The European Commission is poised to approve a long-delayed Covid recovery plan for Poland, overriding concerns that Warsaw is making cosmetic changes to its heavily criticised legal system to unlock EU cash.
The commission’s president, Ursula von der Leyen, is expected to sign the agreement in Warsaw on Thursday, although Poland will have to undertake further judicial reforms to access €36bn (£30.68bn) in recovery grants and loans.
The decision marks a significant moment in the six-year battle for independent courts in Poland, while other disputes remain open.
Poland’s Covid recovery plan has been held up for months because its rightwing nationalist government had refused to loosen control over the judicial system, raising a red flag on changes to the rule of law. Last October, von der Leyen set three conditions for releasing the funds: dismantling a disciplinary chamber for judges within Poland’s supreme court; changing the judicial disciplinary system; and reinstating judges suspended under current rules.
The Polish lower house, the Sejm, last week voted to strike down the disciplinary chamber of the supreme court, a move Warsaw hopes will unlock the funds. Legal experts and opposition parties say the law does not go far enough. The bill “contains cosmetic changes …. And does not satisfy the expectations formulated in October 2021 by the [commission],” stated an open letter to von der Leyen this week, signed by 11 legal and human rights groups, including the Polish Judges Association.
The group warn that the bill does not guarantee the reinstatement of judges “unlawfully suspended by the disciplinary chamber”, but creates a procedure to look at their cases that “does not guarantee an independent and impartial judgment”.
The letter continues: “As a result, the judges who have, by all accounts, demonstrated the most respectable behaviour, risking their careers and exposing themselves to repressions and harassment for defending the principles laid down in [the EU treaty], will now have to undergo a humiliating procedure before a body appointed in the same defective manner.”
Three commission vice-presidents – Frans Timmermans, Věra Jourová and Margrethe Vestager – had qualms about approving Poland’s plan, but are not expected to oppose von der Leyen when the EU executive’s top officials meet later on Wednesday.
The commission president would like to end the dispute with Poland, a staunch ally to Ukraine that is sheltering 3.6 million people who have fled Russia’s war of aggression.
EU sources stressed that approving the recovery plan – which includes measures to help Ukrainians in the Polish labour market – does not mean handing out the money.
“It’s not correct to say: ‘Cash for Poland,’” an EU official said. “This is approval of the plan, the first step towards getting that money – an important one of course – but the more important one will be whether Poland will deliver what it promised.”
The commission will decide in late June or early July whether Poland has done enough to meet von der Leyen’s three milestones and unlock the money.
Critics have already accused the commission of making unnecessary concessions. Brussels would be ready to release the recovery billions once the Polish government could say there was a process to reinstate suspended judges, without waiting for them to return to their posts.
“Granting the Polish government more leeway and time over this process is an unnecessary concession,” said Anna Wójcik at the Central European University’s democracy institute. “It will backfire on the commission and diminish the trust of the rule-of-law defenders in its actions as ‘the guardian of the treaties.’”
Wójcik described the bill passed in the Sejm as a smokescreen that merely changed the name of the body tasked with judicial disciplinary cases.
“It does not address the core problem with the process of appointing judges in Poland that raises questions over their independence against EU law and European convention standards: the fact that a politicised body, the National Council for Judiciary, is key in recommending who can be a judge in Poland,” Wójcik said.
“It’s not proof of the government’s sudden change of heart and a return to democratic values in Poland. It’s just an attempt to play a long game of catch-me-if-you-can and trying to get as many euros before the elections as possible.”