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This paradox is becoming the fundamental problem connected with the Reconstruction Fund currently being launched.
One expression of this dilemma which the EU is currently facing and which it will need to solve in order to secure its future is seen in Slovenia’s assumption of the EU presidency. Prime Minister Janez Janša is a political ally to Poland’s Jarosław Kaczyński and Hungary’s Viktor Orbán. He is taking on independent judges and prosecutors, curbing press freedom and, during the ceremony to take over the six-month presidency, he declared his full support for the laws passed by the Hungarian parliament which discriminate against sexual minorities. The head of the newly formed European prosecutor’s office, tasked with fighting corruption and the fraudulent use of EU funds, spoke of the “high risk” associated with these phenomena in Slovenia. Janša ignored the requirement to send Slovenian prosecutors to this European office, making it impossible for it to function in that country. In spite of this the European Commission decided to recommend member states transfer €2.5 billion from the unprecedented solidarity scheme created this year — the Reconstruction Fund aimed at fighting the economic impact of the pandemic. Poland is set to receive nearly €24 billion to 2025 (independent of funds from the EU budget).
This is not the first time that the required guarantees and controls have not been applied when disbursing EU funds to governments prepared to use them not only for development but also to strengthen oligarchic or authoritarian structures. Orbán’s system could never have arisen so rapidly without EU funds, which form an indispensable pillar of this system, both directly (by way of enormous corruption) and indirectly (by improving the standard of living of citizens). The high risk of similar phenomena occurring in Slovenia is currently particularly high but is especially so in Poland.
The Reconstruction Fund is increasingly accessible but its disbursements are subject to less EU verification than funds from the “traditional” EU budget. This is because it is important to spend the money as quickly as possible, without unnecessary formalities, so that the economy can rebound at pace. Unlike with “normal” funds, there will be no detailed checks of all invoices and the EU will not precisely define the criteria or demand fully transparent tenders. Above all the European Commission will want to ensure there are results (e.g. a renovated hospital); the precise manner in which they are achieved, who made money on them and whether everything adds up on paper will be of less concern. This approach is understandable in economic terms. However, it is based on the assumption that the governments distributing these funds are also guided solely by economic matters and are determined to fight irregularities. This assumption unfortunately borders on naivety.
The biggest threat to the EU’s interests is not currently “normal” corruption, where some EU funds end up in the hands of dishonest civil servants, corrupt politicians and well positioned companies. The biggest threat is that EU funds will strengthen “big corruption”, meaning a state system based on discretion and the logic of political particularism privileging those in power and exploiting resources for their own needs and those of their associates. This clientelist system is an inevitable consequence of the breach of the rule of law and the government’s appropriation of state institutions. The spread of this model of government is destroying the EU from within.
In Poland the most important role in this process is played by the complete politicisation of the public prosecutor’s office and the removal of systemic guarantees of the independence of the courts. Since 2016 the prosecutor’s office has been entirely controlled by the minister of Justice, whose level of control over it is unknown in all 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 of 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. Along with control of the courts, the permanent restrictions of access to public information (e.g. access to the files of closed investigations in the prosecutor’s office) and the marginalisation of social organisations, a prosecutor’s office functioning in precisely this way means that the spectre of “easy” EU reconstructions funds being used to strengthen “big corruption” structures has become a realistic scenario.
This is because the belief that EU institutions will effectively investigate and prosecute misdeeds is based solely on illusions. This is not only caused by the construction of the fund and the EU’s determination to disburse its funds at any cost to stimulate economic recovery — no less important is how the EU’s anti-corruption system functions; and it is above all based on cooperation with the national institutions. When the OLAF anti-corruption agency discovers a case it transfers it to the national institutions, leaving them to decide whether formal accusations will be made. The EU has no influence on this. When Minister of Justice 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 – the same Zbigniew Ziobro, as public prosecutor, cancelled the investigation. An identical case in Denmark ended with charges being made against the politician involved and the removal of his political immunity.
Membership of the new European prosecutor’s office, which could itself lead an investigation in Poland, is voluntary and Poland has not even joined. Nor does it participate in ARACHNE, a data-mining system looking at how EU funds are distributed and facilitating the investigation of injustices. It must also be disconcerting that Poland is one of the few countries which has not committed itself to guaranteeing any of the principles of transparency when it comes to spending the Reconstruction Fund’s money: providing open access to the data, creating a site collating this information, revealing the final beneficiaries, explaining what the funds were spent on, publishing audit reports. Access to public information will thus be fundamentally restricted for the media and social organisations.
