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A breakdown of the rule of law in Poland from an upcoming ruling by its constitutional court and the parallel inflow of huge EU funds will prove a toxic mix with ramifications for the entire bloc – writes Piotr Buras.
The Polish government of the populist Law and Justice (PiS) party wants to have its cake and eat it.
On July 13, the government-subservient Constitutional Tribunal is expected to rule, at Prime Minister Mateusz Morawiecki’s behest, that decisions from the Court of Justice of the EU aimed at returning judicial independence to Poland cannot be applied in Poland. On the very same day, the prime minister will be heading to Brussels to convince Ursula von der Leyen that the European Commission should swiftly recommend giving Poland 24 billion euros from the EU’s Recovery and Resilience Facility – the 750-billion-euro mix of grants and loans designed to help lift European economies out of the post-COVID malaise.
A breakdown of the rule of law and the parallel inflow of huge EU funds is a toxic mixture. It cannot be tolerated.
The EU is not merely a community based on democracy and the rule of law; it is also an organisation which functions in a way advantageous to undemocratic governments and might even strengthen their authoritarian impulses. Hungarian Prime Minister Viktor Orban’s system could never have arisen so rapidly without the benefit of EU funds, which form an indispensable pillar of this system.
With the recovery fund, this paradox is becoming a fundamental problem, as its disbursements are subject to less EU verification than funds from the “traditional” EU budget. The idea is that this recovery money should be spent as quickly as possible, without unnecessary formalities, so that economies can rebound at pace. The risk is, therefore, that without due care, the new EU funds will strengthen “grand corruption” in some states. This means a state system based on discretion and the logic of political particularism privileging those in power, who will exploit these resources for their own needs and those of their associates. The spread of this model of government is destroying the EU from within.
Last week, the Commission decided to withhold its recommendation of the Hungarian national recovery plan. According to the Commission, Hungary lacks an efficient anti-corruption system that would guarantee the money is protected against fraud. Putting the new EU funds for Hungary on hold is a landmark and overdue decision. But the EU should immediately address similar risks also in other countries – most notably in Poland.
Poland’s partial public prosecutor
Since 2015, when PiS came to power, the demolition of the rule of law has been an ongoing process.
On July 7, the government proposed a new law that would directly target the main independent and government-critical TV station TVN by denying it an extension of its broadcasting license. Forcibly closing down the main pillar of the independent media in Poland, owned by US media company Discovery, would be a truly Orbanesque or Putinesque move.
In the context of spending EU money, the key concern is related to the complete politicisation of the National Public Prosecutor’s Office, as well as the removal of systemic guarantees of the independence of the courts.
Since 2016, the prosecutor’s office has been entirely controlled by the justice minister, who performs the role of Prosecutor General. His level of control over the whole system is unheard of in other European countries. He can nominate and dismiss prosecutors at will, decide on promotions and rewards, arbitrarily move cases from one prosecutor’s office to another, make personal interventions in how investigations are proceeding, and change the prosecutors leading them. It is no surprise, then, that the prosecutor’s office does not intervene when the ruling party’s interests are threatened or that it acts on the diktat of a minister ignoring court rulings.
The justice minister and government also have enormous powers over the judiciary, and the country’s judges are constantly being harassed and persecuted if they dare to criticise the politicisation of the judiciary.
This system poses a severe threat to the EU, as its anti-corruption system is based on cooperation with national institutions. When the anti-corruption agency OLAF uncovers a case of fraud, it transfers it to the national institutions, leaving them to decide whether formal charges should be made. The EU has no influence on this. When Justice Minister Zbigniew Ziobro’s party spent European funds earmarked for the climate on a party convention – and in doing so hired companies connected to his party’s politicians – a public prosecutor under the charge of the same Zbigniew Ziobro simply closed the investigation.
It is against this backdrop that Poland has decided not to join the new European Public Prosecutor’s Office (EPPO), which has a mandate to actually prosecute people. Poland is also one of the few member states that has not committed itself to guaranteeing any of the principles of transparency when it comes to spending from the recovery fund.
The expected verdict of the Polish Constitutional Tribunal not would not only add insult to injury; it would derail the whole system of the protection of the rule of law in the EU. If Poland decided to boycott the CJEU’s jurisdiction in matters related to the functioning of judiciary, there would be no systemic guarantees for the proper management of the EU funds, as the independence of the courts would not only be severely hampered but also devoid of any efficient control.
The timing of the possible of the ruling is by no means accidental. Two days later, the CJEU is likely to rule that the entire Polish disciplinary system for judges, fully controlled by the government, contradicts the EU principle of judicial independence and must be abandoned. The verdict by the Polish constitutional court is meant to prevent the application of such a decision. The fundamental concept of the primacy of EU law would be binned.
The risks posed by these developments could not be higher. And the EU would be well advised to learn a lesson form the past. It needs to act not when a major corruption or the collapse of the rule of law system has already happened, but it must do so early enough to prevent such a scenario from happening.
Since January 1, the EU’s “mechanism to protect the EU budget” has been in place, which was created precisely to address such a threat. The Commission should activate this mechanism without delay for both Hungary and Poland. In particular, denying the primacy of EU treaties over the national constitution must be seen as what it is – a serious threat to the EU’s financial interests.
The Commission should also recommend that the Polish recovery plan will only be approved if sufficient principles of transparency are ensured, along with precisely defined criteria for selecting projects, effective monitoring by independent institutions and the full implementation of CJEU rulings.
These measures will be essential in deciding what kind of Europe will be reconstructed as a result of the exceptional solidarity between EU countries. Will it be a Europe standing on the firm foundation of the rule of law and democracy? Or one further undermined by authoritarian undercurrents feeding off EU support?
Piotr Buras is the head of the Warsaw office of the European Council on Foreign Relations think tank.
This piece first appeared on Reporting Democracy, part of the Balkan Investigative Reporting Network (BIRN).