"Poland will return to the place it deserves in Europe." That is the promise he made in his first statement as the Donald Tusk Government. The former president of the European Council wants to reconvert the country after eight years of obscurantism and authoritarian drift into a nation where "the principles of democracy and the rule of law are respected", maintaining some constants from the era of the Law and Justice party (PiS). ), such as support for Ukraine and firm border control.
He recalled that Ukraine fights for democracy and the rule of law as in Western countries and noted that "by some strange coincidence, politicians who attack the foundations of Western democracy are at the same time anti-Ukrainian."
Regarding immigration, Tusk stated that "other religions and cultures can be respected, but we must be aware of the migration of people for different reasons. We must distinguish between tools that serve to reinforce Poland's sovereignty and those that serve at a European level. or global," he said.
According to Tusk, Poland must take co-responsibility for the protection of the European Union's borders. "There will be no place for visa trading in my government's program. There will be no tolerance for fraudulent activities. The eastern Polish border will be a hermetic border," Tusk said.
"Our program has been drawn up by the Poles, with whom we have met over the last two years, and it is painfully concrete, while you - said Tusk, addressing the PiS deputies - have blatantly wasted the last two months, using them to ensure economically to your fellow party members. The list of what you have done will be available to the public, we will take care of it."
In Brussels and in the ears of the millions of citizens who in the elections of October 15 made change possible by voting for the opposition parties that now form the government tripartite -Civic Coalition, Third Way and Lewica-, the attacks on PiS and Tusk's announcement of a return to the rule of law spark enthusiasm, but, for the moment, it is only a siren song.
The PiS is a minefield. He has had eight years to dismantle the rule of law and he has done so conscientiously. It has infiltrated and entrenched itself in all State structures. Including the Constitutional Court. Recomposing what is broken will be a Herculean task and the president of the TC, Julia Przybska, a conservative judge with close ties to the PiS, will not make it easy. She has already called Tusk's reform plans "shameful" and vows to defend the Polish Constitution against such "calls for anarchy." And with Przybska, the majority of the magistrates appointed after the controversial judicial reform of 2015 that sowed the crisis with Brussels.
As an investiture gift to Tusk, the TC issued on Monday, after having postponed hearings on numerous occasions, a ruling that does not recognize the competence of the European Union to impose economic sanctions on Warsaw. The ruling considers unconstitutional the provisions of the Treaty on the Functioning of the European Union (TFEU) and the parts of the EU statute that allowed Poland to be imposed two daily fines in 2021. The sanctions referred to the activities of the Polish Disciplinary Chamber, a body abolished a few months ago, and to the operation, against orders from Brussels, of the Turów mine, an open-pit coal exploitation that was denounced by the Republic. Czech due to its polluting effects.
The ruling of the TC creates a compromising situation for Tusk, since its binding nature will prevent Poland from satisfying the fine imposed by the EU and this could lead to new disagreements with Brussels. Between the two fines, both of half a million euros per day, the Polish State already owes more than 600 million euros to the EU.
Tusk will travel to Brussels on Wednesday after taking the oath of office before the Head of State, Andrzej Duda. Its objective is to release the 36 billion euros that the European Commission blocked from Poland for non-compliance with the rule of law, but it will not be able to guarantee that Warsaw complies with community principles and values in the short or medium term.
Tusk's tripartite has a parliamentary majority, but PiS hates losing and plays with an advantage. His leader, Jaroslaw Kaczynski, not only has not welcomed the new Government, but after the parliamentary election of Tusk as Prime Minister he unexpectedly went up to the Sejm rostrum to insult him. "I don't know what your grandparents were like, but you are a German agent," was the reply that the man who determined the destinies of Poland at will for eight years, without right, attributed to Tusk's speech, in which he dedicated the victory of liberal forces to his grandparents and remembered how he had to endure day after day being accused of working for Germany during the election campaign. Kaczynski has not apologized for that incident despite the criticism he has received. He still feels strong, although in the opposition, and he is.
The success of the Tusk Government and relations with Brussels depends on the restoration of the rule of law in Poland and that means reforming the National Council of the Judiciary. According to the Polish Constitution, this is the body that proposes candidates for judges to the President of the Republic. However, during the last two legislatures since 2015, the Council has successively been filled with judges sympathetic to PiS, as the dominant force in Parliament. This allowed the effective judicial review of the Council's decisions to be abolished in 2018 and, starting in 2019, the possibility of appeals against the decisions of the Council's candidates to join the union. Complaints that were already pending were declared resolved by operation of law.
As a result of these reforms, the National Council of the Judiciary has lost its independence, as confirmed by rulings from the European Court of Justice (ECJ) and the Supreme Administrative Court of Poland.
Closely linked to the constitutional reorganization of the politicized National Council of the Judiciary is the question of what to do with the so-called neo judges. These are the approximately 2,000 judges who were appointed during the illiberal and autocratic PiS government with no rights.
And then there are the so-called double judges, magistrates who were appointed by PiS in 2015 to replace judges duly elected to the TC by the majority of the previous Government. There is an infringement procedure pending before the CJEU.
Due to the illegality of the double judges, the validity of more than 80 sentences handed down since 2015 with their participation is questioned, including the sentence that toughened the abortion law in line with PiS policy.
The hands of the future Government seem tied for the moment. Experts believe that until at least the end of Przybska's presidency, at the end of 2024, fundamental changes are unlikely. This means that the TC will maintain a veto capacity in the legislative process. The alternative is to wait and build majorities as a result of the expiration of the mandates, but that would not happen until mid-2026, at the earliest. Half of the term would have already passed.
The thing is not there. Poland is the only EU country where the Minister of Justice is also the Attorney General. It should be possible to correct this anomaly, since a prosecutor's office led by a politician from the government side can be extremely politicized and misused for political purposes; many observers believe that this has already been the case since 2016 in the person of Zbigniew Ziobro. Tusk's team has prepared a draft for the separation of both offices, but, as with all legislative changes, this reform project is fraught with difficulties. This is because all of them must be signed by Duda, who comes from the PiS side. Without his blessing, there are no reforms. His term extends until August 6, 2025.
