The future of the Polish "good change" in the context of the recent European elections



Although under the rule of the United Right, Poland’s foreign policy has strengthened Poland’s role as a regional leader and has made the voice of the Visegrád Group – and more broadly that of Central Europe – more widely heard within the European Union, the different vision of European integration and the future of the continent, advocated by Poland and Hungary, has led to certain tensions and differences of opinion with European institutions dominated by supporters of transferring further areas of sovereignty to Brussels.

 

The years 2015–2018 also saw a deepening of divisions in the EU regarding the approach to illegal immigration. Therefore, it may be assumed that the European Commission’s interference in Polish reforms could have been motivated, at least in part, by Poland’s new European policy and by the V4’s undermining of the German-French leadership of the EU. In 2019, after the May elections to the European Parliament (which did not significantly change the balance of power in Brussels), the Law and Justice leader Jarosław Kaczyński described this goal in his interview for Radio Wnet: We must strive to ensure that the Visegrád Group, which means the four countries – which might continue to expand – is something that cannot be ignored in the European Union, just as France or Germany cannot be ignored. I think that this is a kind of target we’re currently getting closer to. Therefore, contrary to what is said by some circles unfavourable towards the Polish right, Poland’s post-2015 foreign policy is not directed towards the disintegration of the EU or Poland’s exit from this union, because Poland’s membership in the EU – as well as NATO – and the continued existence of these organisations are considered by all major political forces in Poland, including the United Right, to be in the country’s absolute interest.

A case in point is the attempt to quell the dispute with the European Commission in December 2018, when the Polish parliament voted to amend the Supreme Court Act to allow the judges of the Supreme Court and the Supreme Administrative Court, who had previously retired due to the reduction of the retirement age from 70 to 65, to return to their posts. This was in response to a temporary decision of the Court of Justice of the European Union (CJEU), which in October 2018 ordered the Polish authorities to suspend the application of the amendment to the Supreme Court Act until it gave a final ruling on the matter. The European Commission’s complaint submitted before the CJEU concerned the reduction of the duration of the term of office of the current members of the Supreme Court and the Supreme Administrative Court in Poland. According to the Commission, on the one hand, by lowering the retirement age of the judges appointed to the Supreme Court, and by applying that measure to the judges appointed to that court before 3 April 2018 and, on the other, by granting the President of the Republic of Poland the discretion to extend the period of judicial activity of judges of that court, the Republic of Poland has failed to fulfil its obligations under the combined provisions of the second subparagraph Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union.[1]

According to the Polish authorities, under the European Treaties, neither the European Commission nor the Court of Justice has the power to challenge the Polish reforms, as the national justice system remains within the exclusive competence of each EU Member State. Moreover, the fact of making a reference to Article 47 of the Charter of Fundamental Rights of the European Union by the Commission and the CJEU is in clear contradiction with Protocol No 30 annexed to the Lisbon Treaty. It is known as the “British Protocol”, and Poland also joined this protocol at the time of signing the Lisbon Treaty. The Protocol states that the Charter of Fundamental Rights does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

Although in 2012 the Court of Justice of the European Union forced Hungary, in a similar case, to withdraw from a reform lowering the retirement age for judges, in the case of Hungary the aim was to reduce this age from 70 to 62, while the retirement age for civil servants was 65. In the case of Poland, the age of 65, at which the judges were to retire, is the retirement age for men in most occupations. In addition, Hungary, unlike Poland, has not joined the British Protocol.

It should also be underlined that as a result of the amendment introduced by the Polish parliament in December 2018, several judges active during the communist dictatorship, including those who passed judgments against opponents during martial law in the early 1980s, have resumed their work in the Supreme Administrative Court and the Supreme Court. One of the objectives of lowering the retirement age for judges was to clean up the judiciary of former communist judges. Therefore, Warsaw’s concession on the retirement age of the incumbent judges in the Supreme Court and the Supreme Administrative Court was significant.

Despite this, the European Commission has continued to press Poland for it to withdraw from other important aspects of the reform of the Supreme Court, the National Council of the Judiciary and the common courts. Consequently, the Commission has neither withdrawn its complaint before the CJEU nor has it withdrawn its Article 7 procedure initiated in December 2017 before the European Council, which is intended to lead to the determination by the other EU countries of a serious and persistent breach by Poland of the values referred to in Article 2 of the Treaty on European Union, namely, in this case, the principle of the rule of law.

