by Anna Wójcik

The European Commission has opened the second stage of proceedings for breach of EU law by Poland following the introduction of a new disciplinary system for targeting judges. On 17 July, the Commission issued a reasoned proposal.

The Commission is critical of the new Disciplinary Chamber of the Supreme Court, which does not meet the requirements of judicial independence; the Commission is also concerned with the introduction of disciplinary proceedings to punish judges for the content of judgements. Issues are also raised by repressions against judges for applying to the EU Court of Justice for preliminary rulings.

In addition to the Disciplinary Chamber of the Supreme Court, the neo-National Council of the Judiciary has come in for criticism.
“The new disciplinary regime does not ensure that a court ‘established by law’ will decide in the first instance on disciplinary proceedings against ordinary court judges. Instead, it empowers the President of the Disciplinary Chamber to determine, on an ad-hoc basis and with an almost unfettered discretion, the disciplinary court of first instance to hear a given case. The new regime no longer guarantees that cases are processed within a reasonable timeframe, allowing judges to be permanently under the threat of pending cases, and it also affects judges’ right of defence,” said the European Commission in a statement.

Deputy Prime Minister Jacek Sasin expressed his surprise that the Commission is continuing its proceedings. “It would be quite strange if a decision were to be taken by the European Commission, whose mandate to act, although formally in effect, is expiring.”

What now

The reasoned opinion is the next step in the infringement procedure under Article 258 of the Treaty on European Union, launched by the European Commission on 3 April 2019. The Polish government responded to the Commission’s note within the statutory period of two months. On 3 June, the European Commission presented its position on the disciplinary system for judges. Poland now has two months to comply with the Commission’s recommendations. After this period expires, if the Commission considers the actions of the Polish government unsatisfactory, it may refer the complaint to the CJEU.

This would be the third complaint by the European Commission against Poland for changes in the justice system. So far, the CJEU has issued a judgment regarding the Act on the Supreme Court, which it found to be inconsistent with EU law. Another judgement by the CJEU regarding a complaint against the Common Courts Act is to be announced in the autumn. Advocate General Tanchev has concluded that new provisions in the act were contrary to EU law.

In addition to the Commission’s complaints, the CJEU is also reviewing a number of preliminary questions from Polish courts concerning various aspects of changes in the judicial system. To date, the Advocate General has presented his opinion on one of these issues: he concluded that the Disciplinary Chamber of the Supreme Court did not meet the requirement of independence under EU law, because the judges elected to this chamber were appointed based on recommendations by the neo-Council, whose members were not properly appointed.

European Commission presents measures strengthening rule of law

On the same day it initiated the second stage of infringement proceedings against Poland over the judicial disciplinary system, the Commission also presented new mechanisms to protect the rule of law in the Member States.

“The European Court of Justice has recently reaffirmed that the rule of law is essential for the functioning of the EU. Its importance is also recognised by an overwhelming majority of EU citizens However, it has come under attack in several ways in the past five years. The European Commission has been fighting hard to resist these attacks with the tools available to us, and will continue to do so. Today we have decided to further strengthen our toolbox, to promote, protect and enforce the rule of law,” explained Vice President of the European Commission, Frans Timmermans.

The pillars of the rule of law measures are:

• to promote a common rule of law culture across Europe – to this end, the Commission wants to engage in dialogue with civil society and to finance civil society organizations;

• to prevent rule of law problems from emerging – the Commission is planning a new regular review of the state of the rule of law in the EU, as well as the expansion of the current EU report on justice system results;

• effective common response to rule of law breaches – the Commission communicated its plans to continue lodging complaints with the Court of Justice and summoned the European Council and Parliament to draft clear rules for conducting dialogue with Member States within the framework of the Article 7 TEU procedure. The Commission also indicated that it will apply accelerated proceedings and interim measures where necessary.

The Polish government has stated its opposition to the majority of these proposals.

Polish government opposes linking funds to observance of EU values

The European Commission has published documents summarising the contribution of stakeholders, including the Polish government, to the debate on improving mechanisms for protecting the rule of law. The Commission received 60 written comments.

Poland is of the opinion that the existing mechanisms – the political dialogue procedure provided for in Article 7 TEU, infringement proceedings, and referrals for a preliminary ruling – are sufficient.

