Green light or white flag? The European Commission’s endorsement of the Polish recovery plan and its implications for the rule of law crisis

Last week, the European Commission signalled that it would give green light to Poland’s recovery and resilience plan under the Next Generation EU program. On the one hand, this may have significant financial implications for Poland. The Commission’s approval is likely to lead to the unlocking of billions in support of the country’s economy revving up after turmoil caused by Covid-19. On the other hand, the Commission’s go-ahead equally marks an important development in relation to the rule of law crisis in Poland. It suggests that the abandoning of some of the most contested elements of judicial reforms is good enough for the Commission. In unsettling times, Berlaymont seems eager to lay its quarrel with Poland to rest.

At first sight, this may be extolled as a long-overdue amicable solution between Warsaw and Brussels. However, this would be too good to be true. In fact, as Jaraczewski argues, the Polish lawmakers’ conciliation is likely to be nothing but a feint. This blog post agrees with this impression. It suggests that the Polish ruling parties’ approach ties in neatly with a strategy of legalistic law-making that has marked the interaction of EU institutions and national lawmakers for years. The latter may often take pride in finding clever legal workarounds that accommodate requirements of Union law, without abandoning an illiberal policy altogether.

The Commission’s approval of the Polish recovery plan appears to underestimate this creativity of illiberal lawmakers. It is narrowly drafted to focus on the disciplinary regime, thereby disregarding the more systemic implications of the judicial overhaul in Poland and the possibility of rolling back reforms once the money has been transferred. This is cause for fierce criticism politically, and rightly so. Nonetheless, the Commission’s green light should not be viewed as an outright surrender. Rather, legally speaking, it merely postpones conflicts between Brussels and Warsaw. The Commission still holds the reins: both in the context of the recovery facility, where it will have to assess whether reforms in Poland satisfy certain ‘milestones’, and regarding other elements of the judicial system in Poland, particularly the Constitutional Tribunal. For that reason, this blog post advocates for close attention to what will happen next, both at national and supranational level. The Commission’s approval of the Polish recovery plan may neither be likened to flying a white flag of surrender, nor is it capable of bringing the Polish judicial system back in line with the requirements of Union law in and of itself.

This argument will proceed in three steps. First, it will briefly sketch the legal design of the recovery facility and the conditionality mechanisms that it entails after the Commission’s approval of Member States’ recovery plan. Second, it will elaborate on the way in which illiberal lawmakers in Poland have repeatedly readjusted their judicial reform in the light of requirements of Union law, without abandoning illiberal reforms altogether. This method of perpetual readjustment will be illustrated with a view to the prospective abolition of the Disciplinary Chamber of the Polish Supreme Court. Third, the blog post will rally for close attention to what will happen next. While the Commission might feel the urge to lay the dispute with Warsaw to rest for political reasons, legally speaking, this need not be a foregone conclusion. Rather, the general approval of Poland’s recovery plan still allows the Commission to challenge rule of law impairments – a task that it should pursue with unwavering rigour.

Milestones and stumbling blocks

In legal terms, the Commission’s green light takes the form of a Proposal to the Council to adopt an Implementing Decision. This follows from the legal design of the Recovery and Resilience Facility Regulation, which authorises the Commission to assess the plans submitted by the Member States. Where it approves of a national recovery plan, the Commission is required to draw up a list of ‘milestones’ to be achieved before any actual payments is made. Unsurprisingly in the case of Poland, these milestones centre prominently on the independence and impartiality of its national courts. In this regard, the Proposal sets out in relatively detailed and positive terms which steps would need to be taken to unlock payments. First, disciplinary actions should be handled by an independent court, based on objective criteria in law and not be misused to penalise the filing a preliminary reference with the Court of Justice. Second, judges forced out of office by the Disciplinary Chamber should be reinstated.

The Commission is quick to add that, for the fulfilment of these milestones, and the transaction of payment for that matter, it is not sufficient to merely propose adjustments in national law, but that reforms must become applicable law. Technically speaking, the Commission’s green light to Poland’s recovery plan does therefore not unlock funds for Poland per se. Rather, it effectively replaces one conditionality regime with another. Whereas the approval of the recovery facility may have incentivised reform proposals in the Polish judicial system, the Commission’s approval of Poland’s recovery plan insists that these reforms must become applicable law. Only then, transactions can be arranged for.

The Disciplinary Chamber – a pars pro toto

It remains to be seen whether Polish lawmakers will conform with these milestones and whether the Commission is willing to go the extra mile, putting the conditionality that this approach implies to the test. On a more general level, however, it should be noted that the Commission’s milestones-approach is narrowly designed to merely remedy those elements of the judicial system in Poland that are most tangibly in conflict with Union law. Above all, this applies to the Disciplinary Chamber of the Polish Supreme Court, thus reflecting a trend in public discussions that reduces the rule of law crisis in Poland to the existence or abolition of this infamous body. The Disciplinary Chamber – established ex nihilo and used, in practice, to exert pressure on disobedient judges – thus serves as the canary in the coalmine. If it persists, the wrangle between Brussels and Warsaw would be unlikely to subside.