The demands of the European Commission at the beginning of 2019 concerned both the Polish Constitutional Tribunal, [2]whose legitimacy as it stands is still being called into question by the Commission, as well as the reforms of the common courts[3] from July 2017, and the reforms of the National Council of the Judiciary and the Supreme Court, the adoption of which in December 2017 provided the Commission with a pretext to launch the Article 7[4] procedure against Poland. In March 2018, the European Parliament supported the initiation of the Article 7 procedure by the European Commission.[5].

However, since December 2017, there has not emerged a majority of four fifths of the Council members, as provided for in Article 7(1) of the Treaty on European Union, to determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Even if such a majority was to emerge, it would be difficult for the Commission to obtain unanimity from the other EU countries, as mentioned in Article 7(2) of the Treaty, to establish a serious and persistent breach of the rule of law by Poland.

Therefore, any pressure from EU institutions, including successive resolutions of the European Parliament (referring not only to the reforms carried out by the United Right, but also to other areas under the exclusive competence of each Member State, such as the issue of Poland’s more restrictive approach to abortion than that of most EU countries), cannot force the government of Mateusz Morawiecki and the Polish parliament to pull out their “good change” reforms. Attempts are also made to circumvent the requirements of Article 7 of the Treaty on European Union by making European funds dependent on the assessment of the rule of law in individual member states. This would allow the European Commission to exert strong pressure on selected countries, including Poland; however, such a mechanism is yet to be introduced.

However, the opposition could reverse these reforms after its potential victory in the parliamentary elections in October 2019, and the presidential elections in the following year. In its programme, the Civic Platform (PO) – the largest Polish opposition party – promises to restore the rule of law in Poland and end any conflicts with the EU.[6]. It is therefore to be expected that if the PO coalition wins the next elections, it will reverse the judicial reforms to return to a situation in which the judiciary is the only authority which not only controls the other two (legislative and executive), but also controls itself, which in the eyes of the European Commission and some of the opposition is to guarantee its full autonomy, and which, in the opinion of the United Right, undermines the principles of democracy and balance guaranteed by the tri-partite division of power.

If the Civic Platform wins the elections, it would also be probable that Poland would be less active in Central Europe, especially as part of the Visegrád Group, because PO believes that Western European countries – discouraged by the attitude of the Law and Justice party – are accelerating the establishment of new structures based on the euro zone. Germany and France are officially promoting the idea of a separate “eurozone budget”. Poland is therefore threatened with marginalisation and must return to the EU's decision-making centre[7]. The example of the city of Warsaw, where the elections in October 2018 were won by the Civic Coalition (KO), which was created by the Civic Platform and the Modern party, also shows that Poland governed by such or possibly wider coalition could cease to be faithful to its own Christian traditions not only in the sphere of the presence of the Church and Catholicism in public space, but also in relation to commonly professed values. The LGBT+ Charter, signed in February 2019 by the Mayor of Warsaw Rafał Trzaskowski (PO), clearly seeks to transform society in line with the demands of the LGBT lobby, as has been the case in recent years in Anglo-Saxon and Western European countries, including through the schooling of children and young people in a world which no longer features a single standard family model.

Therefore, at the Law and Justice party's convention, which was held in February 2019, Prime Minister Mateusz Morawiecki said: The party’s first term of office is coming to an end. However, in order to succeed, we have to win the elections to be able to enter the second term on a wave of momentum. This will allow us to carry out our plan and preserve all our achievements. The leader of the Law and Justice party, Jarosław Kaczyński, said a similar thing in mid-2017, stating that his party needs two or three terms of office in order to eliminate post-communism in Poland. Will the achievements of the United Right after the first four years in government be convincing enough for the voters for the second time to give absolute majority in the Sejm to the coalition headed by the Law and Justice party? In the Polish proportional voting system to the lower house of parliament, the United Right will face a more difficult task in 2019 than the Hungarian Fidesz and KDNP coalition in 2014 and 2018.

