Today, the European Commission has adopted two legal acts that will pave the way for Poland to access up to €137 billion in EU funding. These acts relate to the rule of law reforms that Poland has adopted and the more recent and immediate steps that it has taken to address the milestones to strengthen judicial independence.
- 29 February 2024
Under the Recovery and Resilience Facility (RRF), the Commission has concluded its preliminary assessment of Poland's first payment request. The Commission concludes that Poland has satisfactorily fulfilled the two “super milestones” to strengthen important aspects of the independence of the Polish judiciary through reforming the disciplinary regime for judges. It has also satisfactorily fulfilled another super milestone committing Poland to use Arachne, an IT tool that supports Member States' audit and control systems and which therefore ensures the necessary safeguards against fraud. Once confirmed by Member States, today's Commission assessment would allow for the disbursement of €6.3 billion (net of pre-financing) in the coming weeks, from a total of up to €59.8 billion in RRF funds to Poland.
Following the above-mentioned reforms, the Commission also considers that Poland now fulfils the horizontal enabling condition related to the EU Charter of Fundamental Rights, allowing Poland to access up to €76.5 billion for its 2021 – 2027 Cohesion Policy, European Maritime, Fisheries and Aquaculture, and Home Affairs funding programmes.
The Commission also welcomes the commitment of the Polish government to address the long-standing rule of law concerns, also going beyond those regarding the disciplinary regime for judges, as based on the Commission's recommendations. During the General Affairs Council on 20 February 2024, the Polish authorities presented an ambitious Action Plan on the Rule of Law in Poland to address the issues raised by the Commission under the Article 7(1) procedure.
Measures to strengthen judicial independence
The Commission concluded today that following the measures taken between June 2022 and February 2024, the disciplinary regime applicable to Polish judges has been comprehensively reformed. The measures adopted by the Polish authorities will strengthen important aspects of the independence of the judiciary in Poland, overall improving the country's investment climate:
- The Disciplinary Chamber of the Supreme Court was abolished and replaced by an independent and impartial court established by law through the Law adopted on 9 June 2022, i.e. the Professional Liability Chamber (June 2022 law).
- The disciplinary regime has been reformed, and safeguards are in place so that judges no longer face a risk of disciplinary liability for the content of their judgments or for applying EU law. This was achieved through the June 2022 law and the Order of the Minister of Justice of February 2024, setting out the framework for the appointment of ad-hoc disciplinary commissioners, which allows unjustified disciplinary proceedings to be discontinued.
- All judges affected by the rulings of the Disciplinary Chamber have had the right to have their case reviewed by a new Supreme Court Chamber within a clear timeframe and on the basis of the new regime as set out in the June 2022 law. All those judges who had been wrongly suspended have been reinstated.
Moreover, in the Action Plan presented by Poland, there is a clear affirmation of its commitment to the respect of the primacy of Union law and of the jurisprudence of the Court of Justice of the EU (CJEU). This includes the CJEU judgement of 5 June 2023 (case C-204/21) declaring certain provisions of the Polish law on disciplinary offences of judges to be in violation of EU law, which requires all national authorities, and in particular, all national courts, to disapply these provisions.
Paving the way for payments of up to €59.8 billion in RRF funds
Following its preliminary assessment of the first payment request submitted by Poland on 15 December 2023, the Commission considers that Poland has satisfactorily fulfilled the 37 milestones and one target set out in the Council Implementing Decision approving Poland's RRP. This includes the two “super milestones” to strengthen important aspects of the independence of the judiciary and one “super milestone” related to audit and control. To ensure the effective protection of the Union's financial interests, these three “super milestones” must be fulfilled before any payment following a payment request can be made. Today's Commission preliminary assessment paves the way for the disbursement of €59.8 billion in RRF funds (€25.3 billion in grants and €34.5 billion in loans), i.e.:
- by launching the procedure for the disbursement of Poland's first payment request of €6.3 billion (net of pre-financing), as well as
- further disbursements of the overall RRF funds, conditional upon the satisfactory fulfilment of the milestones and targets outlined in its plan, until the end of 2026.
Poland's first payment request also covers important steps in the implementation of 25 ambitious reforms and five key investments. These measures aim at improving the resilience and competitiveness of its economy, advancing the green energy and digital transitions, as well as supporting health and clean mobility. Worth €1.4 billion, one of the biggest measures in the Polish plan concerns investment in the agricultural sector. Support is also already flowing to thousands of farmers and fishermen, as well as SMEs in the agricultural sector, to help them expand and modernise their production and enter new markets.
