Tusk-Duda battle over alignment with EU rule of law rules rattles Poland

Brussels – It was not a smooth handover for Poland after last year’s October elections handed the governments’ leadership to Donald Tusk. Because despite the (at least momentary) exit of the ultraconservative former prime minister, Mateusz Morawiecki, the Law and Justice (PiS) party that was in power for eight years can still count on a top institutional figure: the president of the Republic, Andrzej Duda. Not even a month since the entry of the new Tusk cabinet, tensions are already running high between the two Polish leaders on the issue that has made relations between Warsaw and Brussels so difficult for years – respect for the principles of the rule of law – as the political news of the last few hours in the country are showing.

Last night (Jan. 9), Polish police entered the presidential palace to take into custody two PiS parliamentarians – Mariusz Kamiński and Maciej Wąsik – convicted by the Warsaw District Court of abuse of office and who sought refuge in Duda’s residence to seek a pardon. In 2015, just weeks after the ultra-conservative party came to power,  the president had decided to pardon the two deputies – allowing them first to be part of the government of Beata Szydło and then the one led by Morawiecki. However, this decision did not respect one of the principles of the rule of law, namely the natural course of the judicial process (that can eventually lead to a pardon), which the Tusk-led coalition said was politically motivated. Kamiński and Wąsik were sentenced to two years in prison by the court. After the swearing-in of the new parliament, the new speaker, Szymon Hołownia (Poland 2050), ordered the revocation of the mandates of the two deputies newly elected from the ranks of PiS, stripping them of their parliamentary immunity.

From left: the Prime Minister of Poland, Donald Tusk, and the President of the European Commission, Ursula von der Leyen (December 15, 2023)

So, in the event of a new pardon by President Duda, an institutional conflict could erupt in Poland since the new government is unwilling to give discounts to the former ruling party and is intent on realigning the country to the principles of the rule of law. For weeks now, Tusk has been working to unhinge the influence-peddling system that has characterized the eight years of ultra-conservative rule in key areas such as media and state-owned companies, but also on the judicial level. For the new cabinet, the return to respect for the rule of law is a founding pillar, not only of the government’s program but, more importantly, to unlock all the 59.4 billion euros from the National Recovery and Resilience Plan (NRRP). “Without confidence in the restoration of the rule of law, the Commission would not have made this decision,” Tusk said in front of the EU executive chief, Ursula von der Leyen, when 5 billion of pre-financing of the RePowerEu chapter was released on December 15.

Tusk’s challenge on rule of law in Poland

While facing challenges from President Duda’s obstructionism, Tusk will have a lot of work to resolve problems created by the previous government over standards of respect for the rule of law, which have strained relations between Warsaw and Brussels in recent years. Since 2021, there has been an ongoing legal dispute brought about by two rulings of the Constitutional Court of Poland: the first on July 14, when the Warsaw courts rejected the EU regulation allowing the EU Court of Justice to rule on “systems, principles and procedures” of Polish courts; the second on October 7, when the Constitutional Court challenged the primacy of EU law, calling Articles 1 and 19 of the Treaty on European Union (TEU) and several rulings of EU courts “incompatible” with the Polish Constitution.

Former Polish Prime Minister, Mateusz Morawiecki

At the heart of the dispute is the decision to provisionally suspend the powers of the disciplinary section of Poland’s Supreme Court due to some arbitrary measures against magistrates that the ruling majority disliked. While a European Commission infringement procedure is underway, the EU Court of Justice ordered the member country to pay a one million euro per day fine: the bill has already risen over half a billion euros – 526 million to be exact – from October 27, 2021, to April 14, 2023. On the day of the ousting of former premier Morawiecki for a new term as premier, Poland’s Constitutional Court declared unconstitutional the fines imposed on the justice system and the Turów lignite mine, exacerbating the dispute with Brussels.