The controversy surrounding the European Union’s SAFE loan mechanism has revealed something far more troubling than a mere policy dispute over defence financing. It has exposed, once again, a deep and growing tension between democratic legitimacy, constitutional order, and the increasingly instrumental use of European mechanisms by both national governments and EU institutions.
At the heart of the Polish case lies a simple constitutional truth: In Poland, the government does not possess an autonomous mandate to bind the state to long-term financial obligations of this magnitude without parliamentary authorisation and presidential assent. This is not a technicality. It is the essence of democratic accountability.
Constitutional limits and democratic consent
The SAFE loan proposed for Poland amounts to approximately €43.7 billion, to be spent within the next 5 years and to be repaid over up to 45 years. This is not an ordinary budgetary decision. It is a generational commitment—one that binds future governments, future taxpayers, and future strategic choices of the Polish state.
Under the Polish Constitution, such a commitment requires a clear statutory basis. It requires parliamentary approval and, crucially, the signature of the President. The veto issued by President Karol Nawrocki on March 12, 2026, therefore, is not an obstruction—it is the exercise of a constitutional safeguard.
Without a valid statute authorising participation in SAFE, the government of Donald Tusk simply lacks the legal competence to proceed.
Yet Prime Minister Donald Tusk has announced precisely that intention: To move forward regardless, relying not on a duly enacted law but on a government resolution, and to empower ministers to sign the loan agreement with the European Commission.
This is not merely a political manoeuvre. It is a direct circumvention of constitutional order.
Rule of law—selectively applied
For years, we have been told—often by the same political actors now in power—that the “rule of law” is the foundational value of the European project. Under the previous government Poland was subjected to intense scrutiny, financial pressure, and political campaigns in its name.
And yet today, we are confronted with a striking asymmetry.
A government that lacks parliamentary authorisation seeks to bind the state to a decades-long financial obligation. At the same time, the European Commission signals its readiness to sign such an agreement despite the absence of a valid domestic legal basis and despite a presidential veto.
This reveals a troubling pattern: The rule of law is invoked when it serves political ends and disregarded when it becomes inconvenient.
The Commission’s willingness to proceed under these circumstances demonstrates an instrumental approach to legality. It suggests that what matters is not whether national constitutional procedures have been respected, but whether the desired political outcome can be achieved.
Such an approach undermines not only the Polish constitutional order but also the credibility of the European Union as a community governed by law. It could also, as some leading voices in the opposition have already suggested, lead to a situation in which a future political majority in Poland might question its obligation to repay a loan granted and contracted by actors who knew all too well that they were acting in breach of Polish constitutional law.
SAFE and the transfer of sovereignty
Beyond procedural concerns, the SAFE mechanism itself raises profound constitutional questions and it should raise similar question in other EU countries.
The programme is not a neutral financial instrument. Regulation (EU) 2025/1106 of 27 May 2025 establishing the Security Action for Europe (SAFE) through the Reinforcement of the European Defence Industry Instrument embeds a system of conditionality, oversight, and control that effectively transfers key elements of defence policy from the national level to EU institutions.
Participation in SAFE requires Member States to submit periodic requests for disbursement, subject to evaluation by the European Commission. Funds may be withheld if proposals are deemed “unsatisfactory,” according to criteria that remain undefined.
This creates a situation in which Poland would be obligated to repay the debt regardless of whether funds are disbursed—a striking asymmetry that places ultimate control in Brussels.
Moreover, the mechanism explicitly links disbursement to the broader rule-of-law conditionality framework. Recent experience with NextGenerationEU demonstrates how such mechanisms can be used to exert political pressure, including the suspension of funds until desired policy changes are implemented.
In practical terms, this means that decisions regarding Polish defence procurement—traditionally a core element of state sovereignty—would be subject to external approval.
This is not merely coordination. It is a transfer of competences.
The SAFE framework also imposes structural constraints on procurement choices. Requirements regarding the origin of components and participation in joint projects may force Poland to abandon established strategic partnerships, particularly with the United States, in favour of European suppliers.
Such a shift would not necessarily enhance security. On the contrary, it risks undermining the operational coherence of the Polish armed forces and weakening long-standing alliances.
Furthermore, the programme favours large Western European defence manufacturers, potentially diverting resources away from the development of domestic industry.
