Poland warned no EU recovery funds without judicial reform

European Commission updates

Poland will need to prove it is no longer defying the European court over judicial independence if it is to start receiving EU recovery money, the justice commissioner has warned, as he called for fines that put genuine pressure on Warsaw to change course. 

Didier Reynders said in an interview it was logical that the EU would not wish to disburse any of the €36bn Poland has applied for under the bloc’s Covid-19 recovery package, which is awaiting European Commission approval, without a “real change” to its disciplinary regime for judges. 

After the commission asked the European Court of Justice to fine Poland for ignoring its decisions, Reynders added the penalties should be as high as €1m a day, although he stressed the decision was up to the court. 

The commission has been locked in a long-running dispute with Poland’s conservative nationalist ruling party over reforms that give it power over the judiciary, in particular a controversial disciplinary chamber to punish judges. The struggle has raised broader fears over Poland’s respect for EU law.

That dispute has intensified in recent months as Poland seeks to convince the commission to approve its massive pitch for EU recovery funding even as it defies two ECJ rulings. 

On Tuesday, the commission said it was asking the ECJ to fine Poland following the country’s failure to comply with so-called interim measures imposed in July over Warsaw’s judicial disciplinary regime.

The commission added that it would begin a separate process over Warsaw’s failure to comply with a second ECJ ruling, declaring the disciplinary chamber incompatible with EU law because it contained inadequate guarantees of judicial impartiality and independence. 

European justice commissioner Didier Reynders: “We are at the end of the so-called dialogue on this with Poland” © Olivier Hoslet/EPA-EFE/Shutterstock

Reynders said Poland had now come to the “end of the road” in its dialogue with the commission over the legality of its regime given the rules were now subject to clear ECJ rulings. 

“I must say that we are at the end of the so-called dialogue on this with Poland. We have tried to engage in a real dialogue with some letters and some documents, then before the Court,” he said. “We have received positive reactions from the Court of Justice but there is no intention from Poland to be in full compliance with ECJ rulings, and so the next step is financial.”

Senior Polish ruling party politicians accused the commission of “war” against Poland in the wake of the commission’s announcements on Tuesday. But the government appeared to take a more conciliatory tone, amid fears in both Warsaw and Brussels that further escalation risks inflaming eurosceptic opinions in the bloc’s fifth-largest member state.

Michal Dworczyk, prime minister Mateusz Morawiecki’s chief of staff, said on Wednesday that “misunderstandings” between Warsaw and Brussels may have contributed to the threat levied by the commission.

“Everything indicates that this [disciplinary] chamber will be liquidated as part of the legislative work,” he told local radio. “Perhaps some issues have been misunderstood by the commission, so we will be clarifying that issue in the proceedings before the ECJ.”

Warsaw believes that it is being threatened by Ursula von der Leyen, commission president, because she fears a backlash from the European Parliament for not being firm enough on rule of law issues, a senior Polish official said. Increased pressure from Brussels is making a domestic political compromise over the disciplinary chamber harder to find, the person added.

“[The commission] has to find a way to address the question of [legal] supremacy,” the senior official said. “They are helping Eurosceptics . . . Enormous damage is already done.”

Von der Leyen is due to address MEPs in Strasbourg next week in her annual state of the union address. The recovery plans of both Poland and Hungary are currently blocked because of disputes with Brussels over rule of law matters.

The dispute over Poland’s legal regime is seen as particularly dangerous in Brussels because it goes to fundamental questions over member states’ willingness to respect the supremacy of EU law and its Luxembourg court.

Last week Paolo Gentiloni, the EU’s economy commissioner, said the disbursement of pandemic recovery funds would be affected by Warsaw’s response to the commission’s insistence on the primacy of EU law. 

Reynders pointed to a more focused requirement, namely that its agreed recovery plan contain clear conditions regarding reforms of the disciplinary regime and compliance with the European court on the matter. “You need to show you are going in a good direction,” he said. 

“It’s quite difficult [for the commission] to approve a financial plan without a real condition concerning the disciplinary regime of the judges, because we are at the end of the process and we [asked] for financial sanctions before the court,” said Reynders. 

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