As Sadurski has forcefully argued time and time again, however, such a focus on the Disciplinary Chamber would be an undue simplification of the problem at hand. While the Disciplinary Chamber (and by extension, the disciplinary regime more broadly) may form the most tangible manifestation of the so-called reforms in Poland, it is by no means the only one. Against this backdrop, it is not unreasonable to suspect that the Polish government’s strategy pursues a pars pro toto solution, whereby the Disciplinary Chamber is sacrificed to keep other illiberal elements of the judicial system in Poland intact. Above all, this applies to the composition and jurisprudence of the Constitutional Tribunal and the National Council of the Judiciary, which are remarkable blind spots in the Commission’s milestone conditionality.

This qualifies the Commission’s milestones approach in two important respects. First, it illustrates that this approach may underestimate the risk of further backsliding once the money has been conferred. Whenever this is deemed appropriate, the ruling parties may commission the hijacked Constitutional Tribunal to render a judgment of courtesy, declaring the unconstitutionality of any supranational interference with the domestic judicial system. Second, there are some indications that the proposal currently discussed in the Sejm already straddles the supranationally permissible. Particularly, the proposed legal framework would allow the President of the Republic to approve those candidates that are drawn, at random, to sit at the new ‘Professional Liability Chamber’. A similar legal arrangement has previously been rejected by the Court of Justice in A.K. and others, where the Court took issue with the Polish President’s unfettered discretionary power to approve or reject candidates for the Supreme Court. Should the Commission accept the Polish reforms as they are currently discussed, this would run the risk of non-judges being ‘recycled’, as Jaraczewski argues, to sit in the new Professional Liability Chamber as if nothing had happened.

On an intermediate level of abstraction, this suggests that the Commission should not underestimate the creativity and persistence with which national lawmakers may attempt to re-design national legal systems. Polish lawmakers may take pride in finding legal workarounds that accommodate, at least superficially, the requirements of supranational law, without abandoning an illiberal policy altogether. Rather, it should be borne in mind that national lawmakers have a variety of means at their disposal to undermine the rule of law. As such, the Commission’s milestone approach will certainly not serve as a fix all-solution. To draw a balanced conclusion regarding the Commission’s actions in this regard, however, it should equally be noted that the conditionality regime in the recovery facility forms only one element (albeit a weighty one) of the Commission’s efforts safeguarding the rule of law.

A comprehensive strategy in the Commission? 

The Commission’s endorsement of the Polish recovery plan should not be read as a carte blanche. While the Commission may indeed have swallowed the sop of the governing Polish parties that reforms are underway to conform with the requirements imposed by Union law, the Commission is not left empty-handed in its fight to ensure the rule of law in the EU. Just before Christmas last year, for instance, it initiated an infringement action against Poland as a response to the now infamous jurisprudence of the Constitutional Tribunal, declaring some Treaty provisions unconstitutional. This makes amends for some of the blind spots in the Commission’s milestone approach in the context of the recovery facility. The infringement case stipulates, among other things, that the Polish Constitutional Tribunal fails to meet the requirements of a tribunal previously established by law, as the Strasburg court has already corroborated. To be sure, infringement procedures may not have the same leverage as the conditionality inherent in the recovery facility. However, its effects are equally no trifle. While Mayer suggests that a daily one-million-euro fine may not make itself sufficiently felt in an economically flourishing and sizeable Member State such as Poland, pressure has been building up, nonetheless. Reportedly, this has detrimentally affected the relationship of PiS members of government with Zbigniew Ziobro, Minister of Justice and diehard rule of law perp.

Besides, the rule of law conditionality mechanism may be a forceful instrument to bring rule of law wrongdoers to task. In contrast to events in Hungary, however, this mechanism may be inapt to respond to the judicial reforms in Poland. As a corollary of supranational constitutional caveats, a strong link between a rule of law violation and the financial management of EU budget must be established to activate the mechanism. Unlike the scenario in Hungary with respect to which the Commission has recently activated the conditionality mechanism, the potential of embezzlement may not be the primary concern regarding the Polish judicial reforms. Accordingly, for the moment, it is unclear in how far this may be an appropriate instrument to remedy more systemic rule of law deficits in a Member State such as Poland.

In summary, it may not be entirely accurate to conclude that the Commission, by endorsing Poland’s recovery plan, is throwing in the towel. While there may be political reasons for the Commission to cool tempers with Poland, in legal terms, the Commission’s green light in the context of the recovery facility does not prevent Berlaymont from holding Poland accountable for adjustments of the judicial system. Against this backdrop, the Commission should follow closely any amendments adopted at national level and keep up the pressure if need be. Unlike the current milestone approach, the Commission should moreover acknowledge the systemic nature of rule of law impairments. Instead of focusing on some of the most tangible embodiments thereof, such as the Disciplinary Chamber, a comprehensive and unwavering counterstrategy is needed to safeguard the rule of law in the EU.