There is reason to question the independence of the Polish judiciary; over the past two years, Polish legislature has adopted more than 13 laws that arguably place the courts in the control of the ruling political majority. Over the last two years, the European Commission (EC), part of the EU’s executive branch, has attempted to address these issues with Poland through the Rule of Law Framework—a framework intended to foster dialogue with member states who exhibit emerging systemic threats to the rule of law. Through this process, the EC assesses the situation, makes a formal recommendation and monitors the member state’s follow-up efforts. The EC’s use of this process to de-escalate the crisis in Poland, however, has been unsuccessful.
On Dec. 20, the EC made three key moves aimed at protecting the rule of law in Poland. Invoking Article 7 of the Treaty on the European Union (TEU) for the first time, the EC formally proposed that the European Council declare that Poland’s actions constitute “a clear risk of a serious breach” of European Union values. The commission also adopted a new Rule of Law Recommendation to address concerns—the fourth in a series of recommendations addressing the independence of the Polish judicial system. Finally, the EC referred the Polish government to the European Court of Justice (ECJ) for breach of EU law.
Exercising Article 7 Authority
The Article 7 mechanism used by the EC is aimed at ensuring that EU countries respect the common values of the EU as enumerated in Article 2 of the TEU. It gives the commission the power to refer possible violations of EU core values, including respect for the rule of law and democracy. In initiating these proceedings to address the apparent breach in Poland, the EC invoked Article 7 for the first time.
The EC’s “Reasoned Proposal” requests that the Council make a determination about whether Poland committed a serious breach of Article 2, particularly the rule of law based on “the lack of an independent and legitimate constitutional review,” and on several new Polish laws that raise “grave concerns” about judicial independence. The laws affect the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary, effectively placing the judicial system under the political control of the elected government.
Among the EC’s key concerns in the proposal is composition of the Constitutional Tribunal. The Polish government’s refused to seat three judges in the Constitutional Tribunal despite their lawful nomination by the previous legislature, and enabled three newly appointed judges to join the tribunal without a valid legal basis for doing so. Although the laws behind these actions were found unconstitutional by the tribunal, the Polish government has refused to publish those decisions, effectively keeping the unconstitutional laws in place. The government-appointed president of the tribunal took a number of steps to further undermine the court’s legitimacy, changing the composition of the bench to suit the current government.
The EC’s proposal also addresses the effect of new laws on the rest of the judiciary, highlighting a law which reduces the mandatory retirement age of Supreme Court from 70 to 65, which would have the effect of forcing nearly 40 percent of the roughly 80 Supreme Court judges into retirement. The proposal also describes several other problematic new laws—including a law which allows the Polish president to unilaterally decide to prolong the term of a Supreme Court justice beyond the mandatory retirement age, a law which allows the Supreme Court to overturn any final judgment of a Polish court made within the last 20 years, and a law giving the Minister of Justice the power to dismiss the presidents of lower courts without any particular criteria—all which all of which undermine the separation of powers, and the independence and legitimacy of the judicial system.
The proposal chronicles the attempted dialogue between the EU and Poland under the Rule of Law Framework, beginning in January 2016. Over the course of nearly two years, the EU repeatedly attempted to convince the Polish government to undo the changes to its judicial system and to implement decisions reached by the country’s Constitutional Tribunal. Poland engaged with the EU to a limited extent but did not implement recommendations.
Under Article 7(1) of the treaty, a “reasoned proposal” like this one triggers a procedure in the European Council to assess whether there is “a clear risk of a serious breach” of the EU’s fundamental values. The council will hear arguments from Poland, and if a four-fifths majority of EU members—22 countries—determine that such a risk exists, will issue a formal recommendation. If, following the Article 7(1) recommendation, the council finds a “serious and persistent breach” of values the council can impose penalties on Poland under Article 7(2), including suspension of Poland’s voting rights in the European Council (but only by unanimous agreement).
Rule of Law Recommendation
The commission also adopted a Rule of Law Recommendation addressing specific recent changes to Polish law: the new law on the Supreme Court and the law on the National Council for the Judiciary, both adopted by the Polish Parliament on Dec. 15. The law on the Supreme Court reduces the retirement age of justices from 70 to 65, gives the president the power to prolong the mandate of a justice, and creates an appeals procedure that allows the Supreme Court to overturn any final judgement made by any court in the last 20 years. The law on the National Council for the Judiciary provides for the premature termination of the mandate of all members of the National Council for the Judiciary, and by estables an entirely new regime for the appointment of new judges which “allows a high degree of political influence.” This Rule of Law Recommendation is the fourth in a series of recommendations by the commission; The first, second and third recommendations were made in July 2016, December 2016, and July 2017 respectively.
The recommendation calls for Polish authorities to amend the new laws, particularly by eliminating the retirement requirements for both Supreme Court and Ordinary Courts; by removing the discretionary power of elected officials to prolong the mandate of judges who have reached retirement age; and to restore the independence and legitimacy of the Constitutional Tribunal by ensuring that its judges, president and vice president are lawfully elected and that all its judgements are published and fully implemented.
The EC also noted that Poland has yet to implement previous Rule of Law Recommendations and that the concerns in those three recommendations “remain valid.”
Referral to European Court of Justice
Finally, the EC referred Poland to the ECJ for a breach of EU Law. Poland’s Law on the Ordinary Courts introduces a retirement regime that mandates a retirement age of 60 for female judges and 65 for male judges, a discrepancy that the EC believes violates Article 157 of the Treaty on the Functioning of the European Union (TFEU) and Directive 2006/54, both of which protect on gender equality in employment. The EC noted that it will also raise concerns in its referral to the ECJ about the problematic discretionary power of elected officials to prolong the mandate of judges who have reached retirement age, mentioned in the EC’s proposal and Rule of Law recommendation.
Poland responded to the EC’s action defiantly, signing the two new laws addressed in the Rule of Law recommendation into effect just hours after the EC’s actions. Poland’s foreign ministry described the EC’s move as “one-sided and unfair,” and stated that it is “ready to defend its claims at the Court of Justice.”
For a formal warning to be issued, at least 22 EU member states must vote in favour of the commission’s proposal for a formal warning. For penalties to be imposed—such as the suspension of voting rights in EU institutions—there would need to be unanimous agreement among the other member states in a subsequent vote. Because unanimity is required, penalties are unlikely; Hungary’s Prime Minister has already stated that Hungary will block any punitive measures against Poland in the European Council.