Jerzy Kwaśniewski is the President of the Board and co-founder of Ordo Iuris Institute, and Chairman of the Ordo Iuris Foundation Council. He is also an attorney and managing partner of the Parchimowicz & Kwaśniewski Law Firm. Mr Kwaśniewski is a graduate of the Faculty of Law and Administration of Warsaw University, and a former scholarship holder at the University of Copenhagen, specialising in international commercial law and comparative constitutional law. He also completed courses organised by the Center for Ethics and Culture of Notre Dame University and the Catholic University of Leuven.

Apart from the Rule of Law conditionality mechanism, various procedures have been initiated against Poland by the European Commission. These are still ongoing. What is the current state of affairs in Poland in this regard and what is Warsaw doing to make sure these procedures stop once and for all?

Some of the judicial reforms were stopped by the veto of President Duda six years ago. Other reforms were implemented in 2017–2018 and they constitute the grounds for this conflict concerning the so-called rule of law principle raised by the European Union. Or, to be more precise, by the bureaucracy in Brussels, which opposes reforms concerning the judiciary—not understanding our local identity, our local history and urgent need for deep reforms that we have tried to implement. Due to this conflict, some of the reforms have been cancelled in the past two years. We are still waiting for a decision on the most recent law which the Parliament passed and President Duda sent to the Constitutional Court for review. Some suggestions of the European Commission give rise to very important constitutional issues in Poland as the EU-supported model of judiciary does not easily fit into the constitutional framework of our country.

What is the background of the conflict between the Brussels bureaucracy and Poland?

What they actually asked us to do is to violate our constitutional provisions concerning the prerogatives, i.e., the individual powers, of the President. Our President is elected in general elections with a very strong mandate. Although there is a government led by a prime minister with a very strong mandate as well, but given that he is elected by parliament, the PM is at a certain disadvantage. As opposed to that, the President holds plenty of powers, and—generally speaking—he is the guardian of the Constitution. One of his many powers is the unlimited one to nominate judges. Even though he is advised by a constitutional body called the ‘Judiciary Council’, the final decision in this regard belongs solely to the President. This doctrine on the sole decision of the President was reaffirmed by the constitutional court nearly 20 years ago, before any of the present conflicts, and before Poland acceded to the European Union.

Why does Poland need a judicial reform?

Poland is in a situation very similar to many countries of the Central European, or Intermarium Region. Poland still has some very prominent members of the judiciary, including justices of the Supreme Court, who were nominated by the Communist Council of the State and not by a democratically elected President. In those days, judges had to be members of the Communist Party to be nominated and they could be recalled from their positions by the Council of State if they were not following communist doctrine and fulfilling the expectations of the Central Committee of the communist party. Also,

the judges who were nominated in violation of the principles of the rule of law in the 1980s are still holding their offices and are still delivering verdicts.

They were also very vocal when it came to supporting the European Union side in this conflict on the rule of law principles. Therefore, the situation is very complicated, with various overlapping conflicts—we have the post-communist conflict, we have the conflict around the powers of the President and the Polish constitution, and we also have the conflict with the European Union over their attempt to implement measures that are not implemented in several Western countries.

What we have been experiencing since 1995, or maybe 2000, is a double standard, a differentiated approach of the European Union to the old member states, and the ‘newcomers’. 23 years ago, the first victim of that treatment among the new member states was Austria. The issue was related to the government of Jörg Haider. What we witnessed then was the emergence of the so-called ‘three wise men’, a trio nominated by the European Union to monitor the situation in one of the new member states—which was otherwise supposed to be equal to those that had been in the Union for some time.

Are we talking about the situation in which even Article 7 was nearly initiated against Austria?

Yes. Moreover, since 2000, the EU bureaucrats, relying mainly on the provisions of the subsequently adopted Lisbon Treaty, have been attempting to transform the concept of the rule of law into something unprecedented. These actions constitute attempts to weaponize the doctrine of the rule of law. Before 1995, and certainly before 2000, the European Union, in its first phase, when it comprised mostly Western countries, had the doctrine of law created to evaluate countries outside the bloc. At that time, there was a general consensus that whatever is happening in member states, it is happening in the family of states governed by the principles of the rule of law.

What events in Western countries could you recall from that time for which these rule of law procedures could be initiated today?

For example, at the beginning of the ‘commonwealth’ of the European Community, Charles de Gaulle conducted something really close to being qualified as a coup d’état and took over the government in France. Still, nobody of the founding fathers of the European Union reacted; no one suggested that such a move was against the rule of law.

Why not?