The United Right is in a slightly worse position than the Fidesz and KDNP coalition also for another reason. At a time when the European Union is dominated by federalist, pro-immigration and – to put it simply – “liberal left” convictions, and while the leaders of Poland and Hungary talk about the Europe of nations and the need for “cultural counter-revolution”[8], of particular importance is Poland’s close alliance with the United States. Donald Trump’s victory in the US presidential election in 2016 was not without significance from the point of view of the United Right in Poland, as in many respects it is ideologically closer to the incumbent president of the USA than to the president of France or the German Chancellor. The community of ideas and interests is expressed in a close military alliance, in new contracts for imports of American gas, in the pressure exerted by Trump’s administration on Germany to abandon the Nord Stream 2 pipeline, etc. There is another side to the coin: since Russia is considered by Poland to be the main threat to its security, Warsaw cannot afford to be in conflict with both Brussels and Washington at the same time. As a consequence, in June 2018 it was necessary to withdraw from the amendment to the Act on the Institute of National Remembrance not so much under pressure from Israel as from the United States. Poland’s concession towards the European Commission and the Court of Justice in December 2018 on the retirement age of judges of the Supreme Court and Supreme Administrative Court may have been dictated by the desire to improve relations with Brussels not only to save the EU from a serious crisis, but also to avoid becoming too dependent on the alliance with Washington. This is particularly important in the context of the US Justice for Uncompensated Survivors Today (JUST) Act, which requires the US Department of State to prepare a report on the restitution of the property of Holocaust survivors seized by Nazi Germany during World War II. In the context of Polish-American relations, the provision calling for the restitution of heirless property for the benefit of Holocaust survivors may be particularly hazardous. There are fears that based on this provision, American Jewish organisations may put forward considerable claims, unjustified from Poland’s point of view, demanding support from the American administration.

When Barack Obama was President of the United States and Budapest was under simultaneous fire from Brussels and Washington on the matter of its own reforms and constitutional changes, it was easier for Hungary to resist pressure because of its better relations with Russia than is the case with Poland, and because today’s Russia is not considered by Hungarians to be a direct threat to their country. This does not mean that Hungary is not fulfilling its obligations under NATO and the EU, for instance, when it comes to sanctions against Russia after the annexation of Crimea. However, this gives the government of Prime Minister Viktor Orbán a greater room for manoeuvre, which was clearly demonstrated in early 2014 by the signing of an agreement with Russia to expand the only Paks nuclear power plant in Hungary. This fact also forces Brussels and Washington to be more cautious in relation to Budapest.

This situation means that a change of government in Washington may in the future result in increased pressure on Poland to reverse its reforms. Unless, in the meantime, the new European Commission, which will be appointed after the May elections to the European Parliament, will not (unlike the Juncker Commission) continue to extend its competences by means of fait accompli and will return to strict compliance with the existing European treaties. In other words, the future European Commission and the next European Parliament could start anew to observe the principles of the rule of law and democracy at the European Union level, which has been the aim of Poland and the other Visegrád Group countries for many years.

 

Olivier Bault 

 


[1] Order of the President of the Court of Justice of 15 November 2018 (Expedited procedure) in Case C-619/18

[2] See the first EC Recommendation of 27 July 2016 (http://europa.eu/rapid/press-release_IP-16-2643_en.htm) and the second EC Recommendation of 21 December 2016(http://europa.eu/rapid/press-release_IP-16-4476_en.htm).

[3] See the third EC Recommendation of 26 July 2017 (http://europa.eu/rapid/press-release_IP-17-2161_en.htm).

[4] See the fourth EC Recommendation of 20 December 2017 (https://ec.europa.eu/poland/news/171220_rule_of_law_pl)

[5] European Parliament press release of 1 March 2018 (http://www.europarl.europa.eu/news/pl/press-room/20180226IPR98615/parlament-wspiera-podjecie-przez-ue-dzialan-w-obronie-panstwa-prawa-w-polsce).

[6] https://platforma.org/program/platforma-dla-europy-i-swiata

[7] https://platforma.org/program/platforma-dla-europy-i-swiata

[8] Viktor Orbán and Jarosław Kaczyński discussed the need for a “cultural counter-revolution” in Europe during the debate at the Economic Forum in Krynica in September 2016 (https://wpolityce.pl/polityka/307451-polska-i-wegry-oglaszaja-kontrrewolucje-kulturalna-debata-kaczynski-orban-w-krynicy).