ORIGINAL PUBLISHED HERE :https://europeanlawblog.eu/2020/01/21/e-evidence-in-the-eu-parliament-basic-features-of-birgit-sippels-draft-report/

21 JANUARY 2020/ BY THEODORE CHRISTAKIS

Discussions on E-Evidence are heating up at the EU Parliament

Taking into consideration the significant legal challenges from the globalization of criminal evidence and considering that traditional instruments for cross-border cooperation such as Mutual Legal Assistance Treaties (MLAT) are too slow and cumbersome, the European Commission proposed, on 17 April 2018, the “E-Evidence” legislative package (E-Evidence), which aims, to streamline cooperation with service providers and supply law enforcement and judicial authorities with expeditious tools to obtain e-evidence.

Despite difficult negotiations among EU Member States, the EU Council of Ministers succeeded in adopting on December 7, 2018 its “general approach” on E-Evidence. This led to a storm of reactions by NGOs, the industry, members of the European Parliament (MEPs) and at least seven EU States, including Germany, who opposed the Council’s draft. The Netherlands, for instance, denounced the Council’s text for being adopted “too fast” and stated that it “opened the way for abuse by EU countries that lack sufficient guarantees over the rule of law and fundamental rights”. In an article published a year ago and entitled E-Evidence in a Nutshell:  Developments in 2018, Relations with the Cloud Act and the Bumpy Road Ahead I presented an overview of the major features of the Council’s draft and the principal points of contention.

The months that followed showed the significant challenges that need to be addressed before a compromise is found at the EU on E-Evidence. The Civil Liberties, Justice and Home Affairs (LIBE) Committee of the European Parliament spent most of the year 2019 in drafting seven working documents on the topic. On 8 November 2019, however, an important development took place: the LIBE Committee’s Rapporteur MEP Birgit Sippel released her draft Report on the E-Evidence draft Regulation.

Sippel’s Report constitutes a huge departure from both the Council’s general approach and from the initial Commission’s proposal. It presents… 267 amendments to the Commission’s proposal aiming to modify not only every single article in the Commission’s and the Council’s drafts, but also some important mechanisms and pillars of these drafts.

While this time the NGOs’ and the industry’s first reactions have been generally positive, Sippel’s Report has provoked a strong reaction by the Commission which led to an unusual institutional confrontation at the EU. More precisely, the Commission was accused of circulating to a selective list of stakeholders and MEPs (but not to the E-Evidence Rapporteur herself) a Non-Paper highly critical of Sippel’s Report and claiming that the amendments suggested by the Rapporteur will have a major impact on the efficiency of E-Evidence. This, in turn, led to a strong reaction by the chairman of the Parliament’s LIBE Committee, Juan Fernando López Aguilar, and Birgit Sippel herself, who wrote to Justice Commissioner Věra Jourová to complain about the Commission’s Non-Paper: “From an EU institutional point of view, such a practice by the Commission … raises serious questions as to the principle of sincere cooperation between the institutions,” their letter read. They also protested about the lack of transparency on the Commission’s side and the inclusion in the Non-Paper of factual errors about the content of Sippel’s Report. Following this, the Rapporteur also addressed a letter to her MEP colleagues intending to “clarify” the “misunderstandings” appearing in the Non-Paper and to defend the efficiency of her approach.

It is against this “electric” background that the different political groups introduced a total of 841 amendments to the E-Evidence proposal and that the first meetings between the shadows and the Rapporteur took place during the month of January. The LIBE Committee is due to vote in February or March on this legislative proposal, but it has not yet been determined whether the vote will take place on a new compromise proposal from the committee or whether there will be a vote amendment-by-amendment. A full plenary vote of the European Parliament should take place afterwards.

The objective of this paper is to present briefly some among the major features and mechanisms of Sippel’s Report. This paper is based in a much longer study that I have just published with the Cross Border Data Forum (CBDF) analyzing in detail the extent to which the legal regime proposed by the Rapporteur could strike the right balance between necessary protections and efficiency (see: “Lost in Notification ? Protective Logic as Compared to Efficiency in the European Parliament’s E-Evidence Draft Report”). The conclusion of this study is that, while there are reasons for a number of modifications and adjustments, Sippel’s Report is the product of much work and thinking and includes important ideas and mechanisms that appear useful for the future negotiations on E-Evidence. Here are some among the basic features of Sippel’s Report.

