European judges take Brussels to court for approving Poland’s recovery plan | International

The Polish recovery plan has finally ended up in court. The four main associations of community judges have appealed their approval by the European Commission, a step that greatly divided the Executive chaired by Ursula von der Leyen, and also the subsequent ratification of the Council of the European Union. The plaintiffs denounce that the judicial reform demanded by Brussels to give the green light to the Polish plan, with which the Community Executive seeks to avoid interference by the ultra-conservative Government of Warsaw in justice, is insufficient and “falls short […] to guarantee the independence of judges in that country.” This is how it appears in the statement prepared by these associations, to which EL PAÍS has had access. With the complaints, filed this Sunday, the European magistrates challenge the EU’s decision and add a great legal doubt about future decisions made on the Polish recovery plan.

From now on it begins, a process that will take a long time to illuminate a final failure. In the meantime, Poland has to implement the reforms – primarily the justice reform – to which it has committed itself. Brussels, for its part, must disburse in different tranches 35,400 million of that country’s recovery plan as the agreed milestones are reached. However, the uncertainty about the legal and administrative validity of all these steps is subject to the decision of the Luxembourg magistrates, who, according to the plaintiffs’ arguments, have seen how the criteria used to approve the Polish fund do not respect their jurisprudence on the lack of guarantees regarding the independence of the judiciary in this country.

On June 1, the College of Commissioners experienced a tense meeting. That day, the recovery plan for Poland was approved, which provides for the delivery to this country of 22,526 million in subsidies and some 12,000 million in credits from the Recovery and Resilience Fund. 17 days later the Member States, through the Council of the EU, ratified it. These decisions were delayed by Warsaw’s refusal to make reforms that would give judges back the independence that the ultra Government of Law and Justice (PiS) has been undermining. Finally, and in a context in which Poland has seen its credibility boosted by the belligerence shown against Russia in the war in Ukraine and its role as the main recipient of Ukrainian refugees in the EU, there was an agreement. Even so, not all commissioners were satisfied with the compromises reached: vice-presidents Frans Timmermans and Margrethe Vestager voted against; others, also vice-presidents, were not present at the college, such as Josep Borrell and Vera Jourova, who even wrote a letter to President Von der Leyen in which she reminded her that in this country “the primacy of EU law continues to be undermined by the Constitutional Court”. Nor was Justice Commissioner Didier Reynders present, who wrote another letter expressing “important doubts” about the step that was being taken.

Those who have no doubts are the associations of European judges and magistrates. The four most representative —the European Association of Judges (EAJ-AEJ), which is the regional section of the International Association of Judges, European Magistrates for Democracy and Liberties (MEDEL), Judges for Judges and the European Association of Administrative Judges —, have raised identical demands in an unprecedented move. The NGO The Good Lobby has collaborated in the initiative. The complainants point out that the reforms and milestones agreed in the Polish recovery plan “fall short of guaranteeing the effective protection of the independence of judges and the judiciary and ignore the rulings of the Court of Justice of the European Union on the matter ”.

This jurisprudence, for example, establishes that the disciplinary chamber for judges created by the Polish Government is illegal and that, therefore, “Polish judges affected by illegal disciplinary procedures must be reinstated immediately, without delay or procedure”. Brussels and Warsaw, on the other hand, agreed that the decisions of this chamber would be reviewed in turn by another chamber that would reinstate the sanctioned judges. “This would introduce a procedure of more than a year with an uncertain result,” they underline in the joint statement issued by the four associations. Further goes the analysis of The Good Lobby, which considers this point “incompatible with the ruling of the Court of Justice of July 15, 2021, and would worsen the situation of Polish judges subjected to illegal sanctions and would further undermine judicial independence in Poland and other EU Member States”.

Polish legal challenges

The sanctioning body to which the European judges refer caused one of the biggest clashes in memory between the community institutions and a Member State, Poland in this case, which was also preceded by other frictions between both parties. The matter ended up in the Court of Justice of the European Union (CJEU), which ruled that the disciplinary chamber violated European law and, therefore, should abolish it. Warsaw refused to comply with the ruling and, in October last year, again the CJEU, at the request of the Commission, ended up imposing a fine on Poland of one million a day until it complied with the decision. A few weeks before, the legal challenge of this country had already climbed several steps when its Constitutional Court ruled that national law prevails over community law.

The four associations cover the different sensitivities of the European judiciary: the EAJ-AEJ, for example, includes the Spanish Professional Association of the Judiciary, with a conservative profile; in MEDEL, Judges for Democracy and the Progressive Union of Prosecutors. In three of these continental organizations, Polish associations are registered. One of them is IUSTITIA, the majority association of Polish judges that has affiliated some 3,200 magistrates, a third of the total, according to its own website. This last aspect is important, because it reinforces the legal legitimacy of the claim. Community law does not contemplate the existence of popular prosecution in European courts and only allows this possibility to an affected party.

With the approval of the Polish recovery plan, only the Hungarian one is pending the approval of the countries that are under suspicion for their attacks on the rule of law. In this way, Budapest, which has also proven to be a close ally of Russia despite the invasion of Ukraine, remains isolated from the rest of the member countries. This began to be seen last June, when Warsaw lifted its veto on the tax regulation that contemplates setting a minimum tax rate of 15% in corporate tax, leaving only the Government of Viktor Orbán.

The green light has not yet meant that Poland has started to receive the money. For that, it has to begin to show that it is complying with what was agreed and this has already reopened hostilities between the Commission and the Polish Executive. At the beginning of the month, the real strong man of the PiS, Jaroslaw Kaczynski accused Brussels of not complying with the agreement. According to him, “since the Commission does not fulfill its obligations to Poland, we have no reason to fulfill ours”.

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