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Ursula von der Leyen has laid out a roadmap for de-escalating a rule-of-law crisis with Warsaw, but following her directions won’t be so easy for the Polish government.
The European Commission president on Thursday publicly presented Poland a compromise that would unlock up to €36 billion in recovery funding for Polish citizens, outlining at a press conference three demands for changes to the country’s judicial system that would ease a deal between Warsaw and Brussels.
Nevertheless, the Berlaymont’s plan may be a no-go for Poland’s ruling Law and Justice (PiS) party, which has staked its political standing at home for years on the argument that the country’s justice system has to be revamped. It’s a stance that has driven Warsaw into a tense standoff with Brussels over accusations that PiS is systematically undermining the Polish judges’ independence. And the changes von der Leyen is proposing go to the core of the PiS judiciary campaign, said one person familiar with the talks.
The conflict has reached a boiling point in recent weeks.
Poland was ordered on Wednesday to pay a €1 million penalty each passing day for refusing to suspend a disciplinary body for judges. And earlier this month, a ruling from the Polish Constitutional Tribunal — whose own legitimacy has been questioned — controversially declared some elements of the EU’s treaties incompatible with Poland’s constitution, possibly challenging the EU’s legal foundation.
Now, Poland’s billions in grants and low-interest loans under the EU’s pandemic relief fund are frozen. And there’s no clear path forward.
In an effort to offer a way out of the crisis, von der Leyen said on Thursday that as a precondition to receiving recovery funds, Poland would have to dismantle its contested disciplinary chamber for judges — which was ruled illegal by the EU’s top court in July — as well as “end or reform” a disciplinary regime for judges and begin a process for reinstating those who have been sacked.
Warsaw would have to commit to these reforms in order to unlock the first tranche of recovery funding, equivalent to 13 percent of the total, and prove that it has achieved them by mid-2022 in order to access any further payments under the bloc’s Recovery and Resilience Facility, according to two people familiar with the talks.
The first of von der Leyen’s demands appears to be acceptable for Warsaw — Polish Prime Minister Mateusz Morawiecki has signaled many times that his government will dismantle the disciplinary chamber, and on Thursday he confirmed that a new law on the judicial system would be ready “in the upcoming months.”
But ending or reforming the disciplinary regime for judges could prove much more difficult politically for the ruling party.
The key negotiations are now over on what grounds Polish judges can be held accountable in disciplinary proceedings, according to the two officials. For example, Brussels is asking Warsaw to allow Polish judges to check the legality of other judges, they added — something PiS doesn’t want to happen because of doubts over whether some of the judges were legally appointed after the ruling party made sweeping changes to its judicial system.
A senior Polish official said, “dismantling the disciplinary chamber [is] probably OK, but allowing judges to question other judges’ status is beyond a very thick red line.”
Von der Leyen has indicated that the milestone Poland would have to fulfill in order to access recovery funding is being designed to mirror demands from the EU’s top court.
“This happens to be also of course embedded in the overall ruling of the European Court of Justice — this is a long-standing process — therefore there is consistency in what we are asking for,” she said Thursday.
Apart from the request to dismantle the disciplinary chamber, the EU’s top court said in July that the content of Polish judges’ verdicts can’t be classified as a disciplinary offense and that judges have the right to refer cases to the EU high court. The EU judges also ruled that Poland’s disciplinary proceedings against judges have to be examined within a reasonable time, giving them the right to defense.
Speaking of the Commission’s demands, von der Leyen said, “I think it is doable, I hope that we’ll reach an agreement,” before adding: “But the reform part is conditio sine qua non.”
At home, any backtracking on judicial reforms would intensify political tensions within the government, since the legal changes formally belong to the portfolio of Justice Minister Zbigniew Ziobro, the leader of PiS’ far-right junior coalition partner. Ziobro doesn’t think Warsaw should make any concessions in its conflict with Brussels.
Speaking on Thursday, the minister said, “as far as I’m concerned, in Mrs. von der Leyen’s homeland, in Germany, there’s a disciplinary system in place.”
He also said that Poland should not comply with the EU’s ruling to dismantle the chamber, calling the demand “lawlessness.”
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