1) Two in One? Merging the Regulation and the Directive

An important structural amendment is that the Report proposes to merge the two instruments proposed by the Commission (a Regulation and a Directive) into a single one. The Rapporteur advances several arguments to justify this, including the concern that by introducing a separate Directive (which will oblige service providers to designate a legal representative in the Union) the Commission might have the hidden intention to “also use it for other future instruments. “In that regard”, argues the Rapporteur, “the proposed Directive overreaches its goal and raises serious issues with its legal basis, namely the Articles 53 and 62 TFEU” (see Sippel’s Report, at 146).

According to my information, the Commission strongly opposed the suggested suppression of the proposed Directive, considering that this would deprive the whole E-Evidence package of its added value, especially as far as third country service providers are concerned. The Commission emphasized that the legal basis for the Regulation (Art. 82(1)) TFEU cannot be used to compel service providers from third States to designate a legal representative in the Union. As a result, a different legal instrument, with a different legal basis, is necessary.

2) A Double Notification Mechanism

By far the most important change proposed by Sippel’s Report is that it introduces a meaningful notification mechanism permitting EU Member States to exercise their traditional protective functions and ensure the respect of fundamental rights on their territory.

The Report provides for notification to both the “executing State” (i.e. the State of the service provider) and the State of residence (“affected State”), when the latter is known to be different from the “issuing” and the “executing” State.

The Notification mechanism is not toothless anymore (as in the Council’s version). The executing State can object with several grounds of refusal available, including protection of human rights, privileges and immunities.

The Report is not founded in ‘absolute’ mutual trust (as the Commission’s version) but on the idea that efficiency arguments should not override the need to protect fundamental rights. It claims, nonetheless, that efficiency will not be significantly affected because the timeframe proposed by the Commission can be respected with much stronger safeguards if each actor plays its own role.

In my CBDF study I analyze in detail the two proposed notification mechanisms and I assess the extent to which each one of them could strike the right balance between necessary protections and efficiency. My basic conclusions are the following.

A) Notification to the “Affected State”: High Protections with Low Burden

First, the introduction of a notification to the “affected State” (the Member State of permanent residence of the affected person) is undoubtedly the major single improvement introduced by Sippel’s Report. Notification to the “affected State” is highly protective. It has the great merit of bringing the targeted individual back into the equation. The Member State of residence would thus be able to exercise its traditional protective functions concerning the human rights of the targeted individual. It will have much more powerful incentives to proceed to such a control than the enforcing State (where the service provider is based) which, most often, has a weak link to a criminal case. Moreover, such a notification will permit to protect the sovereign prerogatives and fundamental interests of the Member State where the data subjects reside, such as the national security of the Member State of residence (if, for instance, the targeted person is an agent of the receiving Member State), trade secrets (if the target is a business executive) or other essential interests.

It is thus clear that the notification to the affected State will greatly enhance the human rights and other protections of E-Evidence. But what about efficiency? The Commission claimed that the system would be too burdensome. In my CBDF paper I explain in detail why the Commission is wrong, subject to the condition that notification to the affected State should only concern the most intrusive for human rights forms of data, namely content and transactional data. It would, however, be an error to introduce into the notification regime subscriber or access data, as the Rapporteur seems to suggest.

Indeed, notification of the affected State, where applicable, would remain entirely inside the timeframe (10 days) proposed by the Commission and the Council. Efficiency is affected much less than commonly assumed, because in most cases (93%) the investigating/issuing authority seeks data on its own residents. In contrast to a Mutual Legal Assistance Treaty request, which requires notice to a different country in 100 % of cases, the “affected state” provision would thus apply in less than 7% of cases. On the basis of the existing data, it seems reasonable to believe that the 20 smallest EU Member States would be notified as “affected State” no more than a few dozen times per year. The burden should thus be low and manageable for them. If one considers than during the year 2018 Facebook received and examined a total of 53,841 data requests, followed by 47,011 for Google, 43,480 for Apple and 22,919 for Microsoft (see here, at 12), it would be an insult to countries like Sweden or Austria to argue that they would be unable to examine a few dozen notifications per year in order to protect as “affected” States the human rights of their populations and their sovereign interests.