Because there was an assumption that anything happening in the family of European states is in accordance with the rule of law. They could have evaluated the state of affairs in Spain under General Franco, and said ‘You won’t be a member simply because you are not operating in line with the rule of law’. They could have scrutinised Greece under the rule of the colonels saying the same, and the same applied to Poland, Hungary, Bulgaria and others in the candidacy period. However, the problem is that this dubious approach persists until today, and we are still subjected to the same treatment even though we signed all those treaties declaring that we are all equal in the EU.

Some say that the rule of law concept currently in vogue in Brussels has been created to ‘pacify’ the nations into one big federalised union. Do you agree?

I am absolutely sure that this intuition is right. The concept of the rule of law in the EU has been evolving since the 1960s. For decades, this concept had never been used against a member state. Later,

the case of Austria proved to be the game-changer, following which the rule of law idea has become full-fledged and used against Hungary and Poland.

This weaponization is progressing, and more and more power is taken away from member countries and usurped by the unelected officials in Brussels and by the members of the European Parliament—all free from any democratic control. The European Parliament’s powers, in reality, are very limited. Yet, this does not stop them from flexing their muscles as experts in some astonishing fields, for example, the US presidential elections. This is simply because several members of the European Parliament consider themselves to be actual legislators within the ‘European state’. Although, as we all know, they are no legislators because the member states alone have this power under the current system.

Currently, there is no such thing as a European superstate…

No. Currently, it is a dream of some, which is slowly coming true. The concept was envisioned by Altiero Spinelli in his Ventotene Manifesto. We also have to remember, that after Brexit, the heads of three states, Angela Merkel, Francois Holland and the prime minister of Italy travelled together to the island of Ventotene to the tomb of Spinelli, to pay their homage.

What is the significance of this event?

Spinelli’s approach to a single state is quite communistic. He wrote it down very clearly that the superstate cannot be created with the consent of nations, because they will never grant their consent. Instead, it should be created by the ‘enlightened elites’.

Regarding the concept of the rule of law, political scientists often emphasise that, ideally, the governance of the state does not result in ‘rule by law’. However, the treaty system that established the European Union is a specific legal environment, which contains many loopholes—on purpose, and for it to be used benevolently. It is to be noted, in addition, that especially the post-covid regulations create a framework—the RRF Regulations—that give wide discretionary powers to the European Commission when considering the so-called ‘milestones’ as prerequisites for funding. According to my best knowledge, Poland is extremely hard hit by this development. Is that the case?

When combined, the wide range of tools that have been implemented by the European Union since 2020 have resulted in a system of sanctions at the disposal and arbitrary decision of the European Commission. The way I see it, these might be the long-missing and perhaps also the last necessary ingredients of the recipe of creating a superstate.

The aim is to exercise real power over economies to implement sanctions without the consent of the states.

Under the RRF, we are required to implement specific constitutional changes and concessions in favour of the European Union. They put Poland under the threat of bankruptcy by withholding funding. Naturally, the same applies to Hungary. It is worth noting, by the way, that the payment of funds due to several other member states is also still pending right now.

Is that so?

Yes. Many countries are still waiting for the actual money to arrive. What we are witnessing now is the acceleration, maybe the last stage, of the process of the complete federalisation of the EU.

Looks like someone in Brussels has taken the conclusions of the Conference on the Future of the EU for granted…

The conference concluded last year and it was a fake conference, where European bureaucrats were asking the people of Europe for their opinions. Of course, the bureaucrats were controlling the platform of this so-called opinion-gathering procedure. The conclusions reached in that process, presented by Guy Verhofstadt, said that the people of Europe want unanimity to be banned on all levels of decision-making, and asked that the European Parliament be granted legislative initiative. So, what are we talking about in actuality? It is the transformation of the European Parliament into a legislative actor, the European Commission into a government, and the European Council into a representative body. What is more important, however, is that the European Commission with its unelected personnel is to remain in power without any true democratic control over it.

So, you don’t think the upcoming European Parliament election will be a game-changer at any level, do you?

The idea of the followers of the communist approach to the EU is to create a new caste of elites to colonise European institutions and to petrify the system with thousands—if not millions—of beneficiaries. Sounds familiar, doesn’t it? We have experienced this throughout the 20th century, and now, here we go again. Of course, the next elections can be a chance to oppose that and to take over the European Parliament.

Do you think that is enough?

No. I do not. We have to disband the European Parliament and create an absolutely new institution, maybe according to Viktor Orbán’s concept, which as a result would be quite similar to how the Parliamentary Assembly of the Council of Europe works.

