Divisions within Poland’s ruling coalition mean that, without opposition support, Poland’s right-wing government may not be able to pass the legislation required to secure the country’s access to EU pandemic recovery funds, writes Aleks Szczerbiak. But the junior governing party leaving or being forced out of the government would mean a minority administration unable to govern effectively for almost a year leading up to next autumn’s parliamentary election.

The EU funding issue has once again moved to the top of the Polish political agenda. Poland’s government, led by the right-wing Law and Justice (PiS) party, has been in a long-running dispute with the EU political establishment over so-called ‘rule-of-law’ issues since it came to office in autumn 2015, 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 institutions of bias and double standards, acting illegitimately beyond their legal competencies, and using the ‘rule-of-law’ issue as a pretext to victimise Law and Justice because the party rejected the Union’s liberal-left consensus on moral-cultural issues which it felt undermined Poland’s traditional values and national identity.

As part of this dispute, the European Commission delayed approval of Poland’s national recovery plan (KPO), an operational programme necessary for the country’s 35 billion euro share of the EU’s coronavirus post-pandemic recovery funds to be released, until Law and Justice implemented a July 2021 EU Court ruling that it must 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. However, this has not led to the expected breakthrough and since then Commission officials have made it clear that, in their view, closing down the disciplinary chamber was not in itself sufficient to fully satisfy all the conditions set out in the recovery plan’s rule-of-law ‘milestones’ for unfreezing the EU post-pandemic funds.

Contesting the status of judges

All of this led to a significant escalation in the conflict between the EU political establishment and the Law and Justice government during the summer as Warsaw pledged to take a hard line and not engage in any further dialogue with, nor make more concessions to, the Commission on this issue. Law and Justice leaders insisted that Poland had shown maximum goodwill in upholding its side of the bargain by enacting legislation that met the Commission’s demands.

They accused Brussels of moving the goalposts and introducing conditions that were impossible to implement, arguing that its actions were politically motivated and aimed at boosting support for their Polish opposition allies ahead of the next parliamentary election scheduled for autumn 2023. Indeed, some commentators argued that the ‘milestones’ may have been formulated in a deliberately vague way to provide the Commission with considerable room for manoeuvre to interpret whether or not they had been implemented.

One of the main points of contention was that the Commission said that Poland had to automatically re-instate the judges who were previously suspended by the supreme court disciplinary chamber. The government’s supporters argued that the ‘milestones’ stipulated 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 envisaged 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 insisted that Polish judges should have the right to challenge their colleagues’ status or decisions without being subject to disciplinary action.

The key issue at stake here is really whether Polish judges can be disciplined for questioning the status and legitimacy of their 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, argue 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 say that allowing every judge to freely challenge their colleagues’ status and rulings with impunity would lead to total anarchy within the Polish legal system.

Warsaw seeks a compromise

However, in a further shift of position, during the last few weeks Law and Justice has adopted a much more conciliatory tone and indicated a willingness to be more flexible with, and possibly even concede further ground to, Brussels in the hope of reaching an agreement that will unblock the recovery funds. The Law and Justice leadership appears to be getting increasingly nervous that if Poland fails to secure the post-pandemic funds then the country’s economic situation will worsen, with public investment plans drying up and higher interest rates for government debt making state borrowing even more costly.

Moreover, in spite of Law and Justice’s attempts, as one of its main political attack lines, to portray its opponents as submissive to, and working in collusion with, Brussels to undermine Poland’s sovereignty and independence, a November poll conducted by the IBRiS agency for the ‘Rzeczpospolita’ newspaper found that 64% of respondents blamed the government and ruling parties for the potential loss of EU funds compared with only 17% who cited the Commission and 12% the opposition. The freezing of the funds has thus become one of the opposition’s main talking points and Law and Justice is concerned that it could play a major role in the upcoming election campaign.

As a consequence, Law and Justice prime minister Mateusz Morawiecki, a leading figure in the governing camp’s ‘technocratic-modernising’ wing that favours a more conciliatory approach with the EU political establishment, appears to have convinced party leader Jarosław Kaczyński to greenlight a partial re-set of Warsaw’s relations with the Commission and for Poland to seek to negotiate a possible compromise deal. Although he does not hold any formal state positions, Kaczyński exercises a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities.

