Reactivating conditionality in Poland

Introduction

The 2023 Polish elections noticed the Civic Coalition get together take away the Regulation and Justice (PiS) get together from authorities, after an eight-year time period marked by a severe rule of legislation regression. With Donald Tusk forming a brand new cupboard, the EU needed to determine between sustaining conditionality measures in place over rule of legislation backsliding, or displaying instant assist to the brand new EU-friendly administration by lifting monetary suspensions. It went with the latter. Nevertheless, after profitable the Could 2025 presidential elections, PiS-backed candidate Karol Nawrocki assumed the Polish presidency in August, making the EU’s transfer to revive funding seem untimely and grounded in extreme optimism. This weblog publish critically examines the authorized soundness of the selections releasing funding after Tusk’s victory and discusses whether or not they have been strategically counterproductive. Lastly, it explores how reactivating conditionality may present Tusk with new leverage to advance reforms aiming to revive the rule of legislation.

The discharge of funding raises authorized issues

After the 2023 nationwide elections in Poland, the EU swiftly moved to unblock funding that had been suspended below conditionality mechanisms within the Frequent Provisions Regulation (EU) 2021/1060 (the ‘2021 CPR’) and Regulation (EU) 2021/241 (establishing the Restoration and Resilience Facility, the ‘RRF Regulation’). In relation to the previous, over EUR 75 billion have been launched on 29 February 2024, shortly after the presentation of a Polish ‘motion plan’ with the measures that Tusk’s authorities meant to implement to revive the rule of legislation. Whereas motion plans have been supplied for in Regulation (EU) 1303/2013 – permitting Member States to entry funding on the promise of future compliance with conditionalities – they have been faraway from the 2021 CPR. This transformation seemingly ended the follow of accessing funds when the conditionalities had not but been fulfilled, signalling that compliance needs to be achieved ex-ante to ensure that cost functions to be reimbursed.

Regardless of this, the Fee continues to have ample discretion when finishing up fulfilment assessments, because the 2021 CPR lays down no standards for the analysis of conditionalities. This enabled the Fee to assist its appraisal by reference to the Polish motion plan, in the end approving funding even when no progress had been made relating to sure rule of legislation suggestions (extra on the Fee’s reliance on the desire of nationwide authorities right here). Although the Fee’s interpretation that compliance assessments can embody potential parts is believable, this method seems at odds with the legislator’s resolution to take away motion plans from the 2021 CPR.

Much more controversial was the unblocking of funds below the RRF Regulation. Poland’s complete EUR 60 billion restoration plan was endorsed by the EU in June 2022, with the PiS get together nonetheless in authorities. Although, on the time, this transfer sparked fierce criticism, not one single euro was disbursed as a result of introduction of rule of legislation tremendous milestones within the restoration plan. Tremendous milestones are situations Member States should meet with a purpose to obtain funding. Because of their particular significance, failure to satisfy even a single tremendous milestone leads to the suspension of all funding. One tremendous milestone mandated particular reforms within the area of justice, reminiscent of dismantling the notorious Disciplinary Chamber and making certain that every one instances affecting judges could be heard by tribunals established by legislation inside the that means of Article 19(1) TEU. In an try to realize compliance with that tremendous milestone, on 15 July 2022, the PiS authorities abolished the Disciplinary Chamber and created a brand new Chamber of Skilled Legal responsibility. This was broadly seen by commentators and members of the Fee as a beauty reform (see right here and right here), and no funds have been disbursed.

After Tusk’s cupboard got here to energy in 2023, nevertheless, the EU used those self same reforms handed by PiS over one yr earlier to declare that the tremendous milestone had been fulfilled. Relating to the requirement that every one instances affecting judges needs to be heard by a tribunal established by legislation, the Fee discovered that this situation was achieved in ‘the overwhelming majority’ of instances. But, the tremendous milestone refers to all instances, with out exception. The Fee omitted that the Chamber of Extraordinary Management and Public Affairs – which each the CJEU and the ECtHR have thought-about to not be a tribunal established by legislation – remains to be competent to listen to motions regarding the recusal of judges and the designation of courts. These findings alone ought to have rendered the tremendous milestone unfulfilled.

