by Tomasz Kaniecki

Without concessions over the judiciary, it will be difficult for the new government to improve Poland’s relations with the EU and its image abroad. Surprisingly, Poland is not the only country in the region that has problems with the rule of law in the EU, but it is the only one that has allowed the conflict to get to a stage where EC launched the sanctions procedure.

On 20 December 2017, the European Commission opened the treaty sanctions procedure and requested the EU Council to look into the rule of law in Poland. It is worth reminding, that it was Victor Orbán’s (EPP) government, who prompted EC to establish the rule of law procedure (but Hungary has not been subject to it so far). The decision was made after over two years of monitoring the rule of law in Poland and trying to influence the decisions taken by Warsaw about the Constitutional Tribunal and the judiciary. The Commission’s decision was motivated by the law on the Supreme Court (SN) and the National Judiciary Council (KRS) adopted in December, which subjugated the judiciary to the executive power. The legislation on SN also calls up a separate disciplinary chamber within the Court and unconstitutionally retires up to a half its judges, including the Court’s first president.

Poland is the first country against which the sanctions procedure has been launched. The decision was made in PM Mateusz Morawiecki’s second week in office and several days after his first visit in Brussels, where he met Jean-Claude Juncker and Frans Timmermans. The new PM has already ruled out that Poland would abandon the judiciary laws. Nonetheless, he will definitely sooth the moods and change rhetoric to defend the changes. Morawiecki has already changed the method of communication with the EU partners. Unlike Beata Szydło, he does not cut short conversations about the rule of law, and instead of making stern declarations on sovereignty and every country’s right to internal reforms, he explains why PiS views the changes to the judiciary as “necessary”. That is being helped by his personal qualities, relative knowledge of foreign languages and experience in dealing with foreign partners.

His hands, however, remain tied by the governing party. Despite the change of the PM and following dismissal of the ministers responsible for the harsh statements (the Minister of Defence, who had conflicts with France and Germany; the Minister of Environment, who had conflicts with Brussels over tree logging in Białowieża forest; the Minister of Health, who had conflicts with doctors and the Minister of Foreign Affairs, who had conflicts with Brussels, Germany, Ukraine and so on) the real centre of power remained in the hands of the party leader and average MP, Jarosław Kaczyński. Morawiecki is his trusted choice.

Mateusz Morawiecki’s appointment as PM turns out to be the start of a more extensive political game by Jarosław Kaczyński, as he decided to close down fronts which were risky for PiS. The moderate PM, the reconstruction towards a government of professionals, the softening of political rhetoric and concessions on issues of secondary interest from PiS’s point of view, are coordinated and have a common interim goal – the disorientation of opposition groups and demobilisation of their electorate. At the same time, the long-term plan of the ruling party has not changed – it is still the taking of control over as large a part of the state apparatus as possible, from Constitutional Tribunal, through public media to the courts.

The decision on reshuffle also helped PiS to improve its ratings home. As the support for the government was falling in November and early January, after the reshuffle, PiS gained in all the polls. This shows that in the short-term, Morawiecki’s new Cabinet managed to attract new supporters to the party (PiS aim to get centrist and undecided voters), without discouraging the hard-core electorate. At the end of the month, PiS had gained (on average 2 points to 40 percent); the ratings for the opposition were unchanged – their activities were eclipsed by the reshuffle, weakness of the leadership and lack of its political initiative. Also, the opposition does not have any practical idea how to react to PiS allegations that its actions in the EU should be viewed as informing on one’s own country and “treason”.

Triggering the procedure has stigmatised Poland as a country which has problems with the rule of law. It has strengthened arguments used by those who support tightening the course by the EU against countries that show disregard towards common European values. In a discussion about the future budget, they will demand that accessing EU funds should be linked with respecting the rule of law (France, Italy). Warsaw’s problems will discourage EU capitals from making concessions towards Poland about the future rules of the cohesion policy – western politicians will find it difficult to convince their electorate that they should support the EU budget with large payments, which mostly benefits Warsaw. Poland, on the other hand, will find it harder to unite other member states in the region to support its interests.

It is worth mentioning that Warsaw’s problems are convenient for other capitals in Central Eastern Europe. Hungary, Bulgaria, Romania and the Czech Republic have similar problems with the rule of law and corruption. They all benefit from the penal procedure against Poland. In this way, the EU’s negative attention is focused solely on Poland, which allows them to limit their reputational losses.

The European Commission has given Poland three months to reverse the controversial changes to the judiciary and, should that happen, withdraw the motion for the sanctions procedure from the Council. The new government led by Mateusz Morawiecki will use this time to limit the damage to Poland’s image abroad and explain the PiS government’s policy but, unless real concessions are made, it will not be able to stop the motion. The Commission’s conditions are clearly stated and Frans Timmermans, who is responsible for the rule of law, has strong support from Juncker. Morawiecki could, however, change the arithmetic of the Council and influence the result of the vote on EC’s motion —for it to be considered justified, it has to be backed by at least 22 states. The capitals (despite Hungary) have not as yet taken a stance on the sanction procedure, but they have so far unanimously supported Timmermans’ actions, which means that Morawiecki would have to persuade at least five countries to change their position.

26 February 2018
This text was published in Bullseye issue 71