One possibility would be to clarify, or even extend, the so-called ‘test of independence and impartiality’, a new procedure established by Duda’s supreme court amendment law. This gives defendants the ability to request that a court examine objections to a particular judge in their case but does not guarantee other judges the right to challenge their colleagues. Another option would be to amend the so-called ‘gagging law’ (ustawa kagańcowa) passed in 2019, which justice ministry disciplinary officers are using to act against judges who question their colleagues’ status.

No majority for new legislation?

However, the balance of power within the ruling coalition means that, without seeking support from the opposition, Law and Justice may not have a parliamentary majority to pass any legislative changes that may be required to satisfy the Commission. The problem here is that Law and Justice’s junior governing partner – the right-wing conservative ‘Solidaristic Poland’ (SP) party led by justice minister and vocal Eurosceptic hardliner Zbigniew Ziobro, who has introduced many of the government’s most controversial reforms – has enough parliamentary deputies to deprive the ruling party of its majority.

Ziobro and his allies argue that the EU political establishment is behaving dishonourably and should not be negotiated with. They have declared explicitly that they will oppose any further concessions to Brussels which, they argue, will lead to chaos within the Polish justice system.

Indeed, ‘Solidaristic Poland’ is calling upon the government to follow through on its earlier, very tough rhetoric and start vetoing areas of EU decision-making that require unanimity in the European Council (such as taxation and foreign affairs). The government argues that its leverage here is limited as there are currently no measures on the Council agenda where it could exercise such a veto, except for those that relate to support measures for Ukraine which Poland favours.

The situation is further complicated by the fact the opposition parties have tabled a parliamentary motion of no-confidence to dismiss Ziobro. The justice minister has already survived several of these but this time the situation is more complicated for the governing camp because right-wing anti-establishment rock star-turned-politician Paweł Kukiz and his two allies in the ‘Kukiz’15’ caucus, who normally support the government, have announced that they will not vote for Ziobro. They accuse him of dragging his feet in implementing a proposal to establish local magistrates, one of their flagship policies.

On the other hand, since the last attempted no-confidence vote Law and Justice has gained the support of the three members of the small Polish Affairs (PS) parliamentary caucus which, with the backing of pro-government independents, should ensure that the no-confidence motion is voted down as long as the rest of the governing camp can maintain voting discipline.

A minority government?

Given the level of EU funds involved, the political stakes here are very high and create important political-strategic dilemmas for Law and Justice. Indeed, all of this has revived speculation that if Ziobro and his supporters block a further agreement with the Commission, Law and Justice could try and come to some kind of understanding with sections of the opposition, notably the agrarian-centrist Polish Peasant Party (PSL), to pass further judicial reform legislation that would satisfy Brussels. Indeed, although Law and Justice has formally ruled out having any such plans, there is even some talk that Ziobro and his allies might leave or be thrown out of the government, thus paving the way for the formation of a minority administration.

However, the opposition has no interest in making life easier for the government and the most likely scenario is that they will try and stymie Law and Justice’s plans but in a way that they cannot be held directly responsible for Poland failing to secure the recovery funds. Moreover, although Polish experience suggests that it is possible for a party to govern for a considerable period of time as a minority administration (to replace a government an opposition has to secure the passage of a so-called ‘constructive vote of no-confidence’ in favour of a specific alternative prime ministerial candidate), Law and Justice knows how debilitating it will be if it finds itself unable to govern effectively.

Such a scenario might be more appealing if the Law and Justice government was in a solely campaigning, rather than governing, mode during the last couple of months leading up to an election. But with the government facing a series of national and international crises, and nearly a year of the current parliament left to run, such a prospect appears very unattractive – and, therefore, extremely unlikely unless the governing camp’s internal conflicts escalate to such an extent that it starts to implode.

Note: This article first appeared at Aleks Szczerbiak’s personal blog. It gives the views of the author, not the position of EUROPP – European Politics and Policy or the London School of Economics. Featured image credit: European Council