Poland insists that new mechanisms should not be introduced, but rather that existing ones should be improved and based on informal dialogue between European institutions and the Member States. It emphasises that any mechanisms must not go beyond what is provided for in the Treaties.

The Polish Government firmly opposes any link between the disbursement of EU funds and respect for the rule of law.

In particular, it is opposed to such a link being a form of exerting additional political pressure on a Member State in the event that the political dialogue procedure provided for in Article 7 TEU proves ineffective.

While Poland does express its willingness to improve the Art. 7 procedure, at the same time it rejects the Commission being empowered to judge the “cumulative effect” of changes introduced by Member States on the state of the rule of law. It has also come out against the Commission obtaining information on the state of the rule of law from non-governmental organisations.

Poland even has reservations about including the opinion of NGOs in the discussion on changes to EU mechanisms for defending the rule of law. The Polish government provided its position in part by saying: “We express our doubt whether the form of a communication and an open invitation to express thoughts on the rule of law framework addressed to a large group of governmental and non-governmental actors will bring desired, viable results and whether the proposals would be legally applicable in the EU legal environment.”

Law and Justice politicians regularly demand an end to the political procedure under Article 7 against Poland. We have written about this previously in “Government to the European Council, the Commission and the EU Member States. Arrogant Self-Defence“. During the discussion on Ursula von der Leyen’s candidacy for the position of President of the European Commission, MEP Patryk Jaki, previously Deputy Minister of Justice, demanded that the European Commission “end the embarrassing Article 7 political campaign against Poland.”

The Polish government rejects most of the proposals currently under discussion to improve mechanisms for protecting the rule of law within the EU. It also disagrees with the introduction of a cyclical review of the state of the rule of law in the Member States, a measure announced by the European Commission.

In addition, the Polish government believes that the definition of rule of law should be based solely on the case-law of the Court of Justice of the European Union, and not on other sources – probably the definition proposed by the Venice Commission of the Council of Europe, which is invoked by the European Commission, is not to its liking, nor are the definitions present in legal scholarship.

Political will in Europe for improving EU rule of law mechanisms

Defence of the rule of law is one of the priorities of Finland’s 6-month presidency of the European Council. The slogan of the presidency, which began on 1 July, is “Sustainable Europe – sustainable future”. The four priorities are:

• to strengthen the EU’s position as a global leader in climate action
• to strengthen common values and the rule of law
• to make the EU more competitive and socially inclusive and
• to protect the security of citizens comprehensively

“The European Union is first and foremost a community of values. It is not a store where we can choose today a little bit of freedom of speech and human rights, but then decide not to pick freedom of the press or independent courts today. It doesn’t work like that in Western democracies.”- said Finnish PM Antti Rinne in the European Parliament.

“Human rights, freedom, democracy, equality and the rule of law are all values that EU countries commit to as part of their membership.

These values belong together. They are the cornerstones of all EU action.

But they are not just values, they are a European reality. Because of these values, European societies are safer and more secure, more stable and more prosperous than anywhere else in the world.

We Europeans know better than anybody what happens if we lose sight of these values.”

The President of Finland added that defence of these values within the European Union was vital to the credibility of the EU in the world.

Rinne recalled that the Finnish presidency has always been characterised by a pragmatic, constructive approach. The aim is to work together with the European Parliament to develop better and more effective tools and mechanisms for defending EU values in the Member States.

The procedure for political dialogue with Article 7 TEU will be scrutinised. Further negotiations were also announced on a closer link between the disbursement of EU funds and respect for the rule of law in order to achieve a “balanced and effective mechanism”.

A day earlier, in the European Parliament, President of the European Commission Ursula von der Leyen declared that:

“The Rule of Law is our best tool to defend these freedoms and to protect the most vulnerable in our Union. This is why there can be no compromise when it comes to respecting the Rule of Law. There never will be. I will ensure that we use our full and comprehensive toolbox at European level. In addition, I fully support an EU-wide Rule of Law Mechanism. To be clear: the new instrument is not an alternative to the existing instruments, but an additional one.”

Her creed is: “There is only one option for me: to unite and strengthen Europe.

Anyone that is with me in wanting to see Europe grow stronger and to flourish and blossom can count on me as a fervent supporter. However, anyone that wants to weaken or divide Europe or rob it of its values will find in me a bitter opponent.”

We will continue monitoring the political and legal issues surrounding the rule of law in the European Union.

[translation by Matthew La Fontaine]