Tussle in the EU: Poland’s challenge to EU law leaves Kaczynski cold ahead of future elections

  • The latest row between Warsaw and Brussels could negatively affect the PiS and thus Jarosław Kaczynski in potential snap parliamentary elections. 
  • However, the fear of further financial sanctions are overstated as the EU remains divided on using the rule of law conditionality mechanism. 
  • Under the rule of Kaczynski and the PiS, Poland will make it difficult for the EU to move forward with the European project. 
Jarosław Kaczyński
Jarosław Kaczyński, Deputy Prime Minister of Poland / AFP

Why is Kaczynski’s temperature cold? 

Answer: The present conflict between the EU and Poland could hurt Kaczynski’s coalition in the elections even though the long term consequences for Poland are unclear. 

On October 13 2021, the president of Poland’s ruling party Law and Justice (PiS), Jarosław Kaczynski, stated that he would quit his government post in order to be able to devote more time to his party. Parliamentary elections are set for 2023 and there is even a possibility of them being called before. Kaczynski has his eyes on the polls since the United Right coalition in which the PiS is the leading party is facing an unstable parliamentary majority. 

The coalition has been plagued by an internal crisis. In August, the PiS’s junior coalition partner, Agreement, pulled out of the coalition due to disagreements over a media law that would force the sale of Poland’s main independent broadcaster. The departure has compelled the PiS to enter into a provisional alliance with the right-wing party Kukiz’15, whose leader Pawel Kukiz is generally critical of the government.

The alliance is thus believed to be unstable. Moreover, the coalition faces the danger of alienating its voters if it does not adequately address the current row between Poland and the European Union. Warsaw and Brussels have been in a years-long conflict regarding Poland’s judicial reforms which the EU claims threaten the rule of law. In the past few months this dispute has been exacerbated by two key events. 

First, on October 7 Poland’s Constitutional Tribunal decided that Polish law can take precedence over EU law. The decision, which is in contradiction with the case law of the Court of Justice of the European Union (CJEU), has been severely criticised in Brussels. Second, on October 27, the CJEU placed on Poland the highest daily fine it has ever placed on an EU member state. The €1 million fine was issued due to Poland’s failure to suspend the Disciplinary Chamber of its Supreme Court pending a verdict of the CJEU regarding its legality. 

Von der Leyen had already refused to approve the country’s €36 billion Covid-19 recovery fund in response to the Polish government’s threat to judicial independence in the country and is now considering additional forms of financial pressure. These include depriving Poland entirely of its share of the Covid-19 recovery funds and funds from the EU budget by way of the rule of law conditionality mechanism.

Mentions of a Polish EU exit have also scared voters who do not want to see EU money go away. Since it joined the EU in 2004 Poland has received a net €127 billion from the European Union. It is expected to get €139 billion in funds as part of the current budget that is ending in 2027. 

It is unclear to what extent these threats are credible. The EU so far does not have the ability to expel any member state. Moreover, member states are severely divided on whether to use the rule of law conditionality mechanism. However,  as long as voters perceive that the dispute could lead to a reduction of EU funds, a continuation of the present conflict may hurt Kaczynski’s party in the elections. According to a recent poll, only 23 percent of respondents believed that the government should not compromise its stance even if it meant losing EU funds, a percentage far smaller than the support which the PiS now enjoys. 

Who is changing Kaczynski’s temperature? 

Answer: Although certain EU countries seem to be losing their patience with Poland, others are still reluctant to use the rule of law conditionality mechanism which is why Kaczynski is cold but not freezing.  

Should the conflict between Brussels and Warsaw further escalate, the next step would be for the EU to use the rule of law conditionality mechanism to withhold funds from the EU’s budget. Whether or not the EU should use this mechanism has divided EU member states and EU institutions. While France and Germany prefer dialogue, the Netherlands and Belgium have pushed for resolute action. The EU Parliament has also called on the European Commission to act in a consistent manner and has sued it for its failure to apply the rule of law mechanism. 

There are several reasons that the President of the European Commission together with the Franco-German axis has insisted on engaging in dialogue with Warsaw. First, the cooperation of all member states, including Poland, is needed for ambitious EU wide initiatives such as the green deal and ensuring regional security. The EU is struggling to find a way to satisfy Poland’s security concerns. Difficulties in security cooperation between the EU and Warsaw are evidenced by Poland’s recent rejection of Frontex’s involvement in the migrant crisis on Poland’s border with Belarus. 

Second, it is increasingly difficult for countries like Germany and France to isolate Poland without risking deeper anti-European sentiment. Poland’s prime minister has stated that threats of financial sanctions constitute blackmail and are unfair as other countries also challenge EU supremacy. Germany has always halted the approval process of European Commission policies while waiting for its Constitutional Court to review them. Michel Barnier, the EU’s former Brexit negotiator who is in the French presidential race says that France should have a carve out from European Court judgments concerning immigration because the matter remains a national competence. 

