Europe’s post-pandemic future will be decided in Poland

Piotr Buras is a senior policy fellow and head of the Warsaw office of the European Council on Foreign Relations. 

WARSAW — Leaders across the European Union might think they can breathe a sigh of relief — the way now looks clear for the EU’s groundbreaking effort at economic recovery.

After the German Constitutional Court rejected a domestic challenge to the bloc’s coronavirus recovery fund last week, an agreement this week between the Polish government and an opposition party seems to have removed a political roadblock.

But the real danger to the EU was not what would have happened had the recovery fund foundered in Warsaw. It’s what will happen now that it seems increasingly likely to come into effect.

At first glance, it is puzzling that Poland was a potential stumbling block for the €750 billion recovery fund. To be sure, the right-wing government of Jarosław Kaczyński’s Law and Justice party is not known for its EU enthusiasm. Nevertheless, Poland is set to become one of the main beneficiaries of the fund, receiving €58 billion in grants and loans.  

The fund’s adoption was hailed as a huge success by Prime Minister Mateusz Morawiecki, who intends to spend the money on a reform project called the “New Deal for Poland.” But the recovery fund set off a power struggle within the ruling coalition in Warsaw.

Zbigniew Ziobro, Poland’s hard-line minister of justice and the leader of a junior coalition party, vehemently opposes the ratification of the fund, claiming it threatens Poland’s sovereignty. His argument: it paves the way for the federalization of the EU. Without his votes, the government struggled to get the legislation through parliament. And because the recovery fund requires the acceptance of every country in the EU, that created the danger of sinking the whole thing.

For now, that seems to have been averted. On Tuesday, the opposition Left party announced it had come to an agreement with the government, giving it the majority it needs. But while it’s tempting to dismiss this as an irritating example of the EU being taken hostage by petty domestic politics, the real challenge is just rearing its head.

Poland’s problems with the rule of law don’t just raise serious doubts about whether the money from the fund will be well spent; it raises the specter that the money provided by the EU will be used to cement the Law and Justice’s party increasingly autocratic rule.

In an open letter to the government published on Tuesday, a broad coalition of Polish nongovernmental organizations criticized the government’s work on the national recovery fund for lacking transparency and ignoring the public consultations required by the EU.

But the real problem is a lack of judicial oversight.

Kaczyński’s government has a powerful hold on the judiciary. The highest court of appeal for cases on the management of EU funds lacks independence, according to the Court of Justice of the European Union (CJEU). There is mounting pressure on judges across the country.

The problem is getting worse. Even as the ruling coalition squabbled over the recovery fund, it was taking steps to reject the supremacy of EU law. On Wednesday, Poland’s Constitutional Tribunal will assess if the CJEU’s right to control the independence of the judiciary violates the Polish constitution.

The tribunal is controlled by the government, packed with Law and Justice politicians and loyalists. The chief justice is a personal friend of Kaczyński. The government’s goal is obvious: to introduce a constitutional barrier barring the implementation of rulings on judicial independence by the CJEU.

Should this come about, last year’s controversial decision by the German Constitutional Court challenging the supremacy of EU courts would pale in comparison. The Polish decision would effectively deny the role of the CJEU and the European Commission as protectors of the treaties and rule-based legal order. The fundamental EU principle of mutual trust — which requires access to independent courts in all member countries — would no longer hold true.  

This must not be allowed to take place. Poland is a pivotal country for the EU, and it is in the entire bloc’s interest to help it succeed.  

The need to approve the pandemic recovery program cannot come at the cost of the EU legal order and Polish democracy.

In December, the EU introduced a mechanism that would block the payment of recovery funds for violations of the rule of law that endanger the bloc’s financial interests. Today, these risks could not be more obvious. Would-be strongmen like Kaczyński and Hungary’s Viktor Orbán are preparing to challenge the EU system. If the EU fails to use its financial resources to stop the spread of autocracy, its post-pandemic recovery will at best become a Pyrrhic victory.



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