Poland – The Polish government announced on Wednesday that an agreement had been brokered with the European Commission on the contentious points of Poland’s justice reforms, invoked by Brussels to block the payment of the 35.4 billion euros corresponding to the Polish part of the European NextGenerationEU recovery plan. Poland and Hungary are the only two EU countries which have not yet received a single cent under a plan financed by joint borrowing that was meant to rebuild the block’s economies after the Covid-related lockdowns. Polish European Affairs Minister Szymon Szynkowski vel Sęk, who is leading negotiations with the European Union on this issue, said that a law would be submitted to the Polish Sejm immediately to bring Polish legislation into line with EU expectations. Because of the opposition of Solidarna Polska, the party of Justice Minister Zbigniew Ziobro, which has 20 seats in the Sejm, the new law will need to gain the support of part of the opposition. The PSL agrarian party has said it could vote in favour, and the left also seems to be open to possibly supporting the draft law, while members of Donald Tusk’s Civic Platform (PO) have said that they are open to discussions, but will set certain conditions.
For the government camp,
“the national recovery plan is a top priority. Work is in progress. There is determination to solve this problem.”
As part of the agreement with the European Commission, Poland is to change once again its disciplinary procedures against judges, by transferring the highest instance in such matters from the Supreme Court to the Higher Administrative Court (NSA). However, some lawyers and members of the opposition see this as further proof of the disrespect of PiS and the Morawiecki government for the constitution and the principles of law, since the NSA’s competences are defined in the Polish constitution and that court is in principle only competent in the area of administrative justice.
Moreover, this does not solve the questioning by EU bodies of the legitimacy of the PiS-reformed National Judicial Council (KRS) and of the Constitutional Court, which was at the centre of a serious conflict at the very beginning of the PiS governments back in 2015–2016. With parliamentary elections scheduled for next year and the post-Covid economic crisis exacerbated by the war in Ukraine, the Polish government is counting on billions from the European recovery plan for its investments in clean energy, and also to free up the funds needed for its defence effort, as the level of defence spending is set to reach 3% of GDP next year. The Morawiecki government, struggling with a yearly inflation rate of over 17%, also hopes that the transfer of NextGenerationEU funds will strengthen the Polish currency and thus have an anti-inflationary effect.
“Even in the communist era, bills were not written in Moscow in such an open way”
The negotiation with the European Commission on the Polish justice reform took place in Brussels, and the day after it was announced a “compromise” had been reached, criticism began to be heard from all sides. On Friday morning, on the strongly anti-PiS Tok FM radio station, journalist Jacek Żakowski ironically pointed out that even in the communist era, bills passed by the Polish parliament were not drafted in Moscow as openly as this one was in Brussels. Not only is this a truly humiliating moment for the Morawiecki government and its parliamentary majority, but after only two days it had become clear that more troubles lay ahead.
President Andrzej Duda said that he had not been consulted and that he reserved the right to veto the bill if some of the doubts raised by it were not clarified.
This includes the issue of the potential ability of judges and parties to a case to question the legitimacy of judges appointed by the president, the appointment of judges being a constitutional prerogative that President Duda intends to uphold.
However, the European affairs minister in charge of the negotiations and Prime Minister Mateusz Morawiecki have said that in order to release funds from the NextGenerationEU recovery plan, this bill must not undergo substantial modifications. The Supreme Court, on the other hand, has issued a devastating opinion on the draft law, which it says would violate the Polish constitution and lead to legal chaos. In the face of criticism, the PiS leadership decided to withdraw the bill from Friday’s agenda in the Sejm and to postpone its consideration until January.