Third, while one may argue that this comparison is not very accurate as Poland’s challenge to EU supremacy is far more comprehensive than those just mentioned, it is true that there is increasing support for the right across many European countries. As anti-European sentiment and a greater desire for national sovereignty is not an issue unique to any one country, but rather a broader phenomenon, the EU must seek to overcome these political differences through dialogue. 

What is driving Kaczynski?

Answer: Kaczynski wishes to have enough power to transform Poland into a state that would be at odds with most of the EU’s values but that nevertheless would be part of it. 

In an interview he gave to a Polish tabloid, Kaczynski stated that he remembers that at the age of 12 he already had the desire to rule. Kaczynski founded the Centre Agreement party in 1990 which was later succeeded by the PiS that Kaczynski has headed since 2003. While Kaczynski has not always held public office when his party was in power, he has always had absolute control over it, picking his party’s candidates for both the Polish and European parliament. 

Moreover, Kaczynski’s ambitions do not seem to have dwindled even after three decades in politics. In 2019 Kaczynski declared “we deserved more” after his party won 44% in Poland’s parliamentary elections. This was the largest support that the PiS had ever won and it gave the party a working majority to pass laws. Nevertheless, it fell short of the majority that Kaczynski needed in order to change the constitution. Kaczysncki wishes to introduce sweeping reforms in Poland that would allow it to move fully away from communism and closer to the traditional values that he holds dear. 

In his autobiography published in 2016, Kaczynski speaks of his desire to build a new state apparatus in Poland. Kaczynski believes that the leaders of Poland’s democratic transition of 1989 to 1991 betrayed the cause by allowing communists to keep certain power if they gave them high positions in office.

Poland never uprooted the institutional structures left after communism and therefore radical change is still needed in order to establish political pluralism. Kaczynski’s battle against a post communist elite has led him to politicise the civil service, cultural institutions and public media in his favour. It may also be the rationale behind his attack on the independence of the judiciary. 

Moreover, Kaczynski was brought up in a household that cherished patriotic and religious values. As a result, Kaczynski is deeply suspicious of Brussels and liberal values. Nevertheless, it is important to note that Kaczynski has been raised with an even greater scepticism towards Russia. Therefore, despite all their disagreements, Kaczynski would prefer to see Poland inside rather than outside of the EU. 

What does this mean for you?

Answer: The present row between Warsaw and Brussels reflects that Poland will be a long term obstacle to the European project as long as the current government is in power. 

In their decision of the 7 October, the judges of Poland’s Constitutional Court stated that certain fundamental provisions of EU law were incompatible with Poland’s Constitution because they “allowed the union to act beyond the limits of competence transferred by the Republic of Poland in the treaties” and because they “illegally overrode the Polish constitution”. However, Poland’s Constitutional Court is widely perceived to lack independence. The PiS has attempted to replace judges by forcing them to retire early and has given greater power to the Ministry of Justice (which it controls) to appoint new judges. Therefore a political message can also be extracted from the court’s decision. 

For instance, by challenging Article 1 of the Treaty of the European Union (TEU), the decision implies that Poland under the current government does not wish to be part of the European project, a dynamic and open-ended process of European integration that includes not only the economic but also the social and political sphere. This would not be so problematic if Poland was fine with other countries moving to integrate further. However, Kaczynski stated in 2017 that “[Poland] cannot accept any kind of declarations about a two-speed Europe; this would mean we would either be pushed out of the EU or degraded to a worse category member. We must oppose this with all our might.” 

Moreover, by taking issue with Article 2 of the TEU, the decision confirms that the Polish government does not share the EU’s core values. In addition to threatening the rule of law, the PiS has undermined democracy by weakening the independence of the media and undermining individual rights since it came to power in 2015. These include LGBT rights which Kaczynski has stated are a threat to Polish identity and thus to the Polish nation and state. Such actions undermine the EU’s soft power internationally. Namely, it is increasingly difficult for the EU to call out foreign states for their disrespect of democracy or human rights without coming across as hypocritical. 

Finally, by mentioning Article 19, the Polish Constitutional Court essentially stated that the decisions of the CJEU are no longer supreme for Poland. Such a stance severely undermines the EU’s legal system. Courts in EU member states will find little reason to honour the decisions made in other member states if Poland does not do the same. In other words, unless Poland’s actions are effectively dealt with, a domino effect could easily follow where other member states restore the primacy of their law over EU law. 

The fact that Poland’s challenge to the EU has reached a critical point would not be nearly as concerning if the country were willing to leave the EU. It is arguably easier for the EU to deal with a third country rather than a member state that is not keeping its promises. However, Kaczynski has made it clear that there will be no Polexit since as much as eighty-five per cent of Poles wish to remain in the EU. This means that conflict with Poland will remain a long term challenge to a more deeply integrated EU as long as it is not effectively resolved or as long as there is no change of government in Poland.