Impending European Union interference in the Polish election?

Will the EU fulfil its agreement with Poland after Poland has finally done its part? Will it release the recovery funds to aid Poland’s battered economy? Or will it starve Poland till the upcoming election?

The Polish parliament recently adopted a law that the European Commission had indicated would fulfil their judicial milestones. It was unsure whether President Duda would veto the law. Instead he used his presidential authority to send the law to the Constitutional Tribunal for examination.

President Duda’s move while unusual would ordinarily have appeared like a smart copout. The judges of the Constitutional Tribunal have all been nominated by the PiS majority in the current and previous Sejm. They will likely interpret the constitution as permitting the law. This would largely silence opposition from hardline Eurosceptics in the government and those in the Supreme Court opposed to the reforms. While there are some judges on the court closer to the hardline Eurosceptics, they form almost certainly only a minority. The majority will likely approve the law thereby requiring Duda to sign it under the constitution.

The biggest problem however, seems to be an existing conflict that recently broke out within the Constitutional Tribunal between its president Julia Przyłębska and its vice-president Mariusz Muszyński. Ironically, judge Muszyński is 1 of 3 judges on the 15 member court whose status is contested by much of the opposition. Yet, he has transformed himself into one of the government’s greatest (and only) opponents on the court. Now he and several other judges have challenged President Przyłębska’s position arguing her term as president is up. She’ll need some of them for the quorum for an en banc session.

This is a complicated issue, but the question remains whether judges opposed to President Przyłębska’s continued leadership will allow this to become a scandal that paralyses the Tribunal and the long hoped for resolution in the conflict with the EU. Hopefully they won’t let that happen.

But, even if it doesn’t, the CT upholds the law and Duda signs it, some are suggesting Poland still won’t receive its recovery money, because the European Commission has now launched proceedings before the CJEU against the Constitutional Tribunal. This would then render its judgement invalid and by association taint the law and thus make its results not count… or something. Renew Europe (the Liberal Europarlement faction) has called for the European Commission to not honour its agreement with Poland. Truly shocking.

If the law is held to be constitutional, signed by the president and properly enacted, then the Polish government will have fulfilled the judicial milestones as demanded by the European Commission. That the law that allows for the milestones to be met is reviewed by the Constitutional Tribunal is rather incidental with regards to Poland’s agreement with the EU.

The European Commission only indicated that they would pursue action against the Constitutional Tribunal after President Duda had already sent the law to the CT for its constitutionality to be checked. Therefore, this decision by Duda cannot be fairly used to ignore what the law will achieve, fulfilling the milestones. It would have meant the Commission withheld crucial information before Duda made his decision of whether to sign or veto the law.

If the Constitutional Tribunal is able to put aside internal differences and quickly approve the law and Duda signed it, then Law and Justice will have appeared reasonable and moderate towards moderate voters. They will appear moderate regarding both the EU and judicial reforms as well as dedicated to ensuring that Poland can get the necessary recovery funds while dealing with the post-Covid situation and the war with Russia.

If the Commission uses their (extremely) belated decision to go after the Constitutional Tribunal as some kind of technicality to argue the milestones have been fulfilled the wrong way, they will appear and in fact be dishonest and manipulative, denying Poland key recovery funds while it bears so much of the burden of helping Ukrainian refugees.

It would mean that the European Commission embraces a (selective and) ideological interpretation of the rule of law and weaponizes it during a time of international crisis that calls for solidarity. This could easily increase opposition to the EU in Poland. Ziobro has already seized on this to claim this is part of an EU plot to undermine member states.

The more moderate minister for EU affairs, Szymon Szynkowski vel Sęksaid however claimed the move was no surprise and wouldn’t impact the recovery fund agreement. Let’s hope he’s right.

Perhaps the action was indeed expected. Duda must likely have been aware of this if that’s the case. Apparently he didn’t think it posed a risk to sending the law to the Constitutional Tribunal. If this is true than Renew Europe’s attempt to take advantage of the situation will likely get ignored by the European Commission like many similar attempts in the past.

If the EU doesn’t release the funds, thereby hurting the Polish economy before the upcoming parliamentary elections, this would be a grave form of illegitimate foreign interference in a national election, a misuse of the EU’s funds to undermine democracy.

Some radical activists like Jakub Jaraczewski were in fact assuming the EU’s offer to Poland was a trick to get the coalition to split over it. Such interference in national politics is fair game now. It’s what the rule of law means to these people I guess.

While it did technically divide the opposition it did not lead to any breakup or significant inner conflicts. PiS helped defeat yet another vote of no confidence against Minister of Justice Ziobro from their junior party United Poland. They were able to pass the law without it splitting them. Duda didn’t veto it. If he hasn’t unleashed a breakdown in the Constitutional Tribunal, no one in the government has messed this up.

So, was it all just a ruse by the EU? Can it redefine agreement based on totally new claims? Does the EU have honour? Or it is trying to undermine national governments?

Ramon Giralt

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