The 2025 Polish Presidency of the Council

On 1 January 2025, Poland will assume, for the second time in history, the rotating presidency of the Council of the European Union. The six months of Polish leadership at the Council will come at a challenging time. This short period will see the return of Donald Trump, the volatile German snap parliamentary election, fallout from the Romanian presidential vote being annulled by the country’s Constitutional Court, and the buildup to Poland’s own presidential election. All of that is happening as the war in Ukraine continues and hybrid threats to EU security are ever-present. Despite the presidency of the EU no longer being as pivotal as in pre-Lisbon Treaty times, the role comes with responsibilities and expectations, which Poland will find both easier and harder to meet due to various factors.

Security, first and foremost

The theme of the Polish presidency will be security, and as one official in Warsaw told me, “[w]e will conjugate the word ‘security’ through all possible cases”. This statement has a second meaning that is clear to speakers of Polish, a language famous for its extensive conjugation of nouns, indicating a desire for mainstream security through all areas of internal and external EU policies. Poland’s choice of this particular area as the core theme of its presidency is hardly a surprise. It borders two countries openly hostile to the EU (Belarus and Russia) and is heavily invested in Ukraine winning the war against Russia, seeing a hypothetical victory for Moscow as a first step towards aggression further West. The fallout of the war in the east has had a direct impact on Poland’s security, ranging from the presence of Russian spies such as Pablo Gonzalez to the issue of irregular migration facilitated by Russia and Belarus and then forced by Belarusian authorities through the borders with Lithuania and Poland. Warsaw has spent the last two and half years promoting the joint strengthening of European security against Russia on EU fora and has been a vocal proponent of European rearmament.

While the rule of law has not been indicated as a key priority for the Presidency, Poland nevertheless expressed interest in focusing on some of its elements. The Presidency’s programme regarding the General Affairs Council starts with recognising the rule of law as a cornerstone of the EU and a vow to maintain its standards, including an emphasis on the role of civil society and free media. The rule of law is also invoked in the context of EU enlargement and promoting it as a European value in candidate countries. The protection of fundamental rights in criminal and civil law, reinforcement of the resilience of justice systems and the strengthening of the role of civil society in protecting the rule of law are highlighted in the Presidency’s working programme regarding Justice and Home Affairs. The Presidency also sets out to continue the EU’s accession to ECHR but specifically notes the outstanding issue with ECtHR jurisdiction in the area of Common Foreign and Security Policy. Thus, it’s clear that Poland sets out to prioritise the rule of law in multiple internal and external policies despite not making it a primary topic of its Presidency.

Enabling factors for a value-driven presidency

Two factors enable Polish leadership’s potential success in the Council. First, the Polish Presidency will come hot on the tail of the Hungarian one. The six months of Viktor Orban being in the driver’s seat at the Council played out both worse and better than most experts predicted. Orban embarked on a series of highly damaging foreign trips, most notably meeting the EU’s chief enemy, Russian President Vladimir Putin. In doing so, the Hungarian Prime Minister undermined the unity of the EU and mocked the idea of the Presidency representing the EU externally. However, back in Brussels, the Hungarian presidency turned out to be more of a morose technocratic affair. In June 2023, I had the pleasure of attending an event on democracy and the rule of law organised by the then-Swedish Presidency of the Council, where the Hungarian then-Minister of Justice, Judit Varga, Orban’s Brussels spearhead, spoke of grandiose plans to have the Hungarian presidency lead work on reforms to “bring the European Commission to accountability on the rule of law” and “stop attacks against Hungarian and Polish governments”. None of that became a reality: Judit Varga ended up losing her post and getting banished from Hungarian political life after a school sex abuse-related pardon scandal she took part in, Orban lost his crucial ally – the Polish government under PiS, and the Hungarian presidency turned out to be mostly about routine meetings on mundane topics, and even those ended up being partially boycotted by Member States aghast at Orban’s posturing.

Yet, presidencies are high on symbolic values. This creates a perfect opportunity for the Polish government, led by centrist pro-European Prime Minister Donald Tusk, himself a veteran of Brussels corridors after his stint as the President of the European Council, to start on a different note. Tusk enjoys a unique situation, being the only centrist EU leader of a major Member State whose footing back home is solid on the back of several political victories and leading a coalition of centre-right, liberal and left-wing parties that are on the same page with most items related to Poland’s membership in the EU and regarding the rule of law. This combination of factors makes the Polish government uniquely positioned to further its agenda in Brussels without an economic or political crisis home holding it back. Partners in EU institutions and almost all Member State capitals are poised to react positively to the ideas put forth by Poles.