In my CBDF paper I also advance a series of arguments in order to rebut the Commission’s argument that “notification to the affected State will go far beyond what exists under current mutual recognition and legal assistance instruments”. In my view, the introduction in the E-Evidence package of the concept of the “affected State”, as Sippel suggests, will permit to “adapt” in an appropriate way in the digital world protections that already existed traditionally “in the physical world” under MLA systems. As a conclusion, while the burden for affected States should be low and the “protecting human rights/sovereign interests benefit” for them and their populations should be high, law enforcement people involved in the e-evidence negotiations do not always seem to realize the importance of this mechanism and do not necessarily declare themselves willing to ensure this “responsibility to protect” function envisioned for them by Sippel.

B) Notification to the “Executing State”: More Challenging but Could Become Feasible

Things are more challenging concerning the mechanism of notification to the executing State also put forward in Sippel’s Report.

While notification to the “affected State” (if the State of residence of the person whose data is sought is other than the issuing State) makes real sense for the reasons explained above, notification to the executing State seems less compelling. Imagine a crime committed in France. The victim is French, the suspect is a French person and resident. What is the point of obliging France to notify Ireland only because the service provider of the suspect is established in Ireland or has his legal representative there?

Despite the lesser relevance of notification to the executing State, whose link to a criminal case is often very weak, it seems that this idea is strongly imprinted in the mind of different stakeholders.

In Sippel’s Report there is no doubt that notification to the executing State, combined with notification to the “affected State”, offers important additional protections and guarantees. Among other things, such a notification permits to deal with a number of issues such as conflicts of laws concerns or rule of law problems in the issuing State – especially taking into consideration that 93% of all criminal investigations have an entirely “domestic” character and there will thus be no notification to an “affected State” for them. In Sippel’s mind, the involvement of the executing State is absolutely necessary not only in order to resolve such rule of law problems but also in order to give a solid legal basis to E-Evidence (Art. 82 TFEU, based on the notion of cooperation between two judicial authorities). She introduces the concept of the “executing” State (instead of “enforcing” State in the Commission’s draft) which will be automatically involved in all European Production Orders (EPOs) thanks to this system of notification and which will be considered as having recognized automatically the EPO Certificate unless if it raises a ground for refusal.

As I explain in my CBDF paper, there is a strong protective logic behind Sippel’s proposal, but the system, as it was introduced, would undoubtedly create a huge burden for the executing State and might make the future instrument unattractive to law enforcement authorities (LEAs). It seems to me that the only way to make this notification less burdensome would be not only to introduce some necessary amendments exposed in my CBDF paper but also to implement this system on the basis of the understanding that the executing authorities will not need to systematically examine each EPO but will only need to take action in some exceptional circumstances. The whole idea would thus be that there will be a “guardian of the Temple” in case of trouble, but this guardian will not need to check and clear all persons entering the Temple.

3) Enhanced Human Rights Protections

Numbers are not always relevant, but it is interesting to note that Sippel’s Report mentions Human Rights 31 times – up from 17 in the Council’s draft.

The meaningful notification system, explained above, is presented as the major step forward to allow that the rights of affected persons are guaranteed by the executing State and, where applicable, the affected State. Others pro-human rights amendments include:

• Notice-by-default for persons targeted by orders issued under the Regulation (unless there is a non-disclosure order validated by a court to avoid jeopardizing the specified investigation – see amendment 164). This is in contrast with the downgrade operated by the Council and the lacuna in the Commission’s draft discussed here. It is interesting to note that the non-disclosure Court order is directly influenced by the US system of gag orders.
• A rejection of the new data categories introduced by the Commission (“access” and “transactional” data) and return to what is presented (see Report at 147) as “clear data categories (based on existing EU and national legislation and in line with CJEU case law)”, namely: “subscriber”, “traffic” and “content” data. The Commission, however, insisted that its proposed new category of “access data” (as opposed to traffic or transactional data) is extremely important in order to enable LEAs to identify the subscriber of a service at the early stages of the investigation – and should thus not be deleted as suggested by the Rapporteur.
• Due regard for issues such as respect of ne bis in idem principle, dual criminality considerations, privileges and immunities, including protections for medical and legal professions, freedom of press and freedom of expression.
• Limitations to the use of data obtained, including rules on (in)admissibility of evidence & erasure of data obtained in breach of Regulation.
• Much greater concern for effective legal remedies not only in the issuing but also in the executing State in accordance with national law, including the possibility to challenge the legality of the order.

4) A More Appropriate Role for Service Providers

The Report proposes a more appropriate role for service providers. The logic is that the responsibility of protecting human rights should not be shifted from States to service providers, but recognizes that the latter may be able to provide critical information relevant to the assessment of the necessity and proportionality of orders as long as they are not solely responsible for this process.

