Despite unprecedented open dissent from senior members of her European Commission, Ursula von der Leyen is standing by her plan to unlock EU recovery funding for Poland.
The Commission president defended her plan in Warsaw on Thursday, even as stinging criticism reverberated around Brussels from top commissioners concerned that she is letting Poland off the hook when it comes to undermining the rule of law.
Five commissioners — including three Commission vice presidents — raised concerns about von der Leyen’s plan when it was adopted on Wednesday and several submitted written statements to underscore their discontent.
Under the plan, Poland could receive more than €35 billion in grants and loans from the EU’s coronavirus recovery fund if the country meets “milestones,” including a number of judicial reforms.
The European Commission has spent years battling with Poland’s populist government over the rule of law, even triggering the so-called Article 7 censure procedure after finding Warsaw was putting the bloc’s core values at risk. But the war in Ukraine has cast Poland in a different light, as Warsaw has taken in millions of refugees and provided substantial military aid to Kyiv.
The war — and the economic pressures it has created — have given both sides a strong incentive to find ways to get recovery cash flowing to Warsaw.
But rebel commissioners and other critics say the “milestones” fall way short of what is required to ensure Warsaw rolls back measures that have undermined judicial independence and violated both Polish and EU law.
In a particularly sharp rebuke, Commission Executive Vice President Frans Timmermans — who was the point man on the rule of law in the previous Commission — made clear he believed EU law was being compromised for political expediency.
Timmermans said he “disagrees with the fact that the legal order is being adjusted to the political reality, instead of the other way around.”
Timmermans voted against the plan along with fellow Executive Vice President Margrethe Vestager, according to officials. Vice President Věra Jourová, Justice Commissioner Didier Reynders and Home Affairs Commissioner Ylva Johansson sent letters of concern. The dissenters hail from Europe’s center-left and liberal political families while von der Leyen is from the center-right European People’s Party.
In Warsaw, the Commission chief stood her ground, insisting Poland would not get recovery cash unless it addresses rule-of-law concerns. “The approval of this plan is linked to clear commitments by Poland on the independence of the judiciary,” she said.
Speaking alongside Prime Minister Mateusz Morawiecki and President Andrzej Duda, she stressed Warsaw must abolish a disciplinary chamber for judges — widely seen as a tool for political control — and replace it with an independent and impartial court.
Poland will also have to reform its disciplinary regime for judges, as well as ensure that judges disciplined under the current system get the right to have their cases reviewed, the president said.
And while Morawiecki rejected the notion that the rule of law is under threat in Poland, von der Leyen emphasized that “we are not at the end of the road on the rule of law in Poland” and that the use of EU funds will be monitored.
Commission critics
But von der Leyen’s confidence in the plan is not shared by some of her top lieutenants.
In his strongly worded statement issued for the minutes of Wednesday’s College of Commissioners meeting, Timmermans outlined “substantial concerns” about the plan’s milestones.
The Dutch social democrat wrote that the milestones “in themselves do not and were not intended to cover all problems with regard to the eroded impartiality and independence of the Polish judiciary,” according to the statement, seen by POLITICO.
The milestones, according to Timmermans, “do not address … the challenge by the Polish Constitution Tribunal (CT) of the primacy of EU law and the fact that the Polish National Council of the Judiciary (NCJ) is not independent.”
Both these issues, the vice president underscored, “continue to seriously undermine the impartiality and independence of the Polish judiciary as a whole and pose a serious challenge to the EU’s legal order.”
And while acknowledging that the recovery plan cannot address all issues, Timmermans lamented that the deal is not in line with judgments and orders from the EU’s top court.
While the Court of Justice of the EU ordered Poland to immediately suspend all decisions of its illegal Disciplinary Chamber for judges, the Commission’s plan outlines a new review process for these decisions that could take up to 15 months.
The two commissioners currently responsible for rule-of-law matters — Vice President for Values and Transparency Jourová and Justice Commissioner Reynders — also expressed discontent with the Polish agreement.
In a letter seen by POLITICO, Reynders said that he hopes the milestones will lead Poland to improve the rule-of-law situation but that he has “substantial doubts on certain aspects of these milestones, notably as regards the re-instatement of suspended judges.”
The Belgian politician declared that the recovery plan was being approved “in a situation where in Poland the supremacy of EU law continues to be undermined.”
Reynders also pointedly insisted that the assessment of whether Poland has reached the milestones “must also be a collegial exercise” — a plea for specialist commissioners to be heavily involved, rather than just von der Leyen and her entourage.
Morawiecki and Duda adopted a victorious tone during their press conference with von der Leyen, which is likely to fuel the worries of some commissioners that the plan will create an impression that Brussels’ complaints have been resolved.
In her written concerns, also seen by POLITICO, Commission Vice President Jourová warned the institution “to be very diligent when it comes to assessing in the next steps whether these valuable milestones are indeed met. Otherwise, I see our credibility in this exercise at risk.”