Poland is set to receive the first tranches of the EU's recovery fund while national judges remain under the effects of the disciplinary chamber of the Supreme Court, a controversial body that is largely seen as a tool of government encroachment upon the judiciary and that the European Court of Justice has deemed incompatible with EU law.
Poland had requested a total of €35.4 billion – €23.9 billion in grants and €11.5 billion in cheap loans – from the bloc's collective fund, designed back in 2020 to weather the economic crisis triggered by the COVID-19 pandemic.
The Polish plan was blocked for more than a year over persisting concerns that judicial independence was under threat by the encroachment of the executive and legislative powers.
But after months of back and forth between Brussels and Warsaw, the European Commission announced on Wednesday the official endorsement of the Polish programme.
During internal deliberations, five EU Commissioners, including Frans Timmermans and Margrethe Vestager, voted against or voiced reservations about the executive's approval, Euronews has learned.
In exchange for this contentious green light, Poland has agreed to carry out two key judicial reforms before any payment of recovery funds is processed:
To reform the disciplinary regime for judges and replace it with a new body.
To review the cases of the judges affected by the rulings of the disciplinary chamber.
Regarding the first demand, the Polish government has already tabled a possible replacement: a "Chamber of Professional Responsibility" that would be tasked with vetting magistrates, rather than punishing them.
Brussels has said the new body must comply with EU law standards, but Iustitia, the largest association of judges in Poland, has warned the proposed chamber "will not prevent the Polish executive to exert control over judges [and] thus further undermining their independence."
However, it's in the second milestone where a potential loophole appears: Brussels has asked Poland to give disciplined judges the right to have their cases reviewed by an impartial and independent court.
The present chamber has the power to impose fines, salary cuts, suspensions and the lifting of immunity. In 2021, it took decisions in over 200 cases, 122 of which involved judges, with 25 resulting in a final waiver of immunity. More cases are still pending. The charges are varied and range from "communist crimes" to drunk-driving and corruption.
Until recently, the Commission had insisted on the "conditio sine qua non" to reinstate unlawfully dismissed judges. As it stands now, Poland only has to demonstrate the legal review has begun, not that it has concluded or corrected the wrongdoing.
"The review process can be started at the request of an affected judge," said an EU official speaking on condition of anonymity. "The first hearing can take place in three months after the request and the whole process can be completed in 12 months."
"Some judges might be re-instated, some others might not," another official said.
The chamber was deemed illegal by the European Court of Justice, which said its functioning may "cause serious and irreversible damage to the EU legal order". The ECJ then ordered the temporary suspension of the body and the reversal of most of the decisions adopted so far.
The European Court of Human Rights also ordered interim measures in the case of several Polish judges who, after applying EU case-law, were faced with criminal charges of "abuse of power."
'We are not at the end of the road'
Since Poland is allowed to make two payment requests per year, the agreement means Warsaw is likely to receive the first two tranches of EU recovery funds – and perhaps even the first three – while judges remain under the effects of the disciplined regime.
The first tranche is expected to be worth slightly over €4 billion, combining grants and low-interest loans, and will be disbursed before the end of the year.
The next payment, scheduled for the first quarter of 2023, will be similar in size. A third disbursement could take place in the second half of 2023.
The Commission has negotiated a third milestone to ensure the judicial review of affected judges has wrapped up according to EU standards, but the provision won't be triggered until the very last quarter of 2023, giving Warsaw ample time to remedy the chamber's rulings while cash keeps flowing in.
"A first payment will only be possible when the new law is in force and ticks all the boxes under this contract," European Commission President Ursula von der Leyen said in a tip to Warsaw.
"In addition, Poland must demonstrate by the end of 2023 that all unlawfully dismissed judges should by then have been reinstated. This is progress, but we are not at the end of the road on the rule of law in Poland."
Standing next to her, Polish Prime Minister Mateusz Morawiecki struck a defiant tone and vowed he would "certainly not allow anarchy to take over our judicial system."
"I have my own opinion about the judiciary before 2025 and the judges appointed by communist authorities," he said. "Madame President is very well aware of my opinion in this respect."
'The wrongdoings have not been amended'
As part of the Polish plan, Brussels has included a non-reversal clause to guarantee the government does not overturn the agreed-upon reforms. If the agreement is breached, payments will be halted.
But this is not enough for Juan Fernando López Aguilar, a Spanish MEP who chairs the European Parliament's committee on civic liberties and justice and has been a frequent critic of the Polish ruling party
"Poland should not be given access to EU funds until Poland shows willingness to comply fully with the rulings of the European Court of Justice," López Aguilar told Euronews.
The MEP believes Ursula von der Leyen has betrayed her own words. The Commission president had in the past unveiled three conditions to unlock the Polish plan, including the re-institution of dismissed judges.
"Judges were dismissed because they applied EU law. That's unacceptable," López Aguilar said. "Those wrongdoings have not been amended by the Polish government. There are no sufficient guarantees."
From 2022 to 2026, Poland is set to receive €35.4 billion in grants and loans to execute 49 reforms and 52 investment projects, 42% of which will be devoted to the green transition.
On top of that, Poland is entitled to an extra €25 billion in loans.
The deal to unlock the recovery fund does not address the 2021 ruling by the Polish Constitutional Court that directly challenged the primacy of EU law and raised fears of a legal "Polexit."
EU officials insist the commitments made with Warsaw are sufficiently strong to protect the EU's financial interests and that disputes centred on the rule of law should be addressed "through infringement procedures, not the recovery fund." They argue the original Polish plan, submitted in May 2021, did not feature any commitment in regards to judicial reforms.
Brussels has launched several legal cases against Poland in recent years in a bid to put a break on the disciplinary regime. These cases have reached the ECJ, with one resulting in a €1-million-per-day fine on Warsaw for continued legal disobedience.
"If Poland complies with the [recovery plan's] milestones fully and faithfully, sooner rather than later the Commission will deliberate on the infringement procedures," to bring them to a close, an EU official said.
"But until then, the cases are still there."
After the Polish green light, only two member states remain without an approved recovery plan: Hungary, whose programme is on standby over rule of law concerns, and the Netherlands, who is yet to submit its blueprint.