While logically providing for sanctions if service providers do not cooperate, the Report abandons the hugely punitive sanctions of the Council (“2% yearly turnover”) which could have a chilling effect on providers’ incentive to challenge abusive orders.

The Report also introduces an immunity from liability provision for service providers for any consequences resulting from compliance with an EPO, subject to other data protection obligations.

The Report seems to partially resolve a concern raised by service providers, academics and others, regarding when an EPO should be used instead of domestic procedures. Both the Commission and Council’s approaches created uncertainty and raised the possibility that Member States could resort to the use of domestic measures, potentially in cross-border scenarios, but Sippel’s Report seems to clarify that Union measures should always be used in cross-border scenarios. Service providers have expressed concern that, without clarifying language, the Commission and Council’s approach would have created a backdoor, allowing Member States the opportunity to simply ignore the E-evidence legislation altogether and use domestic measures which could lead to fragmentation and conflicts of law. Sippel’s amendment 83 would delete language preserving use of a domestic backdoor (“without prejudice to the powers of national authorities to compel service providers established or represented on their territory to comply with similar national measures”). However, there is no affirmative requirement that would require Member States to use the E-Evidence mechanisms over national measures in cross-border cases.

5) Other Features

At least four other important features of Sippel’s Report need to be mentioned:

• Conflict of laws -– On conflict of laws, interestingly, the Report does not go back to the elaborated mechanism proposed by Commission and abandoned by the Council (explained here) but provides for a reasonable mechanism based on the appreciation of both the issuing and the executing State’s authorities.
• A higher threshold for issuing production orders – Sippel’s report provides that European Production Orders requiring production of content or “traffic” data (which includes the “access” data category introduced by the Commission) “may only be issued for criminal offences punishable in the issuing State by a custodial sentence of a maximum of at least 5 years”. This is 2 years more than the threshold in the Commission’s and Council’s drafts (“3 years”) and means that, for these categories of data, EPOs can only be issued for the most serious crimes. It would be surprising if LEAs around Europe accepted such a high threshold.
• Extension of timeline for application of the Regulation – Sippel’s Report extends the timeline for application of the draft Regulation from six months after its entry into force (provided in the Commission’s proposal) to three years. This means that, in the best case, E-Evidence will not be applicable until the end of 2023. While it makes a lot of sense to provide for the necessary time in order to implement a new and complex system as E-Evidence (the Council itself proposed a deadline of 24 months in its general approach), three years might appear too long for law enforcement people. This, in turn, raises the risks that some Member States might enact in the meantime national laws to enable access of their LEAs to e-evidence (through extraterritorial or data-localisation measures) leading to fragmentation and unwelcome complications.
• “Independent” Prosecutors – The Report proposes to systematically replace the term “prosecutor” in the draft Regulation by the term “independent prosecutor”, defined as not be “exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in connection with the adoption of a decision”. This was done in order to reflect recent CJEU case law (see eg Minister for Justice and Equality v OG and PI, discussed in this Blog here). This means, in practice, that prosecutors that have been found by the CJEU not to respond to these “independent” requirements (such as German prosecutors) would not be able under the draft E-Evidence Regulation to request the production of subscriber data and the preservation of data. This would be a limitation to what these prosecutors can already do under domestic law. It would thus be surprising if LEAs all over Europe accepted such limitation. More generally, it should be important to think if CJEU (or European Court of Human Rights) judgments adopted under different circumstances are automatically transposable to other situations. The above-mentioned CJEU cases concerned the sensitive issue of which bodies are “issuing judicial authorities” capable of issuing European Arrest Warrants with a view to the arrest and surrender, by another Member State, of a requested person. One could argue that the particularly high threshold of independence of prosecutors required by the CJEU when the very right to liberty is at stake, should not necessarily be transposed automatically to the E-Evidence context, in relation with the bodies authorized to issue requests for the production of subscriber data and the preservation of data which are less intrusive measures for human rights than the ones envisioned by the original judgment.

Conclusion

Sippel’s version of E-Evidence is far more protective for human rights than the Commission’s or the Council’s drafts. Thanks to this protective approach Sippel succeeded in making the “paradigm shift” introduced by E-Evidence acceptable to fundamental rights experts (and likely very hard to challenge tomorrow in European courts).  NGOs and other stakeholders who were firmly opposed to E-Evidence, pleading instead for an improvement of MLA mechanisms (such as the European Investigation Order), suddenly seem to consider that E-Evidence could be compatible with strong human rights protections. “Has Sippel MEP been successful at repairing the unrepairable?”, asks for instance EDRi.

