Like many destructive conflicts, Warsaw’s war with Brussels was never supposed to happen.
A former Polish diplomat who followed rule of law issues said that when the nationalist Law and Justice (PiS) party was presenting its first judicial reforms after winning power in 2015: “The aim wasn’t to get into a fight with the European Commission.”
Rather, the party’s battle to almost immediately exert control over the judicial system was a domestic political initiative with its roots in PiS’s previous and brief 2005-2007 stint in government. Party leader Jarosław Kaczyński blamed the courts for undermining his radical political program with pettifogging separation of powers ideas that undermined what he saw as his party’s democratic right to rule thanks to winning elections — a concept he called “legal impossibilism.”
In its 2015 election program, PiS claimed that courts were politicized, corrupt, ineffective and dominated by communist-era judges and called for deep reforms to the justice system.
“Without a deep reform of the courts, fixing the country is very difficult, as this is the last barricade, the last level of decision-making in many different cases,” Kaczyński said in a 2018 interview.
“Subordinating the courts is the key to having the state apparatus that wouldn’t undermine PiS politics,” said Anna Wójcik, co-founder of the Wiktor Osiatński Archive, which monitors the rule of law in Poland.
But the target was domestic control, not unleashing a continental war.
The problem for PiS was that, as a member of the European Union, Poland’s courts are part of a pan-European justice system, and the changes it was making quickly came to the attention of Brussels.
One of the first was the political capture of the Constitutional Tribunal, a top court that’s meant to decide on the compliance of the law with the constitution. Rather than waiting for sequential retirements of existing judges, PiS and President Andrzej Duda illegally refused to seat three judges elected to the tribunal and replaced them with three seen as closer to the ruling party. That sparked a conflict with the European Commission, the European Parliament and the Council of Europe, a non-EU body.
It’s that court, now led by Julia Przyłębska, a close ally and personal friend of Kaczyński, that issued a bombshell ruling that the Polish constitution has primacy over some parts of the EU Treaties, setting off the current clash with the EU. That’s something that was fiercely debated when the European Parliament grilled Prime Minister Mateusz Morawiecki earlier this week, and which will be up for discussion by EU leaders during their summit on Thursday and Friday.
Critics say that over the last six years, PiS and its political allies have also taken over the public prosecutor’s office, exerted growing authority over ordinary courts, taken control of the body that’s supposed to nominate judges, and set up a new disciplinary body in the Supreme Court that the Court of Justice of the EU ruled is not compatible with EU law.
Despite the growing clamor of protests from EU institutions, the Polish government pressed forward. It had the example of Hungary, its close ally, where the EU had failed to stop the country’s slide into an authoritarian semi-democracy under the rule of Prime Minister Viktor Orbán.
“For all these years, PiS has seen that it can get away with anything. There might be problems, but eventually it is able to push through the majority of things,” said Piotr Buras, the head of the European Council of Foreign Relations in Poland, a think tank.
Orbán had what he called his “peacock dance,” where he would beguile his European partners and then offer mainly symbolic retreats on rule of law and democracy issues.
EU institutions were largely toothless, as for a long time Brussels wasn’t able to do much about Poland’s rule-of-law problems; it had the world’s steepest decline in democratic standards over the last decade, according to a report by V-Dem of the University of Gothenburg.
The Commission did open an Article 7 procedure in 2017, something that theoretically allows for an EU country to lose its voting rights for a serious breach of the bloc’s principles. But a mutual defense pact between Warsaw and Budapest means it will never get the unanimity it needs to be approved.
“The Article 7 procedure didn’t impress the PiS government because it’s only a procedure of political dialogue and this one can last forever,” said Wójcik, adding that the Warsaw government was similarly unmoved by the Commission opening four infringement procedures against Poland.
The government in Warsaw also talked a good game, explaining over and over again at different fora that its judiciary reforms were essential, copied solutions in other countries and that it wasn’t breaking EU rules.
Analysts point out that one of the main reasons Kaczyński appointed Morawiecki, an English-speaking former international banker, as prime minister was to navigate the shoals of rule of law issues with Brussels.
Together with his top aide, Europe Minister Konrad Szymański, they attended Council meetings aiming to defang the increasing alarm from other EU countries.
Change of tone
But now the Polish government faces trouble.
The EU Court of Justice is ramping up its rulings against Poland, which could carry the sting of steep fines. Other European justice systems are starting to question things like Polish arrest warrants out of concern that people won’t have access to a fair trial.
The final catalyst was the Constitutional Tribunal’s ruling on the precedence of Polish over EU law.
Now the EU has woken up, and Brussels finally has a weapon — the €36 billion in pandemic grants and loans that Poland needs to recover from the pandemic, and that PiS needs to help it win the next election set for 2023.
Patryk Jaki, an MEP who helped formulate the judicial system reforms, said he “didn’t expect” that the rule-of-law conflict would escalate to such a degree.
“At first Kaczyński didn’t fear Brussels’ reaction because he had no reason to,” said Wójcik. “Now big money is at stake.”
But for Kaczyński the calculation is as much about power as it is about cash. If he retreats in the face of EU pressure, he undermines the narrative that he’s the unrelenting defender of Poland’s national interest, opening himself to an attack on the political right from his coalition partner Zbigniew Ziobro, the powerful justice minister who helped push through the reforms and who has staked out a strongly Euroskeptic position.
On the left, Donald Tusk, the former Polish prime minister and European Council president, and now leader of the main opposition party, is waiting to pounce.
That’s why both Kaczyński and Morawiecki are insisting that judicial system reforms will continue — even if Warsaw is saying that it will give some ground by eliminating the Supreme Court’s disciplinary chamber, albeit at an unspecified time.
In a tough speech to the European Parliament this week, Morawiecki fiercely defended the ruling of the Constitutional Tribunal, saying Poland would not allow EU courts to interfere in national judiciary systems.
“No sovereign state can agree to such an interpretation. To accept it would mean that the Union ceased to be a union of free, equal and sovereign countries,” he said.
A fight to the end
That means a fight that began thanks to Kaczyński’s domestic political concerns is unlikely to end anytime soon — despite it now engulfing the EU.
“I think this discussion won’t be over tomorrow or the day after tomorrow,” a senior Polish diplomat said.
For now, both sides are digging in.
“The only good ending for this in line with the rule-of-law is for the EU institutions to back off from its illegal usurpation,” said Polish Deputy Justice Minister Sebastian Kaleta, a member of Ziobro’s United Poland party
“The space for dialogue is narrowing,” Commission Vice President Věra Jourová, who is responsible for the rule-of-law portfolio, said earlier this week, adding: “There must always be space for dialogue, but dialogue where we respect each others’ voices and where the willingness to have dialogue is not taken as a weakness by some.”
That leaves very little room for compromise.
“This conflict can still be calmed down,” said a senior Polish official. “We’re still talking about [mutual concessions], on both sides there are people who want an agreement but there are fewer and fewer of them,” they added.
Asked about how the crisis could end, another senior Polish official said: “Endgame … looks like they’ve stopped playing poker and started to play Russian roulette.”
Lili Bayer and Maria Wilczek contributed reporting.