On Sunday, four European judges' associations sued the EU Council over its decision to unblock funds for Poland. They argue that the "milestones" specified in Poland's recovery and resilience plan fail to meet rule of law standards.
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The Association of European Administrative Judges (AEAJ); the European Association of Judges (EAJ); Rechters voor Rechters and MEDEL – filed an unprecedented lawsuit on Sunday with the General Court of the EU (part of the CJEU). The lawsuit seeks to challenge the Council’s decision of June 17 approving Poland’s recovery and resilience Plan.

- The "milestones" negotiated between the European Commission and the Polish government [which Poland has to meet to unblock the EU funds] fall far short of what is required to ensure effective protection of the independence of judges and the judiciary and disregard the judgments of the CJEU on the matter. Judgments of the CJEU on the subject of the independence of judiciaries should be enforced without delay and in full, and EU institutions cannot even partly act incoherently with them. The EU Council's decision violates this principle, that is, because there is no full – i.e. unconditional – enforcement of CJEU judgments- the authors jointly announced on Sunday.

Representatives of the 27 member states in the Council approved the Polish Recovery and Resilience plan in June in the form negotiated earlier between the European Commission and the Polish government. The national plans are based on a timetable for the implementation of reforms and investments. Once these goals are met and verified by Brussels, further installments of funds should be disbursed. But in Poland's case, there are also rule of law "super milestones" regarding judiciary independence.

A compromise on these specific provisions caused considerable controversy in the European Commission. In the EU Council, however, only the Netherlands abstained, while the rest of the EU countries supported the Polish recovery plan. 

Timmermans’ line of argument

The most contentious point in Poland’s recovery plan, which the judges' associations also point out, concerns the way in which judges affected by the decision of the Supreme Court's Disciplinary Chamber, which was replaced in July by the new Professional Liability Chamber, are reinstated. According to the recovery plan’s provisions, the condition for receiving the first payments is not that these judges be reinstated, but that they are given a path to have their cases "reviewed" by a court that meets EU standards with a first hearing within three months of the request for review. A decision on the judges who take advantage of this review route should be made within 12 months, which Brussels is not supposed to review until the end of 2023, and only then possibly demand repayment of already paid installments from the recovery plan should Poland fail to meet these obligations.

However, the authors of the lawsuit filed on Sunday stress that, according to the CJEU ruling, judges suspended by decisions of the Disciplinary Chamber should be immediately reinstated, without the need for separate proceedings in this regard.

-Meanwhile, the milestone would introduce a procedure of more than a year with an uncertain outcome – the four associations point out. They explain that the goal of the lawsuit is to prevent a Commission decision to unblock EU funds for Poland until the CJEU judgments are fully and completely enforced.  

- In particular, the „milestones" concerning the reinstatement of Polish judges unlawfully suspended by the unlawful body known as the „Disciplinary Chamber" purport to authorise – and in effect financially reward – a course of action which is inconsistent with the judgment of the Court of Justice of 15 July 2021, and would worsen the position of Polish judges subjected to unlawful sanctions and further undermine judicial independence in Poland and other EU Member States- argue the Good Lobby Profs (including professor Laurent Pech) in support of the lawsuit.

The lack of immediate reinstatement of the judges was the reason for Frans Timmermans' objection when the draft recovery plan was approved in early June. The European Commission has so far had no opportunity to respond to the complaint of the judges' organizations, but in recent weeks its representatives have argued that the recovery plan is merely a kind of "safety net" for the CJEU rulings. These should be implemented in full and without delay, but the Commission intends to pursue this not so much through the recovery and resilience plan, but through regular anti-infringement proceedings (with a finale in the CJEU). It also continues to impose fines of one million euros a day on Poland for disregarding last year's CJEU interim measure regarding the so-called "muzzling law".

President Duda’s bill is insufficient

Another condition defined in Poland’s national recovery and resilience plan is also the reform of the judicial disciplinary regime so that disciplinary misconduct does not include asking preliminary questions to the CJEU and conducting a test of a judge's independence in accordance with EU law.

"It will be ensured that - in the event of serious doubts in this regard - the competent court will have the possibility to carry out, as part of judicial proceedings, a verification of whether the judge in question meets the requirements of independence, impartiality and being appointed under the law in accordance with Article 19 of the EU Treaty, while this verification cannot be considered a disciplinary offense - reads the text of the recovery and resilience plan negotiated with the Polish government.

Officially, the European Commission argues that it has not completed assessing the new presidential bill, which was adopted in June, and theoretically must do so only after Poland submits its first application for funds from the recovery plan. While rule of law experts highlight the shortcomings of the Chamber of Professional Liability established by the Presidential bill, which according to the milestones should be an independent court, the European Commission is focusing precisely on the test of the judge's independence.

- The new law ["Duda's Law"] does not provide judges with the ability to question the status of another judge without risking being treated as a disciplinary offense. These are issues that need to be resolved in order to fulfill [Poland's] obligations, and therefore to unblock the first payment," Ursula von der Leyen, the president of the European Commission, said back in early July, echoing an earlier declaration by Vice President Vera Jourova. But neither of them is now declaring that an amendment to the "Duda bill" would be the only way to fix the problem.

Poland is playing a waiting game

The recovery and resilience facility allows Poland to access €22.5 billion in grants and €12.1 billion in low-interest loans. Moreover, the Polish government can ask Brussels for a remaining €22 billion in loans, but no later than 2023. When Brussels approved Poland's recovery plan, it was estimated that Poland - after meeting milestones and other conditions - could get about €2.8 billion in grants as early as the third quarter of this year, and €3 billion and €2 billion in the first and third quarters of 2023 respectively.

The Polish government first announced that it would apply for the first tranche from the recovery fund this summer, but it keeps delaying the date. Marcin Horała, deputy minister overseeing development funds and regional policy, announced in August that "[the government] will apply for the first payment at the end of this year or at the beginning of next year". This would mean that Brussels would not have a chance to verify the rule of law milestones until early next year.

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