Thread by @ProfPech

After multiple ☕️ I'm finally done reading @vonderleyen's #ruleoflaw “kapitulation” (to borrow title of @prof_mayer's recent @Verfassungsblog post) recovery package for #Poland: verfassungsblog.de/die-kapitulati…
Long thread ⬇️

https://twitter.com/ProfPech/status/1532695229035339777

1/ Before getting into details of it, quick quiz Q: How many times is the rule of law mentioned in 239p-long annexes to Commision proposal for Council implementing decision detailing the Polish recovery and resilience plan?

2/ And the answer is... 0. 0 also for Comm proposal of 17p and 1 mention in Comm working doc of 75p = so 1 mention in 331 pages 👏

3/ One can only imagine what would be situation if VDL had not previously committed herself to a no-compromise approach only to constantly compromise on #ruleoflaw, with latest milestone charade only latest example as noted by @prof_mayer (eng translation of VBlog post here)

4/ Quite symbolic to see VDL Comm not reproducing ECJ language on rule of law forming “part of the very foundations of the [EU] and its legal order”. Granted it did refer on multiple occasions to independence of judiciary but only to throw 🇵🇱 judges under the bus as we shall see

5/ Before we get to the sell-out of (brave) Polish judges who have fought for years to uphold PL/EU rule of law, evidence of lack of serious/reality-disconnected nature of the Comm’s assessment quickly emerges when issue of protection of EU financial interests gets mentioned

6/ Meanwhile, in the real world… see e.g. euobserver.com/rule-of-law/15… and most recently from @EUProsecutor chief

https://twitter.com/notesfrompoland/status/1531881064741978113

7/ Meanwhile, in the real world (II) re national audit body mentioned in recital 51... and i could go on and on about reality of "consultation process"

8/ but let’s return to judicial protection: 1st mention of “milestones” in this respect follows yet again another reality-disconnected assessment and aspirational reminder to 🇵🇱 authorities that they must comply “at any time” with judicial protection related case law of the ECJ

9/ Meanwhile, in the real world (III), ECJ case law has been made “unconstitutional” last yr by ruling coalition 🦘CT (did same later re ECtHR Art 6(1) case law) but seemingly VDL cabinet not aware of that or fact this is Comm’s own (correct) diagnosis 🤡ec.europa.eu/commission/pre…

10/ Comm’s recovery proposal also ignores virtually all systemic issues: unconstitutional neo-NCJ (recently reconducted in breach of ECHR judgments), fundamental irregularities in current judicial appointments, SCt fake judges of SCt, 🦘unlawfully composed CT 👏👏

11/ Why this reality-disconnected assessment? Only way to be able to claim conditions are met to 🟢light recovery plan = if you ignore that EU RoL requirements are & will continue to be systematically violated in 🇵🇱 regardless of Duda’s fake compliance bill/soon law = all good 🤡

12/ Instead, VDL decided to connect recovery plan approval with single yet one must concede systemic issue: unlawful PiS disciplinary regime for judges as established by ECJ in ruling of 14/07/21 (itself found unconstitutional later but 🤫 don't tell VDL) verfassungsblog.de/protecting-pol…

13/ Ok at least there is that one may say? Yes except Comm has come up with “milestones” & “bribes” - sorry payments - to be collected along the way instead of requesting *full* compliance with ECJ ruling as a PREREQUISITE + simultaneously asking ECJ for financial sanctions

14/ Reminder: Comm sitting on Art 260 action since last Sept = months wasted for no good reason apart from autocrat-appeasement. As @rdanielkelemen put it, "Never underestimate the European Commission's willingness to appease Europe's pet autocrats"
journals.sagepub.com/doi/full/10.11…

@rdanielkelemen 15/ Let's return to 1st ever (TBOMK) use of “milestones” to get MS to comply with its legal obligations. My main objection: they transform compliance with ECJ rulings as an a la carte process to be financially incentivised with application of ECJ rulings considered as ‘reforms’

16/ Case for defence: Comm does refer to obligation of 🇵🇱 to comply with EU law & rulings of the ECJ but Comm ignores current industrial scale violations of this obligation + whole recital is awkward as seems to imply approval of milestones no guarantee EU law won't be violated

17/ Let’s now look at the two judiciary milestones starting with milestone F1.1 Reform strengthening the independence and impartiality of courts

18/ Reminder: instead of a “milestone”, Comm ought to have required as a **prerequisite** full compliance with ECJ ruling/order of 14/15 July 2021; payment of all accumulated fines + formal undertaking Polish authorities recognise they are bound by Art 19(1) TEU ECJ case law

19/ And if VDL & cabinet had wanted a meaningful “milestone’, they would have added compliance with forthcoming ECJ #muzzlelaw ruling considering ECJ order in the same case is CURRENTLY OPENLY violated with 🇵🇱 refusing to pay €1m daily penalty payment...
euractiv.com/section/politi…

20/ Instead we have a milestone which seeks to financially incentivise (rather than sanction) 🇵🇱into complying with their obligation to comply with ECJ ruling re PiS dictatorial disciplinary regime for judges. Fair enough one may say. Several/serious problems however can be noted