Furthermore, Poland is yet to publish its draft law on the launch of the National Recovery Plan, which is supposed to regulate crucial questions such as: the criteria for granting subsidies, the principles of transparency, the members of the institution monitoring how funds are spent and how it will function. Instead of this, Prime Minister Morawiecki requested that the Constitutional Tribunal will next week rule that decisions from the EU Court aimed at returning judicial independence in Poland may not be applied in Poland. It appears that the system of distributing reconstruction funds is to be particularly tightly fastened against the possibility of effective supervision from the EU and independent domestic institutions. The money spent as part of the Polish National Recovery Plan will flow freely into the National Treasury, boroughs governed by Law and Justice, and favoured companies. It is no more than a rhetorical question whether this will be subject to the appropriate oversight of the law enforcement agencies.
Since 1 January the EU has had recourse to the “rule of law conditionality mechanism”, which was created for application precisely in cases where the fundamentals of the rule of law and balance of power have been so breached in member states as to threaten its financial interests. When applied it could potentially mean EU funds are withheld, but its main aim is to function preventively: to bring about the removal of the systemic problems at the root of the threats. The commission should activate this mechanism without delay. It is essential that it protects the recipients of EU subsidies even in cases when transfers from the EU would be halted. Those who have been awarded subsidies or grants may claim them from their own country.
This is, though, a last resort and insufficient. The European Commission should recommend that the Polish recovery plan only be passed should sufficient principles of transparency be ensured, along with precisely defined criteria for selecting projects, effective monitoring by independent institutions and the full implementation of the rulings of the CJEU. It is unthinkable that the commission could agree to transfer billions of euros to a country where the primacy of European law is being questioned. It should also make sure that social organisations tracking the behaviour of those in power receive appropriate support from the new instrument called the “Citizens, Equality, Rights and Values Programme” which promotes the EU’s fundamental principles.
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?
The article first appeared in the Polish version in the daily “Rzeczpospolita”.
Piotr Buras – head of the Warsaw office of the European Council on Foreign Relations.
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).
Statement of civil society organisations on the takeover of the office of the Ombudsman by the parliamentary majority
As representatives of civil society organisations, we object to the hostile takeover of the office of Ombudsman by the ruling parliamentary majority. We do not accept the de facto settlement of our rights and freedoms by Julia Przyłębska’s politically dependent tribunal, the disregard of the fundamental principles of fair trial, including the independence and impartiality of judges, in its work.
The view taken yesterday by the tribunal is yet another example of the appropriation of the state by the party in power, the undermining of the foundations of democracy and the circumvention of the provisions of the Constitution in accordance with the principle: “when I am dead the deluge may come for aught I care”.
The provisions of the Constitution of the Republic of Poland do not preclude the continuation of the Ombudsman’s mission until a successor has been elected. On the contrary, the values enshrined in the preamble to the Constitution and its constitutional principles, such as continuity in the functioning of public authorities, civic trust in the state, as well as the concern that the fundamental rights and freedoms of citizens should not be breached, require that this office be held independently by a person who has previously been granted a democratic mandate until a successor is elected.
The opposite standard adopted by Julia Przyłębska’s tribunal means that we are all losing our protector. The people who will be most affected by this change are those for whom the Office of the Ombudsman has been the main refuge and advocate of their rights in recent years. Therefore, the people who will be most affected by this change are those who are at risk of exclusion for various reasons: people from smaller towns, the elderly, people with disabilities, people in crisis of homelessness, people belonging to minorities, especially sexual minorities, and people in detention centres. The Ombudsman’s Office received more than 72,000 requests for protection in individual cases in 2020 alone. In the light of recent events, Poland will also lose an important centre for speaking up for women’s rights.
As a civic society, we are also losing an important centre for social debate, a place where forgotten or ignored problems are raised, and where new ideas and solutions are forged. It is one of the last areas where people with different views could meet and respectfully seek common solutions to the problems they encounter.
The tribunal’s decision also poses a direct threat to several hundred people working in the Ombudsman’s Office. There is a risk of purges, an attack on their independence and behaviour, which is known from other institutions taken over in a similar way. We stand together in these difficult times with everyone working in the Ombudsman’s Office. We would like to thank them all, as well as the outgoing Ombudsman, for their hard work in upholding human rights in Poland.
We simultaneously demand that the election of a new Ombudsman takes place in accordance with the provisions of the Constitution. We consider any attempt to bypass the Sejm and the Senate when appointing an acting Ombudsman to be a circumvention of the provisions of the Constitution.
We ask the international community to monitor the actions of the ruling parliamentary majority in this regard.
