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What exactly are the European policymakers counting on? That Poles will choose money and force the government to change the law or change the government to one that will accept everything.

Tomasz Rowiński

When reading the comments and interpretations that were written immediately after the EU summit in December 2020, today it is hard to believe that the Polish authorities were so easily played by Brussels decision-makers and government representatives in Berlin, who then acted as the architect of compromise. Let us recall that the agreement was to apply – or rather not to apply – the new EU regulation on conditionality in the field of the rule of law and open the way to ratification of the EU Recovery Fund (RF).

The case of the RF and the related National Recovery Plan (NRP) is one of the biggest failures of the United Right alliance, as Poland still has not received these funds. What is worse, the principle of conditionality, which Poland has agreed to, opens up completely new possibilities for the EU bureaucracy and its political governing bodies to limit Polish sovereignty.

AN ILLUSORY COMPROMISE

At the EU summit in December 2020, Poland and Hungary accepted the new solution – known today as “Money for the Rule of Law” – thanks to the addition of a “non-legislative” political package with a promise to delay its effective entry into force. On this basis, the governments in Warsaw and Budapest withdrew from the announced veto against the EU budget for the 2021-2027 period, and also allowed the EU countries to start ratifying the provisions needed to implement the RF. It is important to remember, that the RF was created in response to the economic situation in the EU resulting from the pandemic.

At that time, the German outlet Deutsche Welle (dw.com) explained the situation to the Polish readers through the voice of an anonymous diplomat, who was to be connected to the negotiation process between Warsaw and Budapest on the one hand, and Berlin and Brussels on the other. “Orban’s policy was to postpone the risk of cuts until at least 2022, using Poland to strengthen his negotiating position. Poland is not struggling with EU money now, but Orbán is facing elections in 2022 and does not want any disruptions at least until then” – the article stated. The politically negotiated “interpretative declaration” seemed to reinforce the threads of the regulation that Poland cares about. This means that it will be applied to states in an objective, non-discriminatory manner, and without going beyond the authority of the EU. This last point is particularly worth remembering because it concerns, inter alia, family law.

Already in March 2021, the specter of problems appeared. It turned out that the “compromise” negotiated in December by Prime Minister Morawiecki may turn out to be illusory in the most important point for Poland, concerning future money from FO. “Vice-President of the European Commission (EC) Věra Jourová is working on accelerating the introduction of a solution that will stop transfers of funds from the pandemic recovery fund to countries that do not comply with the so-called ‘rule of law principle’ – Hungary and Poland”, wrote 300polityka.pl, following Bloomberg. “I will be pushing for a solution that will potentially sanction the funds that are yet to be transferred, and not those funds that have already been allocated. This is a big change, because it will allow us to take action later this year”, said Věra Jourová in an interview with this American outlet.

At the end of April 2021, there was a crisis in the coalition – PiS, in the temporary coalition with the Left, voted to ratify the RF, while Zbigniew Ziobro, who criticized United Poland’s (Solidarna Polska) project, was against it. At the same time, United Poland issued a statement that today can be considered a political prophecy. “The possibility of blocking funds by the EU is a real tool for blackmailing Poland. There is a risk of forcing decisions on issues in which we have not delegated authority to the Union but are the sole object of our internal affairs”. It was pointed out then that Poland’s sovereignty might be at risk not only in the field of the judiciary, but also – despite previous declarations – family law. What does this mean? For example, the fact that, by means of the principle of conditionality, the European Commission may want to force Poland to legalize same-sex marriage and the adoption of children by same-sex couples.

Since it was possible to break the Polish authorities at the local government level, there is no doubt that there will be attempts to confront the central authorities as well. How can this be effected? Through the case law of the European Court of Human Rights (ECHR), which is also considered as the basis for the operation of the Conditionality Regulation in the field of the rule of law. The regulation serves to protect the budget, and the EU prescribes the use of the principles of non-discrimination in the distribution of funds, thus ensuring non-discrimination is also understood as a form of budget protection. The principles of non-discrimination are interpreted according to the rules defined by the agenda of the political homosexual movement and gender ideologues. This applies both to the judgments of the ECHR and the procedures of the European Commission. In practice, it does not matter that the ECHR is not a body of the EU, but of the Council of Europe. The ideological synergy between the two is clearly visible.

As a consequence, the actions of the Polish legislator or the ruling of the Polish Constitutional Tribunal (PCT) aimed at e.g. challenging the rulings of the ECHR, ordering Poland to legalize same-sex relationships and prohibiting courts from registering such relationships, will be considered to violate the principle of judicial independence. Why? Because these judgments would prevent Polish judges from applying EU law. Including the specifically understood principle of non-discrimination, the application of which in fact violates the principle of non-interference of the EU in matters not covered by its powers. This logic leads to a specific goal – the actions of the legislator or the PCT will be assessed as violating the principles of protecting the EU budget, which will enable the EU to block funds due to Poland. The plan is as follows – if Poland wants to receive any EU funds, it must submit to the ideology and give up those elements of sovereignty indicated by EU decision-makers.

LEGAL PROVING GROUND

This mechanism is already being practiced in the area of the judiciary. The CJEU ruled that the Disciplinary Chamber of the Polish Supreme Court was not independent, and in reaction the PCT stated that EU law may take precedence over Polish acts only in the area of delegated powers. “Member States have not empowered EU bodies to presume authority, or to derive new powers from those which already exist”, explained Bartłomiej Sochański, judge rapporteur of the PCT. Meanwhile, this is what is happening. In the autumn of 2021, senior representatives of the EC repeatedly made it clear that Poland’s questioning of the “superiority of EU law” was the reason why the EC did not consent to the implementation of the Polish NRP. Clearly, the rules of budget security are not being followed! Through such means of action, Poland can be blackmailed in any area of domestic policy. The possibility of such a scenario is confirmed by the Polish Ministry of Justice.

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What are European policymakers counting on? That Poles will choose money and force the government to change the law or change the government to one that will accept everything. Unfortunately, financial issues can easily skew the outlook in which the public should judge this situation. It must be said directly that the situation of Poland within the EU structures has become rather dismal. Unfortunately, this is also due to the credulity of our government.

This article was published in February 2022 in “Do Rzeczy” magazine.