Frans Timmermans – Photo EC
(BRUSSELS) – The European Commission substantiated its grave concerns on a planned reform of the judiciary in Poland Wednesday in a Rule of Law Recommendation addressed to the Polish authorities.
In a statement, the EU executive says that following up on its ‘rule of law procedure’ in January 2016, the Polish authorities have one month to address the problems. They are also being asked not to take any measure to dismiss or force the retirement of Supreme Court judges.
Should they do so, the Commission says it stands ready to immediately trigger the Article 7(1) procedure a formal warning by the EU that can be issued by four fifths of the Member States in the Council of Ministers.
The Commission also decides to launch an infringement proceeding against Poland for breaches of EU law. The College will immediately send a Letter of Formal Notice once the Law on the Ordinary Courts Organisation is published.
At the same time, the Commission recalls its offer to pursue a constructive dialogue with the Polish Government.
EC first vice-president Frans Timmermans said the Commission recommendations are clear: “It is time to restore the independence of the Constitutional Tribunal and to either withdraw the laws reforming the judiciary or bring them in line with the Polish Constitution and with European standards on judicial independence. Polish courts like the courts of all Member States are called upon to provide an effective remedy in case of violations of EU law, in which case they act as the “judges of the Union” and must comply with the requirements of the independence of the judiciary in line with the Treaty and the Charter of Fundamental Rights. We want to resolve these issues together in a constructive way. The Commission’s hand remains extended to the Polish authorities for dialogue, and we welcome any steps to amend these laws in line with our Recommendations.”
1. Rule of Law Recommendation
The Rule of Law Recommendation complements two previous Recommendations, adopted on 27 July and 21 December 2016, and concerns the lack of an independent and legitimate Constitutional review in Poland. As it stands, the Polish authorities have still not addressed the concerns identified in the first two Recommendations. Moreover the Polish authorities have now taken additional steps which aggravate concerns about judicial independence and significantly increase the systemic threat to the rule of law in Poland.
The Commission’s Rule of Law Recommendation sent today to Poland covers four new legislative acts now adopted by the Polish Parliament which in the Commission’s assessment will increase the systemic threat to the rule of law: the Law on the Supreme Court, the Law on the National Council for the Judiciary (both ‘vetoed’ on 24 July by the President of the Republic), the Law on the Ordinary Courts Organisation (signed by the President of the Republic on 25 July and awaiting publication and entry into force); and the Law on the National School of Judiciary (published and in force since 13 July). These Laws, in their current form, will structurally undermine the independence of the judiciary in Poland and have an immediate and very significant negative impact on the independent functioning of the judiciary.
In particular, the dismissal of Supreme Court judges will seriously aggravate the systemic threat to the rule of law. The Commission therefore asks the Polish authorities not to take any measure to dismiss or force the retirement of the Supreme Court judges. Should the Polish authorities take such measures, the Commission is ready to immediately activate the mechanism set out in Article 7(1)of the Treaty on European Union.
On the basis of its Rule of Law Recommendation, the Commission invites the Polish government to address the concerns outlined within one month and to inform the Commission of the steps taken.
2. Infringement procedure on the basis of EU law
The College of Commissioners also took a decision to prepare an infringement procedure for the possible breach of EU law. The College is ready to send a Letter of Formal Notice concerning the Law on the Ordinary Courts as soon as it is officially published. The Commission’s key legal concern identified in this law relates to the discrimination on the basis of gender due to the introduction of a different retirement age for female judges (60 years) and male judges (65 years). This is contrary to Article 157 Treaty on the Functioning of the European Union (TFEU) and Directive 2006/54 on gender equality in employment. In the Letter of Formal Notice, the Commission will also raise concerns that by giving the Minister of Justice the discretionary power to prolong the mandate of judges which have reached retirement age, as well as to dismiss and appoint Court Presidents, the independence of Polish courts will be undermined (see Article 19(1) of the Treaty on European Union (TEU) in combination with Article 47 of the EU Charter of Fundamental Rights).