There is also little doubt about the fact that Sippel’s version of E-Evidence is much better for service providers than the Council’s or the Commission’s drafts. Sippel’s report provides a workable regime for service providers and legal certainty while relieving them from liability issues. Without transforming them to legal assessors of fundamental rights (as the Commission did), Sippel’s system gives the possibility to service providers to protect their customers and users and to flag eventual problems to States who remain, nonetheless, the traditional guardians of human rights. When the Council of the EU adopted its draft, the Business Software Alliance denounced a “disappointing text” that “risks undermining the protection of citizens and enterprise data across Europe”. In contrast, the BSA “welcomed” the European Parliament’s E-Evidence draft report, considering that it “introduces much clearer liability rules for companies complying with the Regulation, strengthens the fundamental rights protections of EU citizens, and ensures that cooperation between law enforcement agencies and technology providers is fostered and balanced”. Similarly, a recent joint industry/NGOs statement offered strong support to Sippel’s Report.

If Sippel’s Report is “good for human rights” and “good for service providers”, the big question is whether it might also become acceptable for law enforcement authorities. The double notification mechanism introduced by Sippel does not affect the timeframes proposed initially by the Commission and the Council for the production of data (10 days in normal situations, 6 hours – extended to 24h by Sippel – in cases of emergency). These notification mechanisms create nonetheless a bureaucratic burden and additional responsibilities for the issuing State, the executing State and the affected State. Some modifications and adjustments will be necessary in order to make this system less burdensome for the States concerned, and especially for the executing State. Still, it remains to be seen if these States will accept to play the “responsibility to protect” role envisioned for them by Sippel.

The author will like to thank all the persons who contributed comments to a previous draft of this article, and especially Karine Bannelier, Vanessa Franssen, Ken Propp and Peter Swire. The views expressed in this article are entirely the author’s.

ORIGINAL PUBLISHED ON VERFASSUNGSBLOG
(17 Jan 2019)

By Laurent Pech, and Patryk Wachowiec

…. 4. One missed opportunity: The ECJ ruling of 25 July 2018 concerning the European Arrest Warrant 

The knock-on effects of the deteriorating situation in Poland became notably visible when an Irish High Court judge decided to delay the extradition of a man to Poland over concerns about the rule of law there pending a preliminary reference request sent to the ECJ.

This was followed by a vicious press campaign against the Irish judge, with Mr Marcin Warchoł, Poland’s Deputy Justice Minister (and Poland’s member of the Venice Commission, no less…) deeming it appropriate to question the professionalism and integrity of the Irish High Court judge by claiming that she did not know relevant rules or case law and that her analysis was inter alia ignorant, lacked common sense but also partial and biased. In addition, the Deputy Justice Minister did not see any problem with violating the principle of the presumption of innocence by publicly stating that the Irish High Court was “delaying the punishment of a serious drug mafia criminal”. As regards Justice Donnelly’s right to seek clarification from the ECJ, Mr Warchoł said: “such requests should be unbiased. It is regrettable your court is delaying this punishment completely on biased arguments”. 

In its judgment of 25 July 2018 (LM, C-216/18 PPU), the ECJ established a new two-step rule of law test based on one it developed regarding potential exceptions for surrender on the basis of the prohibition of inhuman or degrading treatment (Article 4 of the Charter). This new test stated that (i) when confronted with the claim that a European Arrest Warrant (hereinafter: EAW) request must not be granted due to systemic or generalised deficiencies liable to affect the independence of the judiciary in the issuing Member State, the executing judicial authority (Irish High Court in the present case), must, as a first step, “assess whether there is a real risk that the individual concerned will suffer a breach” of his fundamental right to an independent tribunal/to a fair trial “when it is called upon to decide on his surrender to the authorities of the issuing Member State”; and (ii) “that authority must, as a second step, assess specifically and precisely whether, in the particular circumstances of the case, there are substantial grounds for believing that, following his surrender to the issuing Member State, the requested person will run that risk”. 

