The European Commission has given its approval to a long-awaited Covid recovery strategy for Poland, overriding worries that Warsaw is making cosmetic modifications to its highly criticized legal system in order to access EU cash.
The deal will be signed by EU commission president Ursula von der Leyen in Warsaw on Thursday, although Poland must complete additional judicial reforms to earn €35.4 billion (about $40.8 billion) in bailout aid and loans.
It is a symbolic moment in the six-year fight for an independent judiciary in Poland, but other cases are still pending.
Von der Leyen said the Polish initiative would benefit the country’s decarbonization efforts, energy sovereignty, and investment climate.
“The endorsement of this strategy is connected to Poland’s clear undertakings regarding the judiciary’s independence, which must be fulfilled prior to any real payment,” she added.
The Covid recovery plan has been stuck for months because Poland’s rightwing nationalist government would not relinquish control over the judicial system, raising a red flag on legal reform.
In October last year, Von der Leyen demanded three things in order for the money to be disbursed: the dismantling of a judicial disciplinary chamber within Poland’s supreme court; the reform of the judicial disciplinary system; and the restoration of judges removed under the current legislation.
The Polish lower house, the Sejm, voted last week to disband the supreme court’s disciplinary chamber. Warsaw wants this to enable it to access held back EU funds. According to legal experts and opposition parties, the legislation is not strong enough.
The bill, according to an open letter this week signed by 11 legal and human rights organizations, including the Polish Judges Association, “lacks important structural adjustments and does not meet the anticipations drafted in October 2021 by the [commission]”.
The organizations express concern that the bill does not ensure the restoration of judges “unjustly removed by the punitive chamber,” but rather establishes a procedure for reviewing their cases that “does not assure an independent and unbiased appraisal.”
Furthermore, the letter expresses: “As a consequence, the judges who, by all accounts, have shown the greatest level of professionalism and integrity, putting their careers and personal freedoms on the line in order to defend principles established in [the EU treaty], will now be forced to undergo an insulting ordeal before a body that was appointed in a similar flawed way.”
At least two vice-presidents of the European Commission, Margrethe Vestager and Frans Timmermans, voted against it. Věra Jourová, the commission vice-president in charge of upholding the law, had misgivings about agreeing to Poland’s plan but was not in attendance when the EU executive’s top officials met on Wednesday.
The head of the commission is apparently eager to bring an end to the disagreement with Poland, a loyal ally of Ukraine that is harboring 3.6 million refugees from Russia’s war of aggression.
The EU authorities also said that adopting the recovery strategy – which includes policies to aid Ukrainians in the Polish labor market – does not imply giving money out.
“It’s wrong to say, ‘Cash for Poland,’” an EU official explained. “This is the plan’s approval; it’s only the first step toward receiving that money – a significant one though, but the more crucial one will be whether Poland sticks to its promises.”
The Commission will make that decision in late June or early July on whether Poland has fulfilled the three milestones set by Von der Leyen to get the funds.
Critics have already indicted the commission of making unwarranted compromises. Once the Polish government is able to describe a procedure to restore suspended judges, Brussels will be ready to dispense the money.
“Giving the Polish government greater freedom and time in this process is an unnecessary privilege,” said Anna Wójcik of the Central European University’s democracy institute. “It will boomerang on the commission and reduce public confidence in its actions as ‘the guardian of the treaties'”.
According to Wójcik, the bill passed by the Sejm is a smokescreen that just renames the body responsible for judicial disciplinary hearings.
“It does not address the fundamental problem with the Polish judicial appointment process, which raises doubts about their independence and European convention norms: the fact that a politicized body, the National Council for Judiciary, is in charge of selecting who can be a judge in Poland,” Wójcik stated.
“It’s not evidence of a government flip-flop and a resurgence of democratic values in Poland. It’s just another attempt to play catch me if you can, with the express goal of obtaining as many euros as possible before the elections.”