European Commission Vice-President Vera Jourova left no doubt as to what she thought of a deal with the Polish government. When asked by Green MEP Daniel Freund whether a law passed by the Polish parliament met the so-called milestones of the recovery plan, Jourova replied on Thursday in the EU Parliament: “No, it doesn’t.”
Poland will have to reconsider the conditions and if there is no adequate answer in the form of legally binding rules for Polish judges that correspond to the “milestones”, “we will not pay the money”, clarified the Czech, who as commissioner is responsible for the portfolio values and transparency . According to the dpa news agency, representatives of the Commission had previously made it clear in an analysis during proceedings before the European Court of Justice (ECJ) that the conditions for paying out the Corona billions to Poland were not met.
This is a heavy blow for the national conservatives in Warsaw – one that nobody would have expected in June. After a visit by Commission President Ursula von der Leyen to the Polish capital, things seemed clear: the Polish government is finally getting the 35 billion euros allocated to it from the Corona development fund. Money that the country urgently needs.
The economic situation is tense: According to the Polish statistical office, inflation in May was 13.9 percent – one of the highest values in Europe. Added to this are the four million refugees who have crossed the border into Poland since the Russian invasion of Ukraine. Poland has received by far the most Ukrainians who have left their homeland since February 24. Their integration is expensive.
Brussels was therefore convinced that aid money could no longer be withheld from Poland. The front-line state has finally risen to become Ukraine’s most important partner and sets the pace for European Ukraine policy. But now the turnaround – why?
Warsaw submitted its construction plan to the Commission as early as May 2021. In such a plan, the EU members must explain what investments they are making and what reforms they may want to carry out in order to receive funds from the so-called Recovery and Resilience Facility (RRF) to overcome the consequences of the pandemic. However, the Commission withheld the billions for Poland because it did not see constitutional standards in the country being met.
The ruling Law and Justice Party (PiS) has been reorganizing the judicial system for six years now: judges have been dismissed and new chambers created, among other things. According to experts, Polish courts are no longer independent. In 2021, the Constitutional Court, staffed by party loyalists, declared substantial parts of the European treaties incompatible with Polish law, including Article 19, which establishes the authority of the ECJ. Since then, not only Poland, but the entire EU has been caught in a rule of law crisis. Warsaw simply does not implement interim orders from the ECJ. One million euros in penal sanctions per day are therefore incurred.
In this situation, it would be impossible for the Commission to pay Poland. Everyone in charge in Warsaw was aware of that. On the initiative of Polish President Andrzej Duda, the lower house of parliament passed a law (“Lex Duda”) before von der Leyen’s visit in June, according to which parts of the dismantling of the judiciary should be reversed. Among other things, a dissolution of the controversial Disciplinary Chamber at the Supreme Court is planned.
In Brussels, this was taken as a sign of good will. At that point it was clear: Poland wants the money, Brussels wants to pay it out. Von der Leyen is a supporter of such a deal with the Polish government.
However, leading experts such as London constitutional lawyer Laurent Pech warned the Commission that the changes in the new law were only cosmetic. In fact, they circumnavigate a number of issues between the Commission and Poland. For example, the disciplinary chamber is only to be replaced by a “chamber of professional responsibility”. Eleven judges of this chamber are to be appointed by President Duda. The assumption is that the chamber will simply be renamed.
“We are examining the new law on the disciplinary regime,” Jourova wrote on Twitter on Thursday. “But this new law does not ensure that judges can question the status of other judges without risking disciplinary proceedings.” Specifically, it does not touch the State Judicial Council (KRS).
Experts question whether people who are promoted to judges through this body are allowed to work as judges at all. Since 2017, the parliament, in which the PiS has a majority, has been able to occupy the council, giving it control over the judiciary. Critics speak of a “politicization of the judiciary”.
“The situation is absurd,” says MEP Daniel Freund WELT. “Before the ECJ, the commission criticizes the state justice council – i.e. how the judges are appointed. But that should suddenly not be a problem for the deal on the reconstruction funds.”
In fact, new cases against Poland have started before the ECJ this week. Preliminary decisions by judges Krystian Markiewicz and Waldemar Zurek from the district courts in Katowice and Kraków in 2021 are key. Superficially it is about consumer law, but about such that was spoken by judges who had been confirmed by the KRS. So are the judgments valid? If not, around 2,000 judges would be officially installed illegally in Poland, and thousands, if not tens of thousands, of judgments would be invalid.
The Commission’s position on this is ambiguous. Daniel Freund, however, finds clear words: “The President is undermining the rule of law in Poland and the efforts of her own people,” he says.
“I see that the Commission is divided on the issue of Poland: the President is aiming for a deal with Poland, she wants to release the funds, but some influential commissioners want to remain consistent on the rule of law and insist that Poland fulfill the conditions,” says Jakub Jaraczewski, rule of law expert at the University of Poznan, in conversation with WELT. “These commissioners include Jourova, Reynders, Vestager and Timmermans,” he lists. Nothing is happening at the moment. That is remarkable. “Because after von der Leyen’s trip to Warsaw, it looked as if the money would soon be released,” said the expert.
However, those who do not want to pay Poland the money are not necessarily in favor of giving nothing at all to Poland – like Daniel Freund. “Solidarity with Poland is needed right now, but not at the price of the rule of law,” he says. He refers to the refugee aid, but also to the fact that Poland has given 240 tanks and other heavy equipment to Ukraine. At this point, according to the deputy, one could help. The stocks could be replenished. “I say: tanks for Poland instead of destroying the judiciary,” said Freund.