Opinion: How Donald Tusk can get around Poland’s president

By Mujtaba Rahman, Politico EU | 7 December 2023 

Heading up a pro-European Union liberal government intent on re-establishing rule of law, former European Council President Donald Tusk’s return to power in Warsaw has been met with relief and enthusiasm in Brussels and most other EU capitals.

But that’s where the good news ends.

While Tusk’s government will inject positive momentum into relations between Warsaw, Brussels and other European capitals, the major political challenge that now awaits is whether Poland, under Tusk, will be able to access its roughly €59 billion tied up in the Recovery and Resilience Facility (RRF) — the EU’s post-pandemic vehicle designed to facilitate economic recovery after COVID-19.

Given Brussels’ concerns — largely over rule of law, and specifically over judicial independence — under the outgoing Conservative Law and Justice (PiS) government, the facility has yet to disburse any money to Poland at all.

In theory, a disbursement should now be relatively easier under the government Tusk is forming. But reality is always more difficult.

Problematically for Tusk, President Andrzej Duda remains in office. And Duda, who is aligned with the outgoing PiS government, is threatening to veto all legislation put forward by the new government that’s aimed at overturning the PiS’s judicial reforms. However, these reforms are a prerequisite for Warsaw is to unlock its billions from the RRF.

Duda’s stance isn’t surprising. He remains highly popular among PiS voters, and helping the incoming government secure access to billions of euros would probably alienate some of his supporters. And should the president wish to position himself as a potential successor to PiS Chairman Jarosław Kaczyński, maintaining this support will be crucial.

Moreover, the PiS faces local and European elections next year, ahead of which it won’t be in Duda’s interest to grant Tusk such a major political success. Also, passing the judicial reforms Brussels is seeking would reduce the scope of Duda’s powers, limiting his political influence — which he’s likely to resist.

Duda, who will remain in office until August 2025, is therefore likely to disrupt Tusk’s reform agenda, calling into question the incoming government’s ability to tap the money Poland is owed. As the facility expires in 2026, the president could seriously frustrate the country’s access to these funds — or its productive use of them — if the money is delayed for much longer.

Thankfully, this isn’t where the story is likely to end. Rather, the change in government and Duda’s looming veto could be seen as legitimate reasons for the EU to renegotiate Poland’s recovery and resilience plan, which defines the reforms that serve as the basis for a country’s disbursements. And Tusk will almost certainly seek such a renegotiation to circumvent the president’s veto.

Indeed, article 21 of the RRF’s regulation allows for the renegotiation of a member country’s plan in case of “objective circumstances.” And in this case, Poland’s change in government and Duda’s unwillingness to approve legislation could be seen as such.

But a renegotiation could take several months, and it would be far from straightforward.

First, it could involve changing the order in which reforms must be implemented, thus enabling the government to access some money based on progress in nonjudicial areas. The judicial reforms could then be addressed once Duda’s term has ended — although this would assume he’ll be succeeded by one of Tusk’s allies, and Brussels never likes to get involved in the “internal affairs” of a member country.

Moreover, any renegotiation would have to be carefully calibrated to ensure Poland will eventually meet the EU’s standards on judicial independence. Otherwise, opposition from the European Parliament in particular, as well as other member countries that are also under scrutiny for their adherence to rule of law, would probably derail Warsaw’s efforts.

Political factors will almost certainly be in play here. Having ousted the PiS there’s tremendous goodwill in the EU to help Tusk.

Moreover, he has leverage: European Commission President Ursula von der Leyen is keen to secure a second term following the European elections in June. And this will require the backing of her political family — the European People’s Party — where Tusk and his Civic Platform are now arguably the most important players. For it’s unlikely the European Council will support von der Leyen unless she can line up her own troops to support her first.

Concerned as it is about a return to power by the PiS, it’s in Brussels’ interest that support for the Tusk government remains high and the coalition stable — something that RRF funds would help.

This makes Poland a perfect example of where it would be in the EU’s interest to think politically — and not just legalistically. Let’s hope it does so.