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Polish president Andrzej Duda on 12 June proposed 15 questions
for a consultative referendum that his office seeks to hold on
changing the country's constitution.
Proposed constitutional amendments will likely pave the way for
further disagreements between Poland and the European Union.
However, Poland's recent efforts to improve its ties with the
EU, the lack of the required parliamentary majority for
constitutional changes, and a stronger or more developed civil
society will probably mitigate the risks.
The immediate reaction of the Polish public and the political
opposition, as well as the EU, to the announcement on the
referendum's consultation points will serve as an early-warning
indicator of the nature of Poland's discussions with the EU on this
issue.
Duda proposed to hold the referendum in November, when Poland
celebrates the centenary of its independence. Duda argues that the
public "should be given a chance to reflect on whether the
constitutional changes are required". The current constitution was
adopted in 1997 and replaced the previous amendments adopted after
the fall of the communist regime. Above all, Duda's points for
consultation include:
Enshrining Poland's EU and NATO memberships in the
constitution, but also instituting supremacy of Polish law over EU
law
Retirement age guarantees (60 years for women, 65 years for
men)
Strengthening presidential powers on foreign and defense
policies
References to Poland's "thousand-year Christian heritage"
Room for concerns
Duda was nominated for the presidential post in 2015 by the
now-ruling right-wing/nationalist Law and Justice (Prawo i
Sprawiedliwość: PiS) party. Since coming to power in
October 2015, PiS has faced several disagreements with the European
Commission over the rule of law, related to judicial reforms. In
2017, Poland became the first EU member state to face the bloc's
rule of law investigation under Article 7 of the EU treaty (see
Poland: 10 January 2018: New centrist cabinet appointments likely
to placate, but not completely resolve, Poland's political standoff
with EU).
Since 2010, the Commission has faced a similar political impasse
with Poland's regional peer, Hungary, which is governed by the
right-wing/nationalist party Fidesz. In 2012, Fidesz embarked on a
wide-ranging constitutional review to "cut Hungary's ties with its
communist past". The Commission also criticized that exercise for
undermining the democratic system of checks and balances in
Hungary. That ultimately led to several subsequent amendments
before the Hungarian basic law came into force and further
deteriorated Hungary's relations with the EU.
There is a close alignment of some segments of domestic policies
between Poland and Hungary (the PiS leadership had stated in the
past that it deemed Hungary's case as an example of the legislative
changes that it would seek to enact). With this in mind and the
fact that Duda is a PiS nominee, the Commission would likely be
concerned that any changes to the Polish constitution would have
the potential to undermine Poland's rule of law or democracy. This
would likely cause yet another point of contention with the EU.
Outlook and implications
In our view, there are several factors likely to mitigate the
development of a disagreement with the EU similar to that with
Hungary during that country's constitutional review:
First, Hungary's constitutional changes were never put up for
public consultation, prompting heavy criticism from Fidesz's
opponents and the domestic political opposition.
Second, Hungary's Fidesz had a constitutional parliamentary
majority in 2012 that enabled it to pass the constitutional changes
without support from the opposition. Poland's PiS only holds a
simple parliamentary majority and would require the approval of the
opposition for constitutional amendments.
Third, PiS had in the past reacted to public pressure and
reversed unpopular legislation (e.g., the proposal for stricter
abortion laws in 2017). Peaceful, but large, public protests would
probably mitigate the risks that the PiS government would enact any
domestically publicly unpopular changes or those raising serious
concerns with the EU.
Last, but not least, under the premiership of Poland's Prime
Minister Mateusz Morawieczki, Poland seems to have moderated its
criticism of the EU (unlike Hungary, which is still governed by
Fidesz) and has even taken several conciliatory steps over the
judicial reforms to address the Commission's concerns. We project
that this trend is likely to continue, with Morawieczki probably
unwilling to undermine his progress on Poland-EU conciliation with
another political dispute or reluctant to reinforce Commission's
concerns over the country's rule of law and/or democracy.
Nevertheless, even if publicly approved, some points of
constitutional overview are likely to prompt the EU's criticism,
particularly those related to the retirement age. Such a provision
would contradict the current trend across the EU, where political
parties tend to address the issue of aging population, and
therefore its impact on public finances, through an increase in the
retirement age in general. Furthermore, enshrining supremacy of
Polish law over the EU law would also be likely to cause
disagreements with the Commission. Given that the proposed
referendum will - for now - only have a consultative rather than a
binding nature, we do not assess that new amendments would be
enacted in their current form in case of strong EU opposition.
Indicators to watch include the immediate reaction of the
country's opposition parties, which would have to approve any
constitutional amendments, as well as any response from the EU.
Progress on negotiations between the EU and Poland on the latter's
judicial reforms and reverting the Article 7 procedure will also
serve as a positive indicator of more conciliatory discussions with
Poland on its proposed constitutional changes.