The EU seems more interested in adding fuel to the fire than helping to find a solution.
The EU seems more interested in adding fuel to the fire than helping to find a solution.
T he scenes coming out of Poland of protesters clashing with police are almost a mirror image of the unrest in France: Unlike in France, most protesters in Poland are right-wing sympathizers who are protesting what they consider an unconstitutional power grab. At issue are a series of judicial reforms introduced by the conservative Law and Justice (PiS) Party during its time in power, which current prime minister Donald Tusk, of the Civic Coalition, has been fighting to undo. In a conflict with few, if any, good guys, the worst actor, as is so often the case in European politics, is Brussels.
Although communism formally ended in Poland in 1989, many institutions, including the judiciary, retained significant personnel continuity. PiS has long argued that this produced a self-perpetuating professional caste that remains resistant to accountability and is still shaped by habits of the old system, even decades after the fall of the Berlin Wall.
In large part, this was because the members of the National Council of the Judiciary, whose job is to nominate new judges, were themselves elected by the current judges. This tilted the makeup of the council toward the old guard, ensuring that its nominees were, if not communists, then certainly not conservatives.
For years, right-wing governments shied away from reform, fearing that it would be perceived as political interference in the judicial system. After returning to power in the 2015 election, PiS decided that enough was enough and introduced a series of reforms: the council would be partially elected by the parliament, the mandatory retirement age for judges would be lowered, and the Ministry of Justice would be granted greater power to intervene in the appointment of court presidents and vice presidents. A new disciplinary body was also established.
Most controversially, PiS refused to seat judges appointed to the Trybunał Konstytucyjny, Poland’s constitutional tribunal, which is separate from its Supreme Court. These judges had been appointed by the outgoing parliament after the 2015 election, during the “lame duck” session — a decision that required the outgoing coalition to change the law. PiS argued that these appointments were illegitimate and amounted to packing the court, an argument that the tribunal partially accepted when it declared two of the five appointments to be invalid. By the time the tribunal had made its judgment, however, PiS had already appointed five judges, causing a surplus of three.
These reforms quickly turned Poland into a pariah within the European Union, which accused PiS of effectively dismantling democracy. As the largest net recipient of EU funds, Poland found itself in a bind when the EU withheld tens of billions of euros to which the country was legally entitled.
Though the legal reforms were the trigger, Brussels’s dissatisfaction with Poland was equally rooted in the country’s staunch refusal to accept refugees and go along with the EU’s climate policies (a separate conflict that also led to Poland being fined) — not to mention the country’s anti-LGBT policies.
Polish voters initially held the line, reelecting PiS with a higher share of the popular vote in 2019. Afterward, PiS took its judicial reforms one step further with a new law that, according to some interpretations, allowed judges to be disciplined for referring cases to the European Court of Justice. Brussels did not like this one bit. In 2023, amid a cost-of-living crisis and a war in Ukraine that had left Poles feeling vulnerable, Donald Tusk was elected prime minister on a platform of reconciling with Brussels and fighting corruption. Shortly after he took office, the EU released much of the frozen funds as a “thank-you” to Polish voters for finally voting the right way.
Tusk, whose party had appointed five justices during the 2015 lame duck session, immediately set about undoing the judicial reforms. This work was made easier by the fact that, while most of the reforms were reasonable, PiS had also overplayed its hand.
In Poland, newly appointed judges must be sworn in by the president. In 2015, after then-President Andrzej Duda, a member of PiS, refused to swear in the judges appointed during the lame duck session, the constitutional tribunal ruled that the oath requirement did not give the president veto power over judicial appointments. It then reversed that stance earlier this year, granting the current president — Karol Nawrocki of PiS — the power to refuse to swear in judges approved by parliament. This reversal, by a tribunal that now features numerous PiS appointees, caused an outrage. Nawrocki has used this and the other powers of the presidency liberally, arguing that Polish voters elected him to act as a check on Tusk’s power. This culminated in last week’s showdown.
The latest escalation happened on October 30, when several judges appointed by Tusk’s party and its allies moved to take control of the Constitutional Tribunal. The most senior among them, Anna Korwin-Piotrowska, announced the suspension of the tribunal’s PiS-appointed president, Bogdan Święczkowski. President Karol Nawrocki, who was en route to Senegal on a state visit, promptly turned his plane around and returned to Warsaw. Shortly after midnight, he confronted the judges at the entrance to the tribunal, going so far as to physically push past Korwin-Piotrowska as he declared that neither she nor the other three judges were legitimate. Protesters quickly gathered outside the tribunal, and riot police were deployed. Both sides have accused the other of staging an unconstitutional coup.
While PiS overstepped boundaries, Donald Tusk’s hands are far from clean. Though his criticism of the PiS’s corruption has some validity, Poland’s score on the Corruption Perceptions Index has barely budged during his time in office. The man who marketed himself as the best thing since sliced chleb żytni has continued the worst habits of his predecessors. Unlike his predecessors, however, he has failed to stand up to Brussels.
This goes a long way toward explaining why Polish voters now overwhelmingly disapprove of Tusk. With just one year to go before the next election, this discontent is all but certain to have influenced his decision to pick a fight with the Constitutional Tribunal, apparently in the hope that the resulting circus will distract voters from the high price of chleb.
PiS, on the other hand, is under serious pressure, having dropped almost 15 points in the polls since the 2023 election. For the most part, PiS has been losing voters to the hard-right nationalist Confederation Liberty and Independence and the ultranationalist Confederation of the Polish Crown. Desperate to demonstrate their toughness and win these voters back, PiS and President Nawrocki are unlikely to back down.
Instead of heavy-handedly imposing fines on Poland, the EU should have offered to mediate between PiS and the Civic Coalition by helping them develop bipartisan reforms to resolve long-standing concerns regarding the judiciary (and not just within PiS). Such reforms could give parliament greater control over judicial appointments while introducing safeguards to prevent either party from dominating the judiciary, as both have tried to do. What is happening in Poland, with both parties playing games to gain control of the courts, may be a preview of what could happen in the U.S. if one party were to stack the judiciary, only for the other to retaliate as soon as it returned to power.
By endorsing Donald Tusk’s latest theatrics instead of calling for a bipartisan solution, the EU is enflaming an already delicate situation. This is particularly irresponsible given the unrest that several European countries have already seen this fall. In a dispute with few truly good guys, Brussels, as usual, has managed to be the worst of them.