Frans Timmermans – Photo EC
(BRUSSELS) – Despite repeated efforts to engage with Polish authorities over judicial independence, the European Commission concluded Wednesday that there is a clear risk of a serious breach of the rule of law in Poland.
Despite the warnings, the Commission says Poland has passed laws over the last two years “which put at serious risk the independence of the judiciary and the separation of powers in Poland”. It has now proposed to the Council to adopt a decision under Article 7(1) of the Treaty on European Union.
As the country’s judiciary is now “under the political control of the ruling majority”, the EU executive says it has to take action to protect the rule of law in Europe. In the absence of judicial independence, it says serious questions are raised about the effective application of EU law, from the protection of investments to the mutual recognition of decisions in areas as diverse as child custody disputes or the execution of European Arrest Warrants.
EC vice-president Frans Timmermans said: “The common pattern of all these legislative changes is that the executive or legislative powers are now set up in such a way that the ruling majority can systematically, politically interfere with the composition, the powers, the administration and the functioning of these authorities, thereby rendering the independence of the judiciary completely moot.”
The Commission has also today issued a complementary (4th) Rule of Law Recommendation, setting out clearly the steps that the Polish authorities can take to remedy the current situation. Should the Polish authorities implement the recommended actions, the Commission adds that it is ready, in close consultation with the European Parliament and the Council, to reconsider its Reasoned Proposal.
The Commission is now taking the next step in its infringement procedure against Poland for breaches of EU law by the Law on the Ordinary Courts Organisation, and has referred Poland to the European Court of Justice.
Details
1. Reasoned Proposal for a Council Decision
Over a period of two years, the Polish authorities have adopted more than 13 laws affecting the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary. The common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.
The Reasoned Proposal sets out the Commission’s concerns, recalling the steps taken under the Rule of Law Framework and the numerous contacts with the Polish authorities to try to identify a solution, and invites the Council to find that there is a clear risk of a serious breach of the rule of law. The concerns relate specifically to the lack of an independent and legitimate constitutional review and judicial independence.
Should the Polish authorities implement the remedial actions set out in the Rule of Law Recommendation accompanying its Reasoned Proposal, the Commission is ready to reconsider the Reasoned Proposal.
2. Rule of Law Recommendation
The Rule of Law Recommendation adopted today complements three previous Recommendations, adopted on 27 July 2016, 21 December 2016 and 27 July 2017. Today’s Recommendation focuses on the fresh concerns raised by the new law on the Supreme Court adopted by the Polish Parliament on 15 December 2017 and the law on the National Council for the Judiciary adopted on 15 December 2017. The Polish authorities have still not addressed the concerns identified in the first three Commission Recommendations, which remain valid.
Today’s Recommendation clearly sets out a set of actions that need to be taken by the Polish authorities to address its concerns. The Polish authorities are invited to:
- Amend the Supreme Court law, not apply a lowered retirement age to current judges, remove the discretionary power of the President to prolong the mandate of Supreme Court judges, and remove the extraordinary appeal procedure, which includes a power to reopen final judgments taken years earlier;
- Amend the law on the National Council for the Judiciary, to not terminate the mandate of judges-members, and ensure that the new appointment regime continues to guarantee the election of judges-members by their peers;
- Amend or withdraw the law on Ordinary Courts Organisation, in particular to remove the new retirement regime for judges including the discretionary powers of the Minister of Justice to prolong the mandate of judges and to appoint and dismiss presidents of courts;
- Restore the independence and legitimacy of the Constitutional Tribunal, by ensuring that its judges, President and Vice-President are lawfully elected and by ensuring that all its judgements are published and fully implemented;
- Refrain from actions and public statements which could further undermine the legitimacy of the judiciary.
3. Infringement procedure on the basis of EU law
The College of Commissioners also decided to refer the Polish Government to the European Court of Justice for breach of EU law, concerning the Law on the Ordinary Courts and, specifically, the retirement regime it introduces.
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 of the Treaty on the Functioning of the European Union (TFEU) and Directive 2006/54 on gender equality in employment.
In its referral to the European Court of Justice, the Commission will also raise the linked concern that the independence of Polish courts will be undermined by the fact that the Minister of Justice has been given a discretionary power to prolong the mandate of judges which have reached retirement age (see Article 19(1) TEU in combination with Article 47 of the EU Charter of Fundamental Rights).
The Commission’s Recommendation invites the Polish authorities to address the problems within three months, and to inform the Commission of the steps taken to that effect. The Commission says it stands ready to pursue a constructive dialogue with the Polish Government. Should the Polish authorities implement the recommended actions, the Commission is ready, in close consultation with the European Parliament and the Council, to reconsider its Reasoned Proposal.
