Poland’s first payment of EU recovery funds risks being delayed after the European Commission detected one key element missing from the country’s proposed judicial reforms.
The reforms centre on the disciplinary chamber of the Supreme Court, a controversial body that is largely seen as a tool of government encroachment upon the judiciary and that the European Court of Justice (ECJ) has deemed incompatible with EU law.
The chamber has the power to punish judges for the content of their rulings, for asking questions to the European Court of Justice and for verifying that other courts are independent and impartial.
Potential penalties include fines, salary cuts, suspension and waiver of immunity.
Warsaw is expected to reform the chamber and put in place a new body in line with EU standards.
“We’re still assessing the new law on the disciplinary regime, so no final conclusion is possible today,” said Ursula von der Leyen, president of the European Commission, on Friday afternoon.
“But I can already say that this new law is not ensuring that judges are able to question the status of another judge without risking being subject to disciplinary offence.”
“That is a requirement that is needed, so this issue still has to be addressed,” she added.
“We’re not done with the assessment of the whole law but we see that this part is already missing.”
Over the past years, Brussels repeatedly asked Poland to dismantle the chamber and comply with ECJ rulings. The standoff led to the blockage of the country’s €35-billion recovery plan.
Warsaw eventually relented and agreed to reform the disciplinary regime as part of a deal to unlock the funds.
Polish President Andrzej Duda proposed a replacement to supervise magistrates, the Chamber of Professional Responsibility, that was endorsed last month by the Polish parliament.
Legal experts have warned the new body would still grant the executive too much power over the judiciary.
Warsaw was initially given until the end of the second quarter — that is, end of June — to reform the disciplinary regime and install a substitute aligned with EU law.
But, as von der Leyen pointedly noted, the Commission has already noticed the new chamber would still allow judges to be punished if they carry checks on their peers — a red line for the executive.
A similar warning was issued yesterday by Věra Jourová, the Commission’s vice-president in charge of values and transparency.
Although the first deadline has now passed, Poland still has time to make the necessary changes to comply with the Commission’s demands. But this additional tweak will likely delay the first disbursement of EU recovery funds, expected to be worth slightly over €4 billion.
Poland can’t make a formal request for payment until the judicial reforms have been fully implemented.
However, the deal between Brussels and Warsaw has been criticised for containing loopholes and insufficient guarantees to restore the rule of law.
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