Another enabling factor for the Polish government is that it’s currently carrying out an exceptional endeavor to repair the rule of law after eight years of damage. It is an unprecedented process on a global scale, as Poland is not transitioning from dictatorship or autocratic rule but rather from a deeply damaged democracy presided over by a majority that set out to dismantle judicial independence and checks & balances to solidify its rule. The Tusk government vowed to restore the Polish courts, the judicial council and the prosecutor’s office. This process is contested by state institutions that remain under the political influence of the previously ruling party PiS, such as the President of Poland, the Constitutional Tribunal, and the National Council of Judiciary. This makes the Polish process unique, as transitional processes are frequently carried out in an environment that represents a “clean slate” with little internal opposition to the new governance. Several aspects of those reforms and their progress are discussed elsewhere in the current symposium. The overall picture is that the Polish government and parliamentary majority are developing an array of solutions that, if implemented and successful, could form a blueprint for similar operations elsewhere. This experience might be beneficial for countries experiencing a similar rule of law crisis, such as Hungary and Slovakia, or ones where the rule of law is increasingly at risk – such as the Netherlands or the United States. No matter their final outcome, the Polish experience is already yielding invaluable lessons on how to repair the rule of law, strengthening the credibility of the Polish Presidency in areas of justice and home affairs.

Old ghosts, new constraints

However, Polish ambitions for promoting the rule of law will be checked by two significant factors. First of all, Poland’s own track record with security and the rule of law is spotty. Some of these are issues of the long past, such as the story of the Polish government allowing the US to operate a CIA black site in Poland in the 2000s, where detainees in the so-called “war on terror” were tortured and mistreated with consent from the Polish authorities. Despite partially complying with the ECtHR judgments in the cases Al Nashiri and Abu Zubaydah vs Poland, where the Strasbourg court found Poland to violate the ECHR on multiple counts with regard to the country’s complicity in the CIA black site operation, accountability for these events never materialised, and investigations into just one official’s alleged crimes were dropped. The current government has not indicated any action on this, and the case appears cold for all practical purposes. More recent is the situation regarding the use of surveillance software, particularly Pegasus spyware, by the previous PiS-led government against opposition politicians, lawyers, judges, journalists and critics. Criminal investigations are ongoing, and a special parliamentary committee has been assembled to examine the matter; one person, former Deputy Minister of Justice Michał Woś, has been charged so far, and two alleged key perpetrators, former governmental officials Mariusz Kamiński and Maciej Wąsik, have been since elected to the European Parliament, possibly limiting the reach of criminal accountability. While the government’s will to resolve the matter of abuse of surveillance for political purposes is palpable, questions arise as to whether the Tusk administration will be willing to reform the legal framework for the use of eavesdropping and spyware by law enforcement in Poland and to address the issue of notoriously weak judicial oversight over surveillance.

Finally, there are issues on the intersection of the rule of law and security that can be squarely attributed to the current government, chiefly among them to the continued use of pushbacks against aforementioned irregular border crossings from Belarus and the use of the so-called “exclusion zone” on the border where freedom of movement and media access is limited. Hopes abounded that Prime Minister Donald Tusk would end the migration and asylum-related practices of PiS era, but these expectations met a brutally pragmatic policy of the new government, which, in an apparent attempt to prevent becoming politically outflanked on the migration front by the right-wing opposition, continues some of the most problematic practices. The Tusk government has also, on at least one occasion, flat out ignored an institution of the EU law, refusing to execute a European Arrest Warrant issued by Germany in connection to North Stream sabotage by alleged Ukrainian perpetrators who fled to Poland. While clearly an isolated political move and not part of some broader policy to flout EAW in principle, this move harkened back to the PiS government discarding EU law whenever it was politically convenient.

Secondly, the Polish project to rebuild the rule of law after eight years of damage is only partially complete. While some limited progress has been achieved using secondary legislation and discretionary powers of the Minister of Justice / Prosecutor General, the fact of one person holding ex lege both offices is, in fact, one of the issues. However, the sweeping reforms required to repair the rule of law in Poland need acts of the parliament in order to fully restore the National Council of Judiciary, the Supreme Court, the Constitutional Tribunal and the prosecutor’s office to their proper condition and to resolve the issue of “neo-judges” appointed or promoted with the participation of the politically captured National Council of Judiciary. Unfortunately, President Andrzej Duda will inevitably block such legislation. Despite some attempts to negotiate his cooperation with the Polish government early in 2024, Duda has assumed full opposition to the rule of law reform plans. Duda has two strong legal tools he can use to stop any legislation dead. He may use his power of legislative veto, which the ruling coalition cannot defeat in Sejm due to not having enough votes to pass the qualified majority required to defeat the veto or he may send the bill over to the Constitutional Tribunal before signing it into force, as he has already done with the bills on reforming the Constitutional Tribunal and the National Council of Judiciary. Such referral will also result in a bill’s demise, as the politically captured Tribunal will either find it incompatible with the Constitution or simply shelf the case indefinitely. The Polish government has recently begun to ignore the Tribunal to the point of refusing to publish its judgments in the Journal of Laws, but Duda will certainly respect its decisions or lack thereof. With the Polish presidential elections scheduled tentatively for May 2025 and the new President being inaugurated at a later date, Poland will spend its entire Presidency of the Council with the rule of law reform only partially done and no views towards major quick victories on that front.

To sum it up – the Polish Presidency will undoubtedly be a breath of fresh air following the Hungarian one, and between its clear commitment to EU law and shared values coupled with experiences in repairing the rule of law, Polish officials will have an opportunity to drive on several key topics that were entirely neglected by the Hungarian presidency. At the same time, Poland’s uneven record on protecting human rights and respecting EU law in the context of national security and the halfway-baked rule of law reform will keep it from fully realising the potential of the Presidency.