This important ruling has been widely commented in particular by many eminent scholars on this blog. To put it briefly here, we view this ruling by the ECJ as a missed opportunity and certainly not as a breakthrough. Despite overwhelming and damning evidence of a growing systemic threat to the rule of law in Poland, the Court, rather than offering a systemic answer, opted for an individualised test requiring a case-by-case assessment. In doing so, we submit the ECJ ignored or refused to accept reality: in a situation of systemic attacks targeting the whole judicial system, there is, by definition, already a “real risk” of a breach of the fundamental rights to an independent tribunal and to a fair trial in every single case. One may view as particularly unworkable any requirement imposing on a national court acting as executing judicial authority the need to examine the extent to which systemic attacks on the rule of law are liable to have an impact at the level of the courts with jurisdiction over the requested person’s case. We are sorry to say that we also find absurd to demand that such a national court request from the issuing judicial authority any information that it considers necessary for assessing whether there is such a risk. This is akin to asking a potentially compromised court to confirm that it is not (or not yet) compromised in a context where judges can be subject to kangaroo disciplinary proceedings just for daring sending questions to the ECJ under Article 267 TFEU (see section 6 for more details). 

In essence, the ECJ has created a test which we find impossible to apply in practice and disconnected from the reality of a judicial system which is in the process of being entirely captured by the executive.

Anxious to preserve the principles of mutual trust and mutual recognition while simultaneously affirming the cardinal importance of the principles of the rule of law and judicial independence in the EU and in particular in Poland, the ECJ has devised a test which has the potential of undermining them all. The refusal to hold that the EAW mechanism cannot be suspended in respect of a Member State outside of a unanimous determination by the European Council, pursuant to Article 7(2) TEU, that this Member State has breached Article 2 TEU, is not merely dangerous, it is also flawed.

Why? Because it reflects a failure to read a piece of EU secondary legislation in light of the EU primary law as it stands on the day of the ruling while justifying this failure on the back of an out-of-date, non-binding recital which merely does not take into account current Article 7(1) merely because it was not yet in force when the Framework Decision on the EAW was adopted! Last but not least, it means that even in a situation where judicial independence would have been totally annihilated, a case-by-case assessment would still be required unless – something which is simply politically unimaginable when you have more than one “rogue state” in the EU – unanimity in the European Council had been previously reached.  

Be that as it may, we now have several concrete examples of national courts struggling when it comes to implementing the ECJ’s “Celmer test”. Wouter van Ballegooij and Petra Bárd spoke of Herculean hurdles in a post published last July. Recent examples have proved them right. 

Just to give a single example, a Dutch court recently held that 11 surrender cases must be stayed and more questions sent to the relevant Polish issuing judicial authorities, as the initial answers provided by Polish courts did not adequately answer its concerns regarding the independence of the judiciary. This is not however the first time we saw a non-Polish court sending a second set of questions to Polish courts. Indeed, last September, we saw senior Polish judges openly disagreeing “with each other in letters sent to the High Court in Dublin about the independence of the Polish judiciary”, with the one judge finding no problem with a court president appointed on the basis of an arguably unconstitutional law which was referenced as a source of concern by the Commission in its Article 7(1) TEU proposal…  

We remain deeply sceptical of the ECJ’s test as it is difficult to see how a national court, no matter how many and well thought questions it is able to produce and send under the preliminary reference procedure to the ECJ, may ever be able to gather sufficient evidence to meet the ECJ’s threshold laid down in the second prong of its EAW rule of law test, i.e., to specifically and precisely prove, in the particular circumstances of each relevant case that there are substantial grounds for believing that, following the surrender to the issuing Member State, the requested person will run a real risk of a breach of his fundamental right to an independent tribunal. For instance, the Irish High Court found that the ECJ test cannot be met even in a situation where a Deputy Justice Minister is recorded to have publicly described the subject of the EAW as a dangerous criminal (presumption of innocence, anyone?). More generally speaking, how on earth can one receive a fair trial in a system without effective constitutional review; without an independent National Council for the Judiciary (the Polish KRS was suspended from the European Networks of Councils for the Judiciary for its lack of independence); but with a supreme court which now arguably includes unlawfully appointed judges, and where each judge in Poland potentially faces the threat at any point in time of kangaroo disciplinary proceedings (see below section 6).

