ISSN 2330-717X

Ukraine Inspires Brussels-Warsaw Rapprochement, But Cash Still Stuck – Analysis

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The mood music between Poland and the European Commission might have changed amid Russia’s war in Ukraine, but there’s still no deal on tens of billions of euros of frozen recovery funds.

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By Claudia Ciobanu

In mid-March, with his country at the forefront of a more-or-less united Western response to Russia’s invasion of Ukraine, Prime Minister Mateusz Morawiecki declared that Poland “has never had such an excellent brand, all over the world.”

The country has taken in around 2.5 million Ukrainian refugees, more than any other country in the world, allowed weapons to be sent to Ukrainian forces via its territory, and has firmly aligned itself with the main messages sent by the European Union, even at the cost of its usually united front with Hungary.

But if Morawiecki believed the sense of unity coursing through the EU might move Brussels to release 36 billion euros in frozen post-pandemic recovery cash, he was wrong.

A month on, the European Commission, the EU’s executive arm, appears to be sticking to its guns, insisting Poland adhere to the rulings of the European Court of Justice, ECJ, concerning the independence of the Polish judiciary.

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“Poland is now the bad guy and the good girl at the same time,” said Jakub Jaraczewski, a legal expert at Democracy Reporting International.

“It has taken in over 2.5 million Ukrainian refugees, is punching above its weight diplomatically against Russia, and is exposing itself to credible danger by allowing weapon supplies for Ukraine to be ferried through Polish territory. At the same time, the Polish government continues to dismantle the rule of law in the country, harass judges and weaken checks and balances.”

Hopes dashed

At issue is Warsaw’s refusal to dismantle a disciplinary body that has been used to rein in judges on the Supreme Court, as per a ruling by the ECJ which imposed a fine of one million euros for each day that Poland fails to comply.

The Commission says it will not release the recovery funds until Poland acts in line with the ECJ ruling.

While dismantling the Disciplinary Chamber will not in itself solve the problems of a justice system that, as experts warn, has been heavily politicised, Brussels would regard it as a significant step forward.

Even before Russia invaded Ukraine on February 24, the Polish government had shown signs of softening its stance.

Less than two years before the next general election, hit with inflation and soaring energy prices, the executive in Warsaw on the whole understands that it cannot afford to lose the recovery cash. Hence two draft laws, one proposed by President Andrzej Duda and another by lawmakers of the governing Law and Justice, PiS, party, were submitted to parliament and included proposals to dismantle the Disciplinary Chamber.

With Poland spending heavily on Ukrainian refugees – and the EU not releasing any new money for that purpose – rumours abounded that Brussels was ready to be more lenient with Warsaw over the rule of law.

Brussels, some said, might even be ready to start paying out the cash before any law on the Disciplinary Chamber is fully approved and even if the texts are imperfect.

A deal seemed so close that some speculated it would be announced during an April 9 visit by Commission President Ursula Von der Leyen to Warsaw for an event to express solidarity with Ukraine.

Days before her arrival, however, Morawiecki said that negotiations were ongoing but an agreement might not come before late April or even May. Von der Leyen stuck to the script, repeating the conditions Brussels wants met.

Good will

So what was the stumbling block?

Days before Von der Leyen’s Warsaw trip, quoting anonymous diplomatic sources in Brussels, several Polish media reported that Warsaw had added some new conditions of its own, primarily related to dropping the ECJ fines.

On April 5, Polish government spokesman Piotr Muller appeared to give credence to the reports, pointing to the possibility of future fines as a major concern.

The government agrees to the dismantling of the Disciplinary Chamber but not to “far-reaching ambiguities in the declarations” that may lead to misunderstandings in the future, Muller said. The key issue, he added, was the “withdrawing (…) of those solutions which refer to the request to impose fines.”

The statement can be understood to mean that Warsaw does not wish to accept any control exercised by Brussels over the shape of its justice system via ECJ rulings and fines.

Brussels likely balked, not least given that the law that would dismantle the Disciplinary Chamber has still to be adopted.

One powerful opponent to any deal with Brussels is hardline Justice Minister Zbigniew Ziobro, who has been a major driver of Poland’s rejection of the EU legal system and the authority of the ECJ.

PiS is dependent on Ziobro’s small party for its parliamentary majority. Nothing has changed there, and nor have the conditions set by Brussels.

“Reforms linked to public administration and rule of law are key elements of the overall recovery strategy,” Izabela Zygmunt, European Semester Official at the Commission representation in Warsaw, told BIRN after Von der Leyen’s visit.

“The Polish [spending] plan should contribute to effectively addressing the country-specific recommendation issued to Poland to safeguard the independence of its judiciary,” she said.

“To that end, it must include commitments to dismantle the Disciplinary Chamber, end or reform the disciplinary regime, and start a process to reinstall the dismissed judges. These elements are a conditio sine qua non [necessary condition] for the Commission to approve the plan.”

Some experts argue the time is ripe for some creative thinking, considering the air of goodwill over Ukraine and the re-election this month of Hungary’s Viktor Orban, which gives Brussels even greater incentive to bring Warsaw back in from the cold.

“The EU must be smart about how to tackle this situation,” Jaraczewski told BIRN.

While it may prove “awkward,” he said, “The EU should both release emergency funding for Poland to help with the refugee situation and at the same time continue to withhold the recovery fund until Poland credibly steps back from attacking its own judges.”

Balkan Insight

The Balkan Insight (fornerkt the Balkin Investigative Reporting Network, BIRN) is a close group of editors and trainers that enables journalists in the region to produce in-depth analytical and investigative journalism on complex political, economic and social themes. BIRN emerged from the Balkan programme of the Institute for War & Peace Reporting, IWPR, in 2005. The original IWPR Balkans team was mandated to localise that programme and make it sustainable, in light of changing realities in the region and the maturity of the IWPR intervention. Since then, its work in publishing, media training and public debate activities has become synonymous with quality, reliability and impartiality. A fully-independent and local network, it is now developing as an efficient and self-sustainable regional institution to enhance the capacity for journalism that pushes for public debate on European-oriented political and economic reform.

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