List of signatures of the organisations:
Akcja Demokracja [Democracy Campaign]
The Wiktor Osiatyński Archive
Fundacja Ośrodek Kontroli Obywatelskiej OKO [OKO Centre for Civic Control Foundation]
Centre for Social Initiatives in Gliwice
Social Initiatives Development Centre CRIS
Roman Czernecki Educational Foundation
Federation for Women and Family Planning
The Donors Forum in Poland
Forum Unia Młodych [Youth Union Forum]
Fundacja “Przestrzeń dla Edukacji” [Space for Education Foundation]
Fundacja Aktywności Lokalnej [Local Activity Foundation]
Fundacja Bęc Zmiana [Bęc Zmiana Foundation]
Bronisław Geremek Foundation
Entrepreneurship and Innovation Centre 50+ Foundation
Silent Rainbow Foundation
ClientEarth Prawnicy dla Ziemi Foundation
Foundation for Poland
Fundacja Domu Baudouina [Baudouin Foundation]
The “Iustitia” Foundation for Legal Education
Ecological Foundation “Green Action”
Civil Development Forum (FOR Foundation)
Responsible Business Forum Foundation
Frank Bold Foundation
Fundacja Głuchych Zacisze [Zacisze Foundation for the Deaf]
The Stefan Batory Foundation
Liberal Culture Foundation
Znak Foundation for Christian Culture
Fundacja Machina Zmian [Machine of Change Foundation]
Lubartów Civic City Foundation
Mundus Cantat Foundation
WE Patients Foundation
Foundation for Pupils’ Rights
STER Foundation for Equality and Emancipation
Fundacja na rzecz Wolnomyślicieli [Foundation for Free Thinkers]
Fundacja Najpierw Mieszkanie Polska [First Flat Poland Foundation]
Fundacja Nowe Centrum [New Centre Foundation]
KARTA Centre Foundation
Parent Project Muscular Dystrophy Foundation
Full of Life Foundation
Fundacja Pole Dialogu [Area of Dialogue Foundation]
Auxilium Foundation for People with Disabilities, Children and Youth
Fundacja Pomorskie Centrum Psychotraumatologii [Pomeranian Psychotraumatology Centre Foundation]
Res Publica Foundation
Childbirth with Dignity Foundation
Independence of the Kitchen Foundation
Heart of the City Foundation
School with Class Foundation
Foundation Towards Dialogue
Faith and Rainbow Foundation
Freedom from Religion Foundation
WWF Poland Foundation
Snow Mountain Community Fund
The Helsinki Foundation for Human Rights
Inicjatywa obywatelska “Chcemy całego życia!” [“We want a full life” Civic Initiative]
Institute of Public Affairs
Janów Association for Assistance HUMANUS
Kalisz Urban Initiative
Campaign Against Homophobia
Committee for the Defence of Democracy
Cracow Institute of Criminal Law Foundation
Stanisław Brzozowski Association Political Critique
International Institute of Civil Society
Citizens of Culture
Wielkopolska Branch of Foster Parenthood Association
National Federation of Polish NGOs
All-Poland Women’s Strike
“Open Republic” Association against Anti-Semitism and Xenophobia
Robert Schuman Foundation
Polish Institute for Human Rights and Business
Polish Tourist and Sightseeing Society, Żyrardów Branch
Consultative Council to the All-Poland Women’s Strike
Citizens’ Network Watchdog Poland
Siedlce Association of Helping People with Alzheimer’s Disease
Spring without Barriers Association
Stowarzyszenie Cała Naprzód [Full Steam Ahead Association]
Stowarzyszenie Dialog Społeczny [Social Dialogue Association]
Homo Faber Association
The Professor Zbigniew Hołda Association
Association for Legal Intervention
Women in Film Association
Better World Association
Association of Young Scientists
Tolerado Society for LGBT People
Our Imaginarium Association
NOMADA Association for Multicultural Society Integration
Stowarzyszenie Oświata Polska [Polish Education Association]
Stowarzyszenie Plac Solidarności [Solidarity Square Association]
Stowarzyszenie RAZEM DLA KONARZEWA [TOGETHER FOR KONARZEW Association]
Association for the Development of the Kaliska Municipality
Śmiałowice Village Development Association
Stowarzyszenie SZERSZE HORYZONTY [Wider Horizons Association]
Stowarzyszenie TAK Trójmiejska Akcja Kobieca [Tricity Women’s Campaign Association]
Tarnowska Rospuda Association
Multicultural Kraków Association
Stowarzyszenie Wspólne Wójtowo [Common Wójtowo Association]
Zachodniopomorskie Smaki Association
Stowarzyszenie Zielone Dzieci [Green Children Association]
The Świętokrzyskie Centre for Social and Cultural Initiatives
Towarzystwo Dziennikarskie [Journalists’ Society]
Zalewska Land Lovers Society
Towarzystwo Muzyczne Ziemi Proszowickiej [Musical Society of the Proszowice Land]
Great Coalition for Equality and Choice
Czulent Jewish Association