It would be a kind of a grassroots parliament, in the European context, of course. It could ensure that the people be more connected to their nations, more so than to the anomalous institutions of the European Union.

This would mean more control over the operation of the European Union; that is the biggest challenge we will all face in the European Parliamentary elections, and also in the national elections this year in Poland. This critical issue, still nearly unknown to the public, should be discussed by lawyers, philosophers and politicians in the public realm.

What are the financial burdens that Poland is forced to bear in the European Union today?

The amount that we were hoping to receive currently amounts to 15 billion euros, and the total is much greater than that. Then there is the case of the daily fines. A few weeks ago, we were pleased to hear that the European Court of Justice decided to lower the fines by 50 per cent for our coal mines because of the dispute we have with the Czech Republic. Poland is additionally fined for the implementation of its judicial reform, which I have already mentioned.

In light of the above, how does the Polish population relate to EU membership? Several media outlets float the idea of a Polexit from time to time…

In fact, this is a question that is being raised for the first time since the accession in 2004. Poland used to be—and probably still is—the most pro-European country in the EU, with an absolute majority of people supporting membership in the European Union. There is a full consensus on this issue among the political parties. Yet, for the first time,

the people, who are absolutely pro-European, are asking a question whether or not it is financially beneficial to be part of the EU.

What is the benefit? How do we calculate it? What is the cost of the common market? What is gained from the common market? What are we, and what are we not receiving from the direct funding? What kind of penalties do we have to pay?

So is this debate on the rise now in Poland?

Yes. The first reports have already been published in this regard. With time, it may happen that more and more people will say: ‘Okay, if the situation is like that, and especially, if it is not so beneficial from the economic point of view, maybe we should seek other solutions.’ For now, the majority of the public does not ask this question, but how long can one remain under such obstruction, and such treatment of the European Union, before one starts questioning the sensibility of membership?

What is the Polish people’s perception of what is currently going on against Hungary? What does the situation of Hungary look like from a Polish perspective?

As far as I know, people believe that actually the situation is just the same as in Poland. They don’t dig into the details, but they certainly feel solidarity. Whomever you ask—of course besides the radical liberal opposition—will say that if there is any hope in our situation, it is that at least our Hungarian partners are in a similar situation. So we may protect each other.

Despite there being some disputes about the assessment of the Russo-Ukrainian conflict?

This issue indeed caused the strongest bilateral tensions that I can remember. Our positions are not close to each other and it will take time to heal the wounds. However, this is mostly caused by the media that misrepresent the position of Hungary on the war. Those who are closer to the situation in Hungary know that the liberal media narrative that many people in Poland believe is not the true position of the Hungarian government. Also, the strategic situation of Hungary and Poland is different and we have our Polish interests to promote now.

Can you elaborate on that?

It is in Poland’s interest to create the deepest possible cooperation with Ukraine, to form a strong strategical partnership, and to reorient our strategic partnership with the United States, in spite of it being governed by the Democrats. Our goal is to have American army bases relocated from Germany to Poland, and to create the strongest land army in Europe. These are the strategic interests of Poland. At the same time, our energy market is much more diversified than that of Hungary. So, there are many differences between our countries and one needs to evaluate them in their entirety.

What in your view are the core issues regarding which the Hungarians and Polish people can always count on each other?

We should start with our historical, well-proven, stable partnership. If one has to name an organically well-performing strategic partnership, it is the one Poland and Hungary have. It is a partnership where the partners can simply trust each other, and plan the future strategically by performing joint actions and projects. Around this cooperation, we may successfully build regional cooperation between countries.

There are countries like Romania, Bulgaria and post-war Ukraine that would be willing partners of the Central European Region.

Establishing an alliance composed of these countries would be beneficial not only for us but for the entire European Union, because with the combined population of our region of about 100 million people we may successfully influence the European Union and counterbalance Brussels.

Do you have some kind of subregional confederation in mind, or just an informal cooperation, more organised than the V4?

Although the outcome is yet unknown, I think that any kind of ascent should start with the (re)construction of the infrastructure to connect the partners. At present, our region does not have the necessary infrastructure for transportation and energy. Currently, everything centres around Germany. After the completion of this task, we should think about declaring, promoting and following the basic values and principles shared by the Central European countries and nations. These principles will allow us to find a common language, free from the ‘progressive’ ideologies that characterise the West now. At events like CPAC Hungary, the necessary framework is being established. We should not put the cart before the horse. Transportation, infrastructure, and shared values—when we have these three, appropriate political cooperation will follow.