This Recommendation complements the Recommendation of 27 July 2016, taking into account the latest developments in Poland.

The Commission considers that the procedure which led to the appointment of a new President of the Tribunal on 21 December 2016 raised serious concerns as regards the rule of law. The Commission believes that there continues to be a systemic threat to the rule of law in Poland, which needs to be addressed as a matter of urgency. In its complementary Rule of Law Recommendation, the European Commission sets out in detail the remaining as well as its new concerns and invites the Polish Government to solve the problems identified as a matter of urgency. On the basis of the Recommendation, the Commission remains ready to pursue a constructive dialogue with the Polish Government

The Commission recommends in particular that Poland:

– Follows up on actions already requested in the 27 July Rule of Recommendation

• to fully implement the judgments of the Constitutional Tribunal of 3 and 9 December 2015 which requires that the three judges lawfully nominated in October 2015 can take up their function;
• to publish and fully implement all the judgments of the Constitutional Tribunal, including those of 9 March and 11 August 2016 concerning the Law on the Constitutional Tribunal;
• to ensure that any reform of the Law on the Constitutional Tribunal respects the judgments of the Constitutional Tribunal, takes the Opinion of the Venice Commission fully into account and ensures that the effectiveness of the Constitutional Tribunal as a guarantor of the Constitution is not undermined;
• to refrain from actions and public statements which could undermine the legitimacy and efficiency of the Constitutional Tribunal.

– In addition, ensures that the Constitutional Tribunal can as a matter of urgency effectively review the constitutionality of the Law on the status of judges, the Law on organisation and proceedings and the Implementing Law, and that the judgments concerned are published without delay and implemented fully;

– Ensure that no appointment of the new President of the Constitutional Tribunal take place as long as the judgments by the Constitutional Tribunal on the constitutionality of the new laws have not been published and implemented fully, and as long as the three judges that were lawfully nominated in October 2015 by the 7th term of the Sejm have not taken up their judicial functions in the Tribunal;

– Ensure that as long as a new President of the Constitutional Tribunal has not been lawfully appointed, he is replaced by the Vice-President of the Tribunal and not by an acting President, or by the person appointed as President of the Tribunal on 21 December 2016.

Finally, the Commission underlines that the loyal cooperation which is required amongst the different state institutions in rule of law related matters is essential in order to find a solution in the present situation.

Full text of the recommendation can be found here.