Systemic threat to rule of law in Poland, says EC

(BRUSSELS) - There is a 'systemic threat' to the rule of law in Poland, the European Commission said as it sent the country recommendations over the independence of the country's judiciary.

The "Rule of Law Recommendation" on the situation in Poland, which the EU executive adopted Wednesday following "intensive dialogue with the Polish authorities", sets out its concerns around the functioning of the Constitutional Tribunal.

It makes specific recommendations on how these concerns could be addressed.

The Commission says the fact that the Constitutional Tribunal was prevented from fully ensuring an effective constitutional review adversely affects its integrity, stability and proper functioning - one of the essential safeguards of the rule of law in Poland.

Where a constitutional justice system was established, its effectiveness is a key component of the rule of law, it adds.

Dialogue has been ongoing with the Polish authorities since 13 January. Following adoption of an Opinion on the situation in Poland on 1 June, the Polish Parliament adopted a new Law on the Constitutional Tribunal on 22 July.

The Commission concludes that after its assessment that even if certain of its concerns have been addressed by that law, important concerns regarding the rule of law in Poland remain.

The Commission is therefore laying out concrete recommendations to the Polish authorities on how to address these concerns.

EC First Vice-President Frans Timmermans said: "Despite the dialogue pursued with the Polish authorities since the beginning of the year, the Commission considers the main issues which threaten the rule of law in Poland have not been resolved. We are therefore now making concrete recommendations to the Polish authorities on how to address the concerns so that the Constitutional Tribunal of Poland can carry out its mandate to deliver effective constitutional review."

The Commission recommends in particular that Poland:

• respects and fully implements the judgments of the Constitutional Tribunal of 3 and 9 December 2015. These require that the three judges that were lawfully nominated in October 2015 by the previous legislature can take up their function of judge in the Constitutional Tribunal, and that the three judges nominated by the new legislature without a valid legal basis do not take up the post of judge without being validly elected;
• publishes and implements fully the judgment of 9 March 2016 of the Constitutional Tribunal, as well as all subsequent judgments, and ensures that the publication of future judgements is automatic and does not depend on any decision of the executive or legislative powers ;
• ensures that any reform of the Law on the Constitutional Tribunal respects the judgments of the Constitutional Tribunal, including the judgments of 3 and 9 December 2015 and the judgment of 9 March 2016, and 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 by new requirements, whether separately or through their combined effect;
• ensures that the Constitutional Tribunal can review the compatibility of the new law adopted on 22 July 2016 on the Constitutional Tribunal before its entry into force and publish and implement fully the judgment of the Tribunal in that respect.

While the Commission says it remains ready to pursue a constructive dialogue with the Polish Government. If there is no satisfactory follow-up within the time limit set, resort can be had to the 'Article 7 Procedure'.

Commission Recommendation regarding the Rule of Law in Poland