27th Feb 2024

Poland awaits EU-funds approval as Reynders visits Warsaw

  • The EU Commission blocked payments of post-Covid recovery funds, and delayed payment of cohesion funds, because Poland’s judicial system was no longer seen as independent (Photo: Daniel Kulinski)
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Restoring the rule of law in Poland after Donald Tusk's Civic Platform-led democratic coalition's electoral victory last October marks a major challenge for the new Polish government — as the EU justice commissioner Didier Reynders will see on his visit to Warsaw on Friday (19 January).

The visit comes after a turbulent week when tens of thousands of supporters of the previous Catholic-nationalist Law & Justice (PiS) government demonstrated against Tusk's government, claiming it was violating human rights, and Polish president Andrzej Duda argued the country now found itself under "rule-of-law terrorism".

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  • EU justice commissioner Didier Reynders is expected to meet new Polish justice minister Adam Bodnar (r) in Warsaw on Friday (Photo: European Commission)

Reynders will be meeting Adam Bodnar, Poland's new justice minister and former ombudsman, to examine his plans to reform the judicial system after the former populist government put in place laws which limited the independence of judges and prosecutors. This gave Zbigniew Ziobro, Bodnar's predecessor, major sway over the justice system.

The system put in place by PiS allowed them to hound political opponents and gave officials and allies of government impunity when they indulged in fraudulent schemes or when PiS itself channelled budget and state-owned corporation funds to pay off loyalists and finance election campaigns.

Those changes were contested in the European Court of Justice (ECJ), which in a succession of judgements found that newly-established legal institutions designed to discipline judges were not legitimate and their verdicts were invalid. The then Polish government refused to recognise these decisions and failed to pay fines imposed by the ECJ for non-compliance with their verdicts.

The EU Commission blocked payments to Poland of post-covid-recovery funds (worth €25.3bn in grants and €34.5bn in low-cost loans) and delayed payment of cohesion funds because Poland's judicial system was no longer seen as independent.

The new Polish government led by Tusk, a former EU Council president, is desperate to unlock these funds and is determined to restore the rule of law which is a condition of disbursement. Reynders is possibly also keen to see the funds flowing to Poland — after they were delayed by the stand-off with the former government.

Finding a way forward

However, as Reynders will hear from Bodnar, the PiS-designed changes in the judicial system can only be reversed through new laws which the new government can pass through parliament but which need the approval of president Duda.

The president, though, is a PiS-loyalist who has shown in the past weeks that he is in no mood to work together with Tusk and his allies.

"We find ourselves in a situation where the legal system is operating under 'force majeure'," says professor Robert Grzeszczak, an expert in EU law at Warsaw University, referring to the stance taken by president Duda.

"This means that the government can't simply rely on the straightforward passage of new laws to change the system but will have to employ wiles and bypasses to shore up the independence of the judiciary until president Duda's term ends in May 2025".

Meanwhile, it seems that the commission is looking to Bodnar to present a set of draft laws aiming to restore the independence of the judiciary — but whose chances of success are scant given their probable rejection by the president.

Bodnar has made a start by presenting a draft law on the National Council of the Judiciary (KRS) which would be staffed by bona-fide judges who would then appoint new judges. Under the PiS regime, the KRS was dominated by political appointees who were responsible for selecting new judges.

This was one of the bodies which was queried by the ECJ as not being independent. But the upshot is that the PiS-controlled KRS appointed over 2,000 'neo-judges', as they are dubbed by critics of PiS.

Goodwill theory vs practice

Other draft laws will be tabled by Bodnar in the hope that the president can be persuaded to approve them, but the question facing Reynders is whether the new government's efforts will be enough for the commission to recognise Poland's goodwill and unblock the Covid-19 recovery funds and other cohesion fund payments, trusting in the Polish government's good intentions.

Grzeszcak notes that Hungary's Victor Orbán, who initially faced a refusal by the commission to make EU funds available because of rule-of-law concerns, saw Brussels unlock €10bn in December as talks continued to persuade the Hungarian ruler to drop his veto on an aid package to Ukraine.

Those concessions to the Hungarians were criticised by the largest political groups in the European parliament, including Tusk's European People's Party — with a resolution on this issue this week.

But were Reynders and the EU commission to give the Tusk government the benefit of the doubt and unlock funds for Poland, the risk of similar criticism would be small.

Meanwhile, Bodnar himself faces personal criticism from PiS supporters on a daily basis. They accuse him of colluding in Tusk's "tyrannical" policies.

Groups of PiS supporters mount pickets daily outside the two prisons where Mariusz Kamiński and Marcin Wąsik, the PiS interior minister and his deputy, are serving a two-year sentence for forging documents in 2007 to implicate a government coalition colleague in a criminal case. PiS is arguing they are political prisoners and is demanding their immediate release.

Bodnar is already looking for loopholes and fixes to establish his control of a justice ministry still riddled with PiS appointees.

For example, he has terminated the employment of Dariusz Barski, the PiS-appointed chief prosecutor.

When other senior prosecutors refused to accept the legality of that sacking, arguing that the dismissal should be approved by Duda, Bodnar ordered his critics to use up their outstanding holidays which they had not taken up — as they were legally bound to do.

Author bio

Krzysztof Bobinski is a board member of the Society of Journalists, in Warsaw, an independent NGO. He was the Financial Times correspondent in Warsaw from 1976 to 2000. He worked at the Polish Institute of Foreign Affairs (PISM) and was co-chair of the Eastern Partnership Civil Society Forum.


Tusk's difficult in-tray on Poland's judicial independence

What is obvious is that PiS put in place a set of interlocking safeguards for itself which, even after their political defeat in Poland, will render it very difficult for the new government to restore the rule of law.

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