In a recent and potentially significant development, the Irish High Court has asked Ireland’s highest judicial body to clarify whether systemic and generalised deficiencies in the independence of the relevant national judiciary are “sufficient, on their own [our emphasis] and in the absence of evidence of deficiencies in other safeguards for a fair trial, to establish substantial grounds that there is a real risk of a breach of the essence of the requested person’s right to a fair trial”. This is a question, however, which can only be authoritatively answered by the ECJ and one would therefore expect the Irish Supreme Court to refer this point to Luxembourg, providing the ECJ the needed impetus to fine-tune its test.

5. Several pending preliminary reference cases 

Following the activation of Article 7(1) TEU, a number of Polish courts, including the Supreme Court and the Supreme Administrative Court, have submitted numerous references to the ECJ on the basis of the preliminary ruling procedure laid down in Article 267 TFEU. 

In August 2018, the Supreme Court sent several questions regarding the forced retirement of its judges and the power to suspend domestic law regarding the independence of the judiciary. The ECJ has since agreed to expedite the case in light of the importance of the issues raised, the “serious uncertainties” the disputed national provisions have created with respect to “functioning of the referring court as highest national court” as well as Article 267 TFEU, “the keystone of the EU judicial system” and one which could not function without independent national courts according to the ECJ (see order adopted on 26 September 2018 in Case C-522/18). 

Broadly similar questions than the ones submitted in Case C-522/18 have been subsequently referred by the Polish Supreme Court last October in Case C-668/18 and similarly, the ECJ has agreed to expedite the procedure in this case on 11 December 2018 for the same reasons given previously in the order issued in Case C-522/18. 

Other preliminary reference proceedings initiated by the Supreme Court concern the disciplinary regime put in place on the back of the so-called “judicial reforms”, and in particular the new disciplinary chamber, with the question of whether it may be considered a “court” within the meaning of EU law one of the issues raised. It is worth recalling in this respect that in its fourth rule of law recommendation of 20 December 2017, the Commission underlined that Poland’s new disciplinary regime raises a number of concerns in particular related to the autonomy of the new disciplinary chamber in the Supreme Court; the removal of a set of procedural guarantees in disciplinary proceedings conducted against ordinary courts and Supreme Court judges; and the influence of President of the Republic and the Minister of Justice on the disciplinary officers. 

To summarise where we are, in addition to Case C-522/18 and Case C-668/18 mentioned above, an additional seven preliminary ruling requests are now pending before the ECJ (it is not easy to keep track): 

• Cases C-558/18 and C-563/18 (these two cases have been joined with the expedited procedure requests submitted by the referring courts however rejected by the ECJ on 1 October 2018); 
• Cases C-585/18, C-624/18, C-625/18 (these three requests have been joined and expedited procedure granted by the ECJ on 26 November 2018); 
• Case C-623/18 (lodged on 3 October 2018);
• Case C-824/18 (lodged on 28 December 2018). 

To the best of our knowledge, kangaroo disciplinary proceedings have since been initiated against the judges at the origin of Case C-588/18; Case C-563/18; and Case C-623/18 (see section 6 below). 

The tactical retreat operated by Polish authorities following the ECJ interim order regarding their attempted purge the Supreme Court also means that it is unclear whether the questions submitted in Case C-522/18 and Case C-668/18 still ought to be answered by the ECJ. According to what was recently reported in the Polish media, the Polish government has requested that the two cases be dismissed in light of the latest amendments to the Law on the Supreme Court. The Supreme Court must now explain to the ECJ before the end of the month why a preliminary ruling from the ECJ is still necessary to enable it to give a judgment in these two cases. 

In any event, it is worth noting that in addition to the issue of the Supreme Court’s new disciplinary chamber, some of these pending cases raise the issue of the composition and appointment procedure of the ENCJ-suspended KRS, by asking the ECJ that it interprets whether Article 19(1) TEU and Article 47 CFR preclude a body such as the KRS which the Commission has recently described as follows in a document submitted to the Council before the third hearing organised under Article 7(1) TEU last December: 

The new election regime of the judges-members of the National Council does not comply with European standards requiring that judges-members of Councils for the Judiciary are elected by their peers. No changes have been introduced in that respect. No remedy is foreseen to address the premature termination of the four-year mandates of the former judges-members of the National Council for the Judiciary. The conditions under which the Sejm elected the new judges-members, and the first meeting of the National Council for the Judiciary illustrate its politicisation and lack of legitimacy.

If you are not yet alarmed by the above and the sheer number of preliminary ruling requests originating from Polish courts raising the issue of attacks on their independence in the past few months, the section below should hopefully convince you that it time to raise the alarm and for national governments, parliaments and courts from other EU countries to step up to the plate. 

