Poland's legal fixes to collect EU funds come under fire

The legislation was proposed by the ruling Law and Justice (PiS) party, and is now moving to the Senate, where the opposition has a slim majority.

But it is far from a done deal.

The opposition, whose MPs mostly abstained last Friday, said the legislation does not solve the core problem of the politicisation of the judiciary.

And even president Andrzej Duda, a PiS-ally, also expressed doubts over the legislation, for scrapping sanctions on judges who question the independence of other judges.

On Sunday (15 January), 13 civic society organisations wrote to the Polish Senate requesting an urgent opinion from the Council of Europe's Venice Commission on the legislation, argueing the bill is in breach of the constitutional principle of the separation of powers.

One of the ways the legislation tries to meet the EU commission's conditions for unlocking the Covid-19 recovery funds is by making the Supreme Administrative Court be responsible for disciplinary cases instead of the Supreme Court.

The previous disciplinary chamber for judges, created by the PiS government, was ruled to be against EU law by the European Court of Justice (ECJ), and ordered to be suspended in 2021.

The Justice Defence Committee (KOS), the initiative of the 13 NGOs, points out that a third of the judicial posts in the Supreme Administrative Court are held by people appointed on the motion of the National Council of the Judiciary (NCJ), which has been seen as a politicised body.

The spokesman for the Polish Supreme Court also said that the the draft legislation is "unconstitutional on many levels".

Other legal experts similarly argue that the recent draft legislation is not going far enough.

More than a crisis, a breakdown

Laurent Pech, a law professor at the University College Dublin, wrote recently that "Poland must no longer be considered as facing a rule of law crisis but rather a rule of law breakdown".

He added that the new draft legislation "merely amounts to adding more lipstick on the proverbial pig", while plainly disregarding the commission's conditions and recommendations.

Unlocking the €35.4bn in grants and loans allocated for Poland as part of the EU's Covid-19 fund is key for the PiS government to boost its chances ahead of the upcoming elections in the autumn.

"We are looking to the east [Russia], we're looking to the west [Brussels], and we want to end the dispute in the west because the real enemy, the real opponent is in the east and I believe all Poles realise this perfectly well," prime minister Mateusz Morawiecki said, cited by the Polish news agency, PAP.

However, the legislation was not supported by PiS's coalition party, the eurosceptic, hardline United Poland (Solidarna Polska).

Justice minister Zbigniew Ziobro, the head of the United Poland, said the law was detrimental to Poland's interests as it meant giving into blackmail from Brussels.

"We will take all the necessary steps for the legislation not to come into force," he said.

Wait and see?

The EU executive has approved Poland's recovery plan but has not disbursed the funds under the programme until Warsaw delivers on alleviating rule of law concerns.

The commission has said last week that the draft law is "an important step" for Poland to reach the commitments it has made under its recovery plan.

"We will continue to closely follow the next steps of the ongoing adoption process and will then analyse the law as finally adopted," Christian Wigand, commission spokesman said at the time.

He added that the commission is "continuing our talks with the Polish authorities in order to make sure that the Polish legislation is fully compliment with European laws" and Poland's commitments.

"It will be important that the final law as adopted raises the standards on judicial protection and judicial independence," Wigand added.

The ruling PiS, which has been in power since 2015, had been repeatedly under scrutiny for overhauling the country's judicial system, including adding a disciplinary chamber to the Supreme Court, which was able to dismiss judges and prosecutors.

In 2021, the EU's top court ruled that Poland violated EU law with this disciplinary regime, and ordered Poland to suspend the chamber.

In 2022, the disciplinary chamber was dissolved, and instead a so-called "chamber of professional accountability" was created.