Taken together, these elements amount to a significant erosion of national control over defence policy—an area that lies at the very core of state sovereignty.
As has been rightly noted, such a transfer of powers raises serious constitutional concerns. No democratic state can relinquish essential competences in matters of national defence without clear constitutional authorisation.
A political instrument disguised as financial assistance
The risks associated with SAFE extend beyond institutional design.
The mechanism contains built-in features that allow it to function as a tool of political influence. The possibility of suspending disbursements—based on vague criteria and subject to political interpretation—creates a powerful lever over national governments.
This is not a hypothetical concern. The experience of recent years has shown that financial instruments can be used to shape political outcomes within Member States.
SAFE extends this logic into the domain of defence, as demonstrated—if further proof were needed—by the decision taken in late January, in the run-up to the Hungarian parliamentary elections on April 12, to deem Hungary’s half-year request for the next tranche of the SAFE loan “unsatisfactory” and thus suspend its disbursement to Budapest.
The SAFE program may indeed even enable indirect interference in electoral processes, by creating uncertainty over future funding in the event of political change .
This is a profound departure from the principles of democratic sovereignty.
The fiscal context: a government in search of liquidity
The determination of the Tusk government to proceed with SAFE cannot be understood in isolation from the broader fiscal situation.
According to figures reported in March 2026, Poland’s budget deficit reached approximately 48.5 billion złoty (€11.3 billion) within the first two months of the year, with expenditures significantly outpacing revenues.
Commentators have pointed to a rapidly deteriorating fiscal position, rising debt, and growing pressure on public finances. In just over two years in government, the policies of Donald Tusk’s left-liberal coalition—so openly supported by the European Commission—have led to an unprecedented widening of the budget deficit, from 5.3 per cent of GDP at the end of 2023, when he took office, to an estimated 6.8–7.0 per cent in 2025, driving public debt up from under 50 per cent of GDP at the end of 2023 to almost 60 per cent at the end of 2025.
In this context, SAFE appears not merely as a defence instrument but as a means of alleviating budgetary constraints.
The logic is straightforward. By financing defence expenditures through external long-term borrowing, the government can free up domestic resources for other purposes. In effect, the loan functions as a mechanism for reallocating national funds.
This interpretation is consistent with the broader narrative emerging in public debate in Poland: That the Tusk government is seeking external financing to maintain fiscal flexibility amid mounting pressures.
Yet such an approach carries its own risks. It replaces immediate constraints with long-term obligations, shifting the burden onto future generations while failing to address underlying structural issues, including those linked to corruption.
The electoral dimension
Perhaps the most troubling aspect of the SAFE controversy lies in its potential impact on democratic competition.
If the European Commission proceeds with the loan despite its questionable legal basis under Polish law, the resulting arrangement could become a powerful political instrument.
On the one hand, the government may argue that any change of political direction—particularly a return to a conservative majority—would jeopardise the flow of funds, thereby weakening national defence.
On the other hand, the reallocation of domestic resources made possible by SAFE could enable increased spending in other areas, including social programmes, in the run-up to elections.
This creates a dual advantage: A narrative of external dependency combined with enhanced fiscal capacity for domestic policy.
Such a scenario would raise serious concerns about the fairness of the electoral process. It would effectively link access to financial resources with political alignment, undermining the principle that voters should determine the direction of the state without external pressure.
A test for Europe
The Polish case is not an isolated anomaly. It is a test.
It tests whether the European Union respects the constitutional identities of its Member States. It tests whether the rule of law is applied consistently or selectively. And it tests whether financial instruments are used to support cooperation or to reshape political landscapes.
For Poland, the issue is clear. Without parliamentary approval and presidential assent, the SAFE loan lacks a valid legal foundation. Proceeding in its absence would constitute a breach of constitutional order.
For the European Union, the stakes are equally high. By choosing to engage with a government acting beyond its constitutional mandate, the Commission risks further eroding trust in European institutions.
The lesson is simple: Legality cannot be conditional, and sovereignty cannot be treated as an inconvenience. If Europe is to remain a community of law, it must begin by respecting the law—especially when it is most inconvenient to do so.
Attorney Jerzy Kwaśniewski is President of the Board and co-founder of Ordo Iuris Institute for Legal Culture and Attorney and Managing Partner of Parchimowicz & Kwaśniewski Law Firm, Poland
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