The College of Commissioners of the European Union approved this Friday, after half a year of blockade, the Polish Recovery and Resilience plan, potentially unlocking the delivery in stages of more than 35,000 million euros in transfers and loans to recover its economy from the ravages of the pandemic.

Some members, such as Spain, have already received up to three disbursements after complying with the procedures, reforms and agreed milestones. Others, such as the Netherlands, have not yet presented theirs, as they are still in negotiations after the last elections. But there were two exceptional, controversial and very delicate cases: Hungary and Poland, which having delivered their plans had not yet received the green light from the Commission, due to their problems with the judiciary.

The tension has been constant for years. The Commission considers, or considered, that the different laws approved in both countries, and the decisions of the Executive in Warsaw and Budapest, did not guarantee a free, independent and operative judiciary. And, since this is necessary to guarantee the correct use of community money, it had blocked the process. In fact, the procedures for an open clash are underway, and it is to be expected that at any moment the European Commission will cut Hungary’s structural and cohesion funds, since the so-called Rule of Law Mechanism has already been activated, an instrument of recently created and that allows Brussels to act forcefully when it sees the rule of law in danger.

Poland has more than half a dozen serious lawsuits with the Commission, judgments of the Court of Justice of the EU and a political fight. But even so, the president of the Commission, Ursula von der Leyen, has brought the issue of the Recovery Plan to the College this Wednesday, and has achieved approval despite the opposition of half a dozen members, including two of her vice presidents. The six, together with an important part of the European Parliament and the Polish opposition, believe that the underlying problems have not been resolved and that the promises of Warsaw, which in theory has launched a review to eliminate a chamber of supervision of judges , they are not credible. But they have lost.

The question is much deeper now. Poland is the country with the most problems and the one that has most clearly interfered with the independence of the judiciary, but it is also the country that has mobilized the most in the Ukrainian crisis, opening its doors to millions of refugees, sending humanitarian and military aid, coordinating the passage of weapons through its territory and pushing for the energy disconnection of Moscow. And not only that, but it has separated, for this very issue from Hungary, breaking the axis of Visegrad.

Brussels finds it increasingly difficult to understand itself with Viktor Orban, the great winner of the last European Summit, achieving a tailor-made exemption on the Russian oil embargo, but it has found a way to do it with Warsaw, especially since last summer it began the crisis with Belarus with the arrival of asylum seekers across its border.

The doubts are many, growing and serious. “The approval of this plan is linked to clear commitments from Poland on the independence of the judiciary, which must be fulfilled before any real payment can be made. I look forward to the implementation of these reforms,” ​​the German said on Wednesday.

However, the president of the Committee on Civil Liberties, Justice and the Interior of the European Parliament, the Spanish Juan Fernando López Aguilar, has already requested the appearance of Von der Leyen and the commissioners responsible for European Funds and the Rule of Law so that they can explain , since they believe that the legal inconsistencies would not only be enough to continue without approving the plan, but that they should have been enough to freeze all the funds under the Rule of Law mechanism.

“Giving the ‘ok’ to the Polish Recovery Plan in the light of a presidential bill that solves nothing in terms of judicial independence and recycles the breach of the rules is to give an ‘ok’ to political blackmail, to contempt for the rule of law and an EU based on democratic principles”, denounces Eliza Rutynowska, of the Civil Development Forum. “I am very curious to know what guarantee the Commission will have that once the last euro of the Recovery Plan is paid, Poland will not take the new law on the Supreme Court to its politically compromised Constitutional Court to find that the law it is incompatible with the Constitution,” says Jakub Jaraczewski, a researcher at Democracy Reporting International.

Von der Leyen’s argument is that Poland has made progress, has recognized errors and that, in any case, approving the plan only means granting a first disbursement, the so-called pre-financing. But for all the others, it will have to comply with the milestones and the reforms contemplated in the Plan, which includes more guarantees in judicial matters. And if you don’t, there will be no money. Because the vote of the other countries is necessary in some of the phases. “The Commission has assessed Poland’s plan on the basis of the criteria set out in the Regulation. Poland’s plan includes milestones related to important aspects of the independence of the judiciary, which are of particular importance for improving the investment climate and establishing the conditions for an effective implementation of the recovery and resilience plan. Poland needs to demonstrate that these milestones are met before any disbursement can be made,” said the statement published on Wednesday.

The timing was the one sought by both parties, just before the visit of President Von der Leyen to the country. Last week the Polish lower house approved a legislative change proposed by President Andrzej Duda. What the Government assures, and the Commission seems to accept, is that the legislative proposals, which must pass the Senate process, would dismantle the controversial disciplinary chamber of judges, would reform the disciplinary regime and would allow the reinstatement of the magistrates dismissed as a result of judicial proceedings. disciplinary.

But critics and the opposition denounce that the law is only a cosmetic change, that the judges will continue to be chosen by a general council that is not independent and that Brussels has criticized in the past, for which it means closing their eyes to what will follow. being open interference from the Executive. “The plan includes a comprehensive reform of the disciplinary regime applicable to Polish judges that is expected to strengthen important aspects of the independence of the judiciary. Such reform will have to live up to the following commitments: all disciplinary cases against judges will be resolved by a court, different from the current Disciplinary Chamber, that meets the requirements of EU law in line with the case law of the Court of Justice and is therefore independent, impartial and established by law”, says this Wednesday the Commission in its formalization of the plan.

“Judges cannot be subject to disciplinary responsibility for submitting a request for a preliminary decision to the Court of Justice, for the content of their judicial decisions, or for verifying whether another court is independent, impartial and established by law; Rights proceedings of the parties in the disciplinary proceedings; All judges affected by the previous sentences of the Disciplinary Chamber shall have the right to have these sentences reviewed without delay by a court that meets the requirements of the EU and is therefore independent , impartial and established by law”, the Commission abounds.

“The Commission has approved the recovery plan for Poland because it wants to send a message of political unity in the face of Putin’s aggression. This is understandable, but questionable. Apart from the war in Ukraine, nothing has changed in Poland since he requested the money” , explains Camino Mortera, from the Center for European Reform in Brussels. “The way the recovery fund has been designed is brilliant. It is conditional on meeting milestones and targets. Recovery money remains, in my opinion, a much more effective lobbying system on rule of law issues than ‘lex specialis’ as the conditionality mechanism. The Commission should have used that influence more intelligently with Poland. It has not obtained any concession from the Polish Government and has lost an important bargaining chip in the short-medium term”, adds the researcher.

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