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Prime Minister Mateusz Morawiecki is perfectly aware that the EUR 58 billion from the recovery and resilience facility (non-refundable grants and low-cost loans) are crucial for the Polish economy to rebound after the coronavirus-induced crisis and are necessary to maintain the country’s budgetary stability. This is why he seeks to find a compromise with the EU. For now, however, Brussels is withholding its acceptance for Poland’s National Recovery Plan because the Polish government shows itself unwilling to accept the CJEU rulings and keeps undermining judicial independence.

The row turned into a full-blown crisis after Poland’s politically compromised Constitutional Tribunal has recently granted PM Morawiecki's request and ruled that certain provisions of EU treaties are incompatible with the Polish constitution. During the Tuesday debate in the European Parliament, the head of the European Commission, Ursula von der Leyen, emphasized that the ruling is a direct blow to the very foundations on which the EU is built.

The Prime Minister’s influence is waning

Morawiecki’s decision to address the European Parliament results directly from his waning position in the right-wing coalition government- he has long been attacked by, among others, the Justice Minister’s far-right United Poland faction for being too submissive in talks with Brussels and for agreeing to the "rule of law conditionality" mechanism.

Moreover, internal sources claim that Jarosław Kaczyński- the leader of the ruling Law and Justice party- has now decided to pursue a more confrontational strategy in his relations with the European Commission because he recognized that the Prime Minister’s policy of appeasement has largely failed. The most glaring example of this is the CJEU ruling ordering Poland to stop all extraction activities at the brown coal mine in Turów due to a complaint from the Czech Republic (the issue being serious ecological damage near the Czech-German border).

That is why in their recent media appearances, the deputy Minister of Foreign Affairs Piotr Wawrzyk and Deputy Minister of Justice Sebastian Kaleta have made it clear that the Polish authorities would not comply with von der Leyen's demand to reinstate judges removed from their posts by the contentious Disciplinary Chamber.

Right after the Prime Minister’s speech in the European Parliament, his immediate circle of advisors began drafting a plan on how to pressure the Commission into accepting Poland’s National Recovery Plan. They began to put together a list of key issues that EU institutions must deal with and approve, and which the Polish government might try to boycott to bolster its negotiating position. By threatening to paralyze parts of the Union's agenda, PiS is hoping to force the European Commission to make concessions.

There are also voices inside the ruling camp claiming that a head-on collision course with the EU might not be so bad after all, because while the European Parliament and the Commission are taking a tough stance on the Polish government, the European Council, consisting of heads of the member states, can be more flexible and won't be so eager want to further inflame the relations with Warsaw. In the end, it is the Council that holds the greatest power in the EU structures.

PiS: We might have to block the European Green Deal

One of the options PiS is currently toying with is an attempt to block the implementation of the European Green Deal. The proposal would be as follows: if the Commission cuts it off from EU funds, PiS will not comply with the Green Deal, arguing it does not have the money to implement its provisions. Effectively, the EU’s climate goals will remain only on paper.

Another argument - money for the European Reconstruction and Resilience Facility is in fact a loan taken out on behalf of all member states. PiS will argue that because Poland is obliged to repay its part of the loan, the funds cannot remain blocked for long.

The ruling camp will also claim that it has met many of the EU’s demands regarding the justice system. This includes a reversal of the purge inside the Supreme Court and now also the decision to dissolve the contested Disciplinary Chamber for judges. Kaczyński had already mentioned this in August, and Morawiecki reiterated it on Tuesday in the European Parliament.

In Strasbourg, the Prime Minister has also argued that the politically compromised Constitutional Tribunal did not question EU treaties as such, but only their interpretation by the EU Court of Justice. This will be another narrative pursued by PiS at the European level.

However, there is one serious problem. According to our sources inside the government, contrary to the Justice Minister’s or Jarosław Kaczyński’s public statements, the ruling coalition is still far from implementing the reforms requested by the EU, including the closure of the Disciplinary Chamber.

The negotiations are taking place between Kaczyński, the Minister of Justice Zbigniew Ziobro, and Mateusz Morawiecki. Ziobro, who also heads the junior coalition partner United Poland, wants to carry out another overhaul of the justice system, which could mean eliminating judges who fail to toe the party line. He intends to abolish district courts, appoint only circuit and regional courts (instead of today's appellate courts), drastically slim down the Supreme Court, and take away a large part of its competencies.

Kaczyński seems to be in favor of such radical solutions (at least that’s what he said in an interview with RMF FM last Saturday), but Mr Ziobro's proposals could trigger a full-blown war with the European Commission. Set in the wider context of the collapse of Poland’s independent judiciary, dissolving the Disciplinary Chamber would merely serve as a fig leaf. 

What's more, according to our sources inside the government, Kaczyński doesn't want to leave the final decision about the shape of the new "reforms" to the Minister of Justice. Thus, the work continues in the Prime Minister's office.

On Wednesday afternoon, after the original article was published on our main website (Wyborcza.pl), the information was confirmed by the government’s spokesman Piotr Müller. He said that the draft proposals would be ready by the end of the year.

President Duda has the power to override PiS. But will he use it?

So far, no one has consulted President Andrzej Duda about his plans for judicial reform, and there are signals from his immediate circle that the head of state wants to have a final say in making the decision. The president is waiting for Jarosław Kaczyński to ask him for his opinion. In the past, he had already vetoed two bills proposed by Minister Ziobro back in 2017.  

For a long time, relations between president Duda and the PiS chairman have been rather sour. The ruling camp is afraid that Duda may follow the opinion of the first president of the Supreme Court Małgorzata Manowska. In an interview for the daily Dziennik Gazeta Prawna, she said that she has many reservations about the Justice Ministry's plans, and has not ruled out stepping down.

In addition, some ruling camp politicians believe that a head-on confrontation with the European Commission will not help Poland to get approval for its National Recovery Plan.

That is why PM Morawiecki is said to have pointed out at internal party meetings that relations with the EU might now be different and that an agreement may no longer be possible. However, he also claimed that the ruling camp could push through and make it to the 2023 elections without the financial cushion in the form of EU funds. If PiS manages to win the elections, the EU will be helpless, because it will not dare to question the democratic choice of Polish citizens.

Brussels, on the other hand, is likely to cave under the pressure because it cannot afford itself to let Poland follow in the footsteps of the United Kingdom - say our sources in the EU and inside the Polish government.

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Every day, 400 journalists at Gazeta Wyborcza write verified, fact-checked stories about Polish politics and society, keeping a critical eye on the ruling camp’s persistent assault on democratic values and the rule of law; the growing cultural tension between religious fundamentalism and human rights; and the ongoing COVID-19 epidemic. Our journalists are on the front lines in 25 Polish cities, reporting from the streets, hospitals, and courtrooms about issues that move public opinion.

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