Though the EU’s intention to assist Tusk is politically comprehensible, the selections to carry the suspensions below the CPR and the RRF Regulation have been legally problematic, significantly within the case of the latter. Not with out sure benefit, Eurosceptics accused the EU of politicising funding and basing its assessments on a mere change in authorities. These developments not solely raised issues from an EU legislation perspective, but additionally carried essential strategic dangers, particularly since PiS-controlled establishments may nonetheless derail reform efforts. As will probably be mentioned subsequent, releasing the funds too quickly could have disadvantaged the Polish authorities of a key instrument to push ahead its agenda, compromising its skill to ship on its commitments.

Tusk’s incapacity to implement the promised reforms

Within the context of EU conditionality, nationwide governments can use externally imposed funding necessities to strain home actors into supporting needed reforms. That is significantly efficient, for instance, when minority governments lack the parliamentary energy to approve the reforms, but opposition events are compelled to cooperate with a purpose to keep away from public backlash for jeopardising funding. Within the context of Poland, the monetary leverage supplied by the conditionalities would have been significantly useful after the 2023 elections, since regardless of the Civic Coalition’s victory, vital ‘autocratic enclaves’ have continued in positions of state authority.

Autocratic enclaves are establishments inside a state that stay below the management of intolerant forces and resist reforms aiming to revive the rule of legislation. At the moment, two predominant autocratic enclaves exist in Poland: President Nawrocki (who succeeded PiS-aligned Andrzej Duda) and the Constitutional Tribunal. Former President Duda had already used his presidential prerogatives to veto restorative laws, reminiscent of blocking a invoice that will have prevented the Chamber of Extraordinary Management and Public Affairs from validating this yr’s presidential elections. In tandem with Duda, the Constitutional Tribunal – filled with PiS loyalists and which AG Spielmann considers to not meet the necessities of independence and impartiality in a case presently pending earlier than the CJEU – has additionally obstructed rule of legislation reforms, as highlighted within the 2025 Rule of Regulation Report. It is because, along with its veto prerogative, the President can even halt laws accepted in Parliament by referring it to the Constitutional Tribunal. This has resulted in disconcerting conditions, such because the Constitutional Tribunal reviewing the constitutionality of two payments aiming to depoliticise the Constitutional Tribunal.

Declaring compliance with the conditionalities not solely raised authorized issues. It additionally eliminated essential monetary leverage that might have been utilized by the brand new authorities to extend strain on autocratic enclaves. This was all of the extra vital on condition that public opinion overwhelmingly blamed PiS for the funding freeze. The earlier PiS authorities had already proven sensitivity to monetary strain by introducing (albeit restricted) reforms in an try to satisfy EU necessities. If the conditionalities had remained in place, they could have maintained public strain on former President Duda and the Constitutional Tribunal, therefore dissuading them from obstructing the federal government’s reform efforts. With out monetary leverage, the Polish authorities misplaced a precious instrument for overcoming autocratic resistance.

Time to reactivate conditionality

With Nawrocki’s victory, the prospect of restoring the rule of legislation in Poland seems more and more unsure. Some commentators have begun to query the federal government’s viability, pointing to indicators of rising fragmentation inside the ruling coalition. One junior associate has already withdrawn, whereas one other is floating the potential for forming a brand new coalition with the PiS and different far-right forces. In an effort to reassert management, on 2 June 2025, Tusk referred to as a vote of confidence which he survived, confirming that he nonetheless instructions a parliamentary majority.

