Mateusz Morawiecki a chance to form the next government. This comes three weeks after Polish parliamentary elections, where the ruling conservative party (of which Morawiecki is a member), called Law and Justice (‘PiS’), received the most votes, but will very likely be unable to find a majority. PiS is isolated as the next three largest parties – the centrist Civic Coalition (‘KO’), the Christian-democratic Third Way, and the Left, respectively – work closely together to form a coalition government. What the three parties have in common is an ambition to repair tarnished relations with the EU and a devotion to Western liberal democracy and its idea of the rule of law.

 

To protect Western idea of the rule of law, as enshrined in Article 2 of the Treaty on European Union (‘TEU’), EU passed two landmark regulations: Regulation 2020/2092 and 2021/241. These regulations create, inter alia, a conditionality mechanism which binds payment of funds from EU budget to adherence to Article 2 TEU. The mechanism is two-layered, for it includes general provisions of Regulation 2020/2092 allowing for suspension of any budget payments when violations of the rule of law ‘seriously risk affecting the sound financial management of the Union budget’.[1] Regulation 2021/241, in turn, includes a more specific, and ‘softer’, system of ‘milestones’, i.e. requirements which must be met by Member States before they can get funds from the EU Recovery Instrument (the EU COVID-19 recovery package tied to the 2021–2027 budget).[2]

 

The conditionality mechanism has been an effective way of promoting the traditional Western understanding of the rule of law in Poland. This is because: (a) during elections, it helped those who signalled willingness to protect the rule of law, and (b) now, it requires very little of them, only a gesture of goodwill.

 

 

The Polish Parliamentary Elections

The Polish election campaign was fierce. It embodied the classic dispute over liberal democracy – between the stagnant working- and the buoyant middle-class. The rule of law, being an essential part of the liberal-democratic model, naturally caused division. Its political significance has been further enhanced by the ‘milestones’ of Regulation 2021/241, on which depends the financing of Poland’s recovery and resilience plan (the Polish part of the EU Recovery Instrument). The plan is worth around €35.4 billion and is critical for the Polish economy, providing it with a stimulus for strategic investments in the green and digital transition. To receive the first tranche of the financing, Poland must achieve, inter alia, three ‘milestones’ requiring changes to the judicial system. The changes are aimed at ensuring independence of the judiciary from the executive. PiS has refused to undertake the changes. Consequently, and pursuant to Regulation 2021/241, the European Commission has suspended the payment of the first tranche.

 

The conditionality mechanism has helped those political forces that are willing to implement the changes of the ‘milestones’. This is because the economic benefits are too great to be ignored, and because the suspension of the first tranche demonstrates PiS’s irrationality.

 

Poles identify ‘inflation and rising prices’ as the second most important social issue.[3] The annual rate of inflation in Poland fell to 6.5% in October (8.2% in September). However, it is speculated that the first tranche of the resilience and recovery plan – worth around €4.2 billion – might further reduce the inflation rate by strengthening the currency.[4] The plan is also expected to help the Polish economy avert a looming recession. Moreover, the plan includes significant investments aimed at improving access to healthcare, which is the first most important issue for Poles.[5] Therefore, Poland’s recovery and resilience plan corresponds impressively with the country’s social mood. Hence, a commitment to unlock the plan’s financing – which implies adherence to the conditionality mechanism – automatically gives one the upper-hand. The Polish opposition parties took advantage of that.

 

There are few things that agitate the middle-class more than an ‘irrational’ economic policy. PiS’s refusal to keep the judiciary independent, despite the conditionality mechanism, is irrational. It stems from the party’s ideological struggle to achieve ‘a soft authoritarianism’, as the party leader Jaroslaw Kaczynski puts it.[6] In 2022, 66% of Poles said that PiS should concede to the three ‘milestones’.[7] During the election campaign, PiS’s dispute with the European Commission demonstrated its fanaticism like nothing – except for the tightening of the abortion law in 2020 – had before. This fanaticism mobilised the Polish middle-class, resulting in a historic voter turnout of 74%, which contributed to PiS’s losing 41 seats in the elections.

 

The Gesture of Goodwill

The three ‘milestones’ relating to changes in the Polish judicial system are as follows:

 

1. Abolition of the Disciplinary Chamber of the Supreme Court.

2. Reform of the disciplinary regime applicable to judges.

3. Reconsideration of the Disciplinary Chamber’s decisions.[8]

 

The changes mirror judgments of the European Court of Justice (‘the ECJ’) regarding the rule of law in Poland, such as C-791/19 Commission v Poland (Régime disciplinaire des juges).[9] Neither of the changes has been properly implemented.