Another flagship measure concerns a reform to facilitate investment in the construction of onshore wind farms, and the redesign of the National Air Protection Programme to improve the air quality in Poland.
The fulfilment of the horizontal enabling condition on the EU Charter grants Poland access to up to €76.5 billion in EU funds
Enabling conditions are prerequisites which Member States must fulfil to ensure the effective and efficient use of shared management funds under the Common Provisions Regulation.
After a thorough assessment, the Commission concluded that Poland has implemented the necessary measures to ensure that there are mechanisms and arrangements in place so that the EU Charter of Fundamental Rights is respected by the programmes by design, and throughout their implementation.
At the time of approval of the programmes in 2022, Poland itself had indicated in its self-assessment that this enabling condition was not fulfilled. The Commission took note of this assessment in its decisions to approve the Polish programmes.
To address the deficiencies identified under this horizontal enabling condition on the EU Charter, Poland introduced several measures:
- Poland has established effective institutional and procedural arrangements to ensure compliance with the Charter in all stages of programming and implementation of the Cohesion Policy, European Maritime, Fisheries and Aquaculture, and Home Affairs funding programmes. Roles and responsibilities are clearly defined for bodies such as the Human Rights Ombudsman and Charter coordinators. An effective complaints mechanism and reporting arrangements have also been put in place;
- Poland addressed judiciary independence issues by reforming the disciplinary regime for judges. In addition, the Polish courts can initiate verification procedures on whether a judge meets the requirements of requirements of independence stemming from the Article 19 TEU on rule of law.
These reforms and the positive decision taken today means that Poland may start claiming reimbursements for investments under programmes that receive around €76.5 billion from the 2021 – 2027 Cohesion Policy, Maritime and Fisheries, and Home Affairs funding programmes.
Member States must ensure the fulfilment of the horizontal and thematic enabling conditions throughout the 2021-2027 programming period. As for all Member States, the Commission will closely and continuously monitor Poland's application of the measures put in place, primarily through monitoring committees, stakeholders, annual performance review meetings and reports, and audits.
If the Commission determines at any point that any enabling condition is no longer fulfilled, the reimbursement of the related expenditure will be suspended.
Poland to join EPPO
Today, the Commission has also adopted a decision confirming Poland's participation in the European Public Prosecutor's Office (EPPO). Following the request sent to the Commission by Poland, the EPPO will be competent to investigate and prosecute crimes affecting the Union's financial interests committed in Poland after 1 June 2021.
Poland will become part of the EPPO as of the date of the entry into force of the Commission's decision. The EPPO will be able to start its operations and investigations in Poland twenty days after the appointment of the European Prosecutor from Poland by the Council.
Background
Poland’s recovery and resilience plan
Poland’s recovery plan will be financed by €59.8 billion. To date, Poland has received €5.1 billion in loans and grants, as part of pre-financing relating to the REPowerEU funds under the RRF. In relation to Poland’s first payment request of €6.3 billion, the Commission has now sent its positive preliminary assessment of Poland’s satisfactory fulfilment of the milestones required for this first payment to the Economic and Financial Committee (EFC), which has four weeks to deliver its opinion. The payment to Poland can take place following the EFC’s opinion, and the adoption of a payment decision by the Commission.
Poland’s Partnership Agreement for 2021 – 2027 programming period
The EU Cohesion Policy, Maritime and Fisheries funds, and Home Affairs funds will promote economic, social and territorial cohesion in the Polish regions and help with implementing key EU priorities such as the green and digital transition.
The Funds will also support the country's competitive, innovative and sustainable growth, improve social inclusion, and develop skills for people facing difficulties with integrating into the labour market. The country's Cohesion Policy investment strategy worth almost €76.5 billion for the 2021-2027 programming period has been agreed in the Commission’s Partnership Agreement with Poland.
Rule of Law reforms and Article 7(1) procedure
The new Polish government has clearly expressed its willingness to address the long-standing rule of law concerns and committed to working on the basis of the Commission’s recommendations. To that effect, the Polish authorities have presented an action plan to the General Affairs Council on 20 February to address the issues raised by the Commission in the ongoing Art. 7.1 procedure. While the Art. 7.1 procedure is as such not related to the two decisions taken today, the action plan demonstrates the broader commitment by Poland to address these outstanding rule of law issues and a clear pathway how to get there. The Commission is currently analysing the content of the action plan in detail.