21/ To begin with strange to see Comm refers to bogus Disc Chamber (DC) and its “decisions” as if it is a lawful body issuing lawful decisions when 🇵🇱 SCt ECJ and ECtHR have already established the opposite in multiple rulings which are NOWHERE mentioned

https://twitter.com/ProfPech/status/1460647978750861313?s=20

22/ Comm indicates “significantly different” composition for DC 2.0 would be acceptable which arguably violates ECtHR rulings (all DC members were grossly irregularly appointed) + mere “transfer” to another chamber cannot be a solution as all are gangrened by PiS SCt #FakeJudges

23/ Worse, core of this milestone is bogus with VDL (deliberately) falling for what @J_Jaraczewski described as a feint = pretend that bogus renamed DC 2.0 envisaged by Duda is ok. This will be proven plainly wrong but not before money is disbursed... verfassungsblog.de/just-a-feint/

24/ Surely this can’t be possible? see previous example of Comm’s denying legal reality in order not to do its job when confronted with manifest violation of ECJ order of 08/04/20 regarding… DC 1.0. ECtHR unusually blasted EU Comm for this in 2022

https://twitter.com/ProfPech/status/1505506392316207107?s=20&t=Nxik2MkOCESyY9FI7rCo9g

25/ Another problem: Qualitative indicator for assessing compliance with milestone is seemingly the mere adoption of a law. Doesn’t matter apparently there is no longer any effective review of the constitutionality of laws in Poland;

26/ that ruling party is pushing a bill in breach of Comm’s own Art 7(1) recommendation about consultation of judiciary & @VeniceComm; can get a smoke and mirrors law through which can furthermore be struck down at any time by unlawfully composed CT; I could go on and on...

27/ Before I move on to milestone F1.2 (Reform to remedy the situation of judges affected by the decisions of the Disciplinary Chamber of the Supreme Court in disciplinary cases and judicial immunity cases), allow me a 🍺 break as this is taking longer than I thought

28/ Break over to quickly dissect what has been rightly described as the most shameful aspect of “deal” negotiated by "no-compromise" (just kidding!) @vonderleyen as noted by @JMorijn

https://twitter.com/JMorijn/status/1532399807742066688?s=20&t=9M22U7gIS0ZxnNWXivK9jw

29/ Instead of demanding immediate reinstatement (which can be done immediately), Comm asking for procedure to review cases UNLAWFULLY decided by UNLAWFUL DC = akin to asking victims of a robbery to first establish robbery is unlawful before what was stolen is eventually returned

30/ No mention of UNLAWFUL nature of DC/its "decisions". Here I would submit Commission is directly violating Poland’s SCt resolution of 23 Jan 2020 (*which itself applied ECJ and ECHR rulings*) which held DC decisions are ones from unlawful body & “deserve no [legal] protection”

31/ Adding insult to injury, Comm has interpreted “without delay” in a way which actually creates absurd delays… while the effects of UNLAWFUL decisions by UNLAWFUL body can be maintained UNTIL END OF 2023... As shown by @Patryk_1234567 this is just nuts

https://twitter.com/Patryk_1234567/status/1532443030346776578?s=20&t=C8uLG1YnYQGcTEpsae9EuQ

Adding insult to insult, VDL has also included possibility for DC 2.0 *not* to adjudicate “in exceptional circumstances” = not defined anywhere TBOMK = perfect excuse to punish the most vocal judges who have become symbols of the fight against ruling coalition’s lawlessness

33/ & as noted above, DC 2.0 will be another puppet body of ruling coalition whose decisions highly unlikely to survive scrutiny in Strasbourg but by then EU money will be gone = this charade will make Comm complicit in violations of judges’ right to effective judicial protection

34/ But I am not done with this useless wicked milestone: qualitative indicator foreseen by Comm is “cases adjudicated” = this means e.g. all will be good to get 💶 if unlawfully suspended judges are suspended another time by DC 2.0 under new, false pretenses 👏👏

35/ And because this milestone has been so poorly designed, it can be evaded with 🇵🇱 authorities in position to demand recovery 💶 while they continue to violate ECJ case law but using means not mentioned in genius milestone table (e.g. forced transfer)
apnews.com/article/europe…

36/ In less than 24 hours, we can already see signs 🇵🇱 authorities & captured bodies will not meaningfully comply with VDL milestones no doubt feeling that if they can get away with legal #Polexit & get bn of 💶 following year why bother even pretending

https://twitter.com/ProfPech/status/1532692863942803459

37/ Even more tragically, we’re seeing absurd interpretation of EU law being promoted by… EU officials… desperate to justify an inane and IMO unlawful milestone…

https://twitter.com/ProfPech/status/1532409749991477250

38/ My prediction is that VDL’s (Faustian) deal is bound to backfire in due course when evidence of the charade/cosmetic or fake compliance will increasingly emerge and sadly, this will only but fatally undermine the Commission’s authority and credibility on the rule of law front

39/ To paraphrase @TimmermansEU, VDL is ready to undermine functioning of EU legal order/ECJ authority to achieve whatever political goals she has with #ruleoflaw/compliance with ECJ rulings considered an adjustment variable. Sad! (& end of 🧵)

https://twitter.com/liliebayer/status/1532633696704004101