From a authorized perspective, reactivating the conditionalities within the 2021 CPR and the RRF Regulation is completely potential. Article 15(6) of the 2021 CPR requires the Fee to watch compliance all through all the budgetary interval, and set off funding suspensions if cases of non-fulfilment are detected. As Poland has not been in a position to ship the reforms in its Motion Plan, the Fee has authorized grounds to determine that the situations for the reimbursement of funds are now not met. Equally, Article 24(3) of the RRF Regulation offers that the Fee should assess whether or not beforehand fulfilled milestones haven’t been reversed. As already defined, in Poland’s case, some tremendous milestones weren’t even achieved within the first place. Be that as it could, Article 24(3) permits the Fee to withhold funds in response to Poland’s failure to satisfy its obligations, together with the dismantling of the Chamber of Extraordinary Management and Public Affairs. So long as this sham judicial physique exists, Poland continues to not fulfil one of many tremendous milestones in its restoration plan, thus leaving the door open for the Fee to droop disbursements. Beneath each the 2021 CPR and the RRF Regulation, these measures may be adopted by the Fee alone, with out the formal involvement of the Council.

By way of political expediency, it may very well be argued that reactivating the conditionalities would ship a doubtlessly deadly blow to the federal government. Certainly, Tusk campaigned on the promise of unblocking EU funds, and he succeeded at this quickly after taking workplace. Reimposing monetary measures may very well be seen by the general public as a sign of his authorities’s failure, and presumably at the same time as an indication that the EU has misplaced confidence in him. Nevertheless, there’s an alternate approach of taking a look at it. Simply because the untimely lifting of the conditionalities eliminated precious leverage that might have helped drive reforms, a fastidiously calibrated reactivation may improve Tusk’s capability to ship on his commitments. This might require a coordinated communication marketing campaign between the EU and the Polish authorities, structured round at the very least two key factors (on the significance of efficient public communication in post-illiberal contexts, see right here).

First, it will be essential to stress that the adoption of economic suspensions outcomes instantly from the authorized character of the conditionalities. The place Poland fails to satisfy its obligations, the measures should be triggered whatever the political orientation of the Polish cupboard. The Fee ought to recognise the present authorities’s efforts to revive the rule of legislation and spotlight that it’ll proceed to work collectively to realize that goal. Second, the Fee should emphasise that it understands that the primary obstacles to implementing the required reforms lie within the actions of particular institutional actors inside the Polish state (i.e. the autocratic enclaves). Their conduct has prevented compliance with EU legislation obligations, arguably leaving the Fee with no different however to reactivate the conditionalities. Admittedly, such a press release would depart from the standard logic of accountability inside the EU, the place Member States as an entire, and never particular establishments, are held accountable. But, that is justified in mild of the distinctive circumstances in Poland, the place key establishments stay captured by the earlier regime and are actively blocking important reforms.

If each factors have been successfully communicated on the time of reactivating the conditionalities, Tusk may very well be granted renewed monetary leverage to advance his reform agenda with out bearing the political price of the measures. The general public opinion already confirmed a robust consciousness of who’s chargeable for the tensions with the EU, that means {that a} coordinated communication marketing campaign would merely reinforce broadly held perceptions. Furthermore, reinstating the conditionalities would function an implicit recognition that their earlier lifting was untimely, sending a transparent message that these are authorized mechanisms that apply no matter the federal government in energy.

Conclusion

After Tusk’s victory in 2023, the EU confronted a brand new dilemma regarding how you can deal with monetary suspensions as soon as a pro-EU authorities takes workplace. On this occasion, it selected to carry all measures in an effort to assist the brand new administration. That call not solely raises authorized issues, as a politically-oriented interpretation of the conditionality mechanisms prevailed. Additionally it is strategically questionable because the new authorities was disadvantaged of economic leverage that might have helped it advance its reform agenda. This expertise ought to function a lesson for the EU, significantly given the likelihood that different autocratic governments may quickly be faraway from energy, as could occur in Hungary. Within the case of Poland, Tusk’s authorities now dangers two years of legislative gridlock and political deterioration. The reintroduction of economic suspensions, accompanied by a fastidiously coordinated communication marketing campaign, may assist reassert the authorized character of the conditionalities whereas additionally offering Tusk with renewed leverage to revive the rule of legislation.

The creator is grateful to Monica Claes, Matteo Bonelli, and Wicke van den Broek for sharing their considerate insights.