 

The conditionality mechanism requires only a gesture of goodwill from a future Polish government willing to achieve the three ‘milestones’. This is because the ‘milestones’ fall short of a comprehensive reform protecting the rule of law, and because they are easy to achieve in comparison to a comprehensive reform.

 

The three ‘milestones’ do not mention the composition of the Polish Constitutional Tribunal, which plays a crucial role in the ongoing rule of law crisis. In Xero Flor w Polsce sp. z o.o. v Poland, the European Court of Human Rights found that the Constitutional Tribunal is not a ‘tribunal established by law’ due to, inter alia, ‘manifest breaches of the domestic law’ and ‘breaches in the procedure for electing three judges … of such gravity as to impair the legitimacy of the election process’.[10] Under the Constitution of Poland, the Constitutional Tribunal is responsible for adjudicating ‘the conformity of statutes and international agreements to the Constitution’.[11] Thus, it is the principal guardian of the rule of law. It follows that without requiring a legitimate election process for the Constitutional Tribunal, the three ‘milestones’ fall short of any comprehensive protection of the rule of law.

 

Enforcing the legitimate election process for the Constitutional Tribunal would be difficult and time-consuming. It would involve substantial legislation and possibly, constitutional amendments. The legislation would require approval from the President Andrzej Duda, who is affiliated with PiS. Any constitutional amendments, in turn, would require a two-thirds majority in the Sejm (the lower house of parliament). On the other hand, the three ‘milestones’ could be achieved by government conduct only. For in Poland, the Minister of Justice has a statutory power to appoint presidents of ordinary courts.[12] Newly appointed presidents would give effect to the ECJ’s judgments, thus invalidating decisions of the Disciplinary Chamber. Broad application of EU law by ordinary courts would in practice deprive the Disciplinary Chamber of any significance.

 

Conclusion

Unlocking the financing of Poland’s recovery and resilience plan will be a great political victory for a future government. Indeed, Poles see it as the second most important task for a coalition which will be in power. That is why Donald Tusk, the leader of KO, travelled to Brussels a week after the elections to express to Ursula von der Leyen his commitment to achieve the ‘milestones’.

 

In the case of Poland, the conditionality mechanism of Regulations 2020/2092 and 2021/241 has proven successful in projecting Western idea of the rule of law onto Eastern Europe. It has helped those political forces that are willing to promote liberal democracy, in accordance with Article 2 TEU.

 

[1] Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget [2020] OJ L433I/1, art 4(1).

[2] Regulation (EU) 2021/241 of the European Parliament and of the Council establishing the Recovery and Resilience Facility [2021] OJ L57/17, art 4.

[3] Zuzanna Dąbrowska, ‘Sondaż: Jakie problemy są dla Polaków najważniejsze? Nie te z referendum’ (Rzeczpospolita, 1 September 2023) <https://www.rp.pl/polityka/art39038641-sondaz-jakie-problemy-sa-dla-polakow-najwazniejsze-nie-te-z-referendum> accessed 10 November 2023.

[4] ibid

[5] ibid

[6] Katarzyna Przyborska, ‘Autorytaryzm to jeszcze nie totalitaryzm, a liberalizm się u nas nie przyjął’ (Krytyka Polityczna, 31 July 2023) <https://krytykapolityczna.pl/kraj/kaczynski-autorytaryzm-to-jeszcze-nie-totalitaryzm-a-liberalizm-sie-u-nas-nie-przyjal/> accessed 10 November 2023.

[7] Grzegorz Osiecki and Tomasz Żółciak, ‘Nowy sondaż i „tak” dla ustępstw wobec KE. Wyboista droga do KPO’ (Dziennik Gazeta Prawna, 19 December 2022) <https://www.gazetaprawna.pl/wiadomosci/kraj/artykuly/8613066,kpo-nowelizacja-sn-ke-plan-odbudowy.html> accessed 12 November 2023.

[8] Ministerstwo Funduszy i Polityki Regionalnej, Krajowy Plan Odbudowy i Zwiększenia Odporności (June 2022).

[9] Case C-719/19 EU:C:2021:596.

[10] Xero Flor w Polsce sp. z o.o. v Poland App no 4907/18 (ECHR, 7 May 2021), paras 275-287.

[11] art 188 ust 1 Konstytucji Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r (Dz U z 1997 r Nr 78, poz 483).

[12] Ustawa z dnia 27 lipca 2001 r Prawo o ustroju sądów powszechnych (Dz U z 2001 r Nr 98, poz 1070).