6. Latest insidious developments 

In a nutshell, Polish authorities are now seeking to finalise their capture of the judicial branch and prevent any further involvement of the ECJ via the systemic – formal or otherwise – bullying and intimidation of any judge refusing to toe the party line and the support of the captured Constitutional Tribunal. With respect to the former, to quote the European Commission again (document dated 11 December 2018, on file with the authors), 

disciplinary officers appointed by the Minister of Justice continue to initiate preliminary disciplinary investigations against judges who participated in public debates or provided public statements about the ongoing reforms. Preliminary disciplinary investigations concern also judges who referred requests for preliminary ruling to the Court of Justice. In addition, disciplinary officers appointed by the Minister of Justice exercised their power to take over investigations carried out by disciplinary officers appointed at request of the judiciary, including in cases where the judges concerned were found by the latter not to have committed any disciplinary offence 

The goal here is quite obvious: due to the increasing number of referrals to the ECJ, the ruling majority and bodies captured by it are seeking to send a (chilling) message to all Polish judges by retaliating against those who dare to involve the ECJ. Such state-sponsored bullying of judges making use of Article 267 is proving to be a blueprint attractive to other ‘quasi-authoritarian’ Member States/ ‘rogue state’ and already seems to have spread to Bulgaria. 

A particularly absurd example is the situation of the judge who is now subject to kangaroo disciplinary proceedings for asking the ECJ (Case C-558/18) about the compatibility of Poland’s new system of disciplinary system with EU law. Unbelievably, this judge was then summoned by the disciplinary officer under the control of the Minister of Justice for potential abuse of the Article 267 procedure… 

Pursuant to … You are hereby invited to submit within 14 days from the date of delivery of this letter, a written statement regarding the possible judicial excess [our emphasis] which resulted in the District Court in Łódź’s request for a preliminary ruling against [our emphasis] the requirements laid down in Article 267 [TFEU] (translated excerpt from the summons sent on 29 November 2018 to Judge Ewa Maciejewska by the deputy disciplinary commissioner) 

As noted by the Polish Association of Judges Themis, “by instituting disciplinary proceedings against [two] judges, the Deputy Commissioner, almost certainly unintentionally, confirmed the argument contained in Judge Igor Tuleya’s question requesting a preliminary ruling [Case C-563/18] that the new disciplinary procedure has been politicized to such an extent that it can serve the purpose of exerting unacceptable pressure on judges”. (An additional recent example of disciplinary proceedings targeting the judge at the origin of Case C-623/18 is here).  

While these disciplinary proceedings have yet to conclude (to keep up to date: see this website), their “chilling effect” is obvious and so is the intent of the Polish government: to bully if not scare judges into submission since there is no one left to defend them, the ruling party having de facto captured the Supreme Court’s new disciplinary chamber… 

Not to be undone by these scandalous proceedings and this frontal attack against Article 267 TFEU, “the keystone of the EU judicial system” according to the ECJ itself, the Prosecutor General/Minister of Justice has submitted last October a request to the pseudo Constitutional Tribunal. In a nutshell, the PG/MoJ is asking it to assess whether Article 267 TFEU is in line with the Polish constitution (you know, the document Polish authorities are complying with only when convenient), the key claim being that “issues relating to the system, form and organization of the judiciary, as well as judicial procedures, have not been transferred to the EU in the Accession Treaty”. Should the “Constitutional Tribunal” happily oblige (and refuse to refer the case to the ECJ prior to issuing judgment), this would be a direct challenge to the primacy of EU law, its uniform application, and the rule of law as a foundational value of the EU as we have never seen before. Should such a ruling materialise, we would then expect the Commission to immediately initiate yet another infringement action building on Case C-416/17. 

Last but not least, a new developing frontline must be paid attention to. The new KRS – well known and widely mocked for its recent interpretation of the judicial ethics code according to which judges cannot wear “Constitution” t-shirts – has also brought its own case to the so-called “Constitutional Tribunal”. On its own motion, the (captured) Polish National Council of the Judiciary has requested that the (captured) Constitutional Tribunal finds its composition compatible with the Polish Constitution. Although it is up to the body which refers the case to the “Constitutional Tribunal” to show that a disputed law is unconstitutional, it clearly seems that the new KRS is not bothered with what it must view as only legal niceties and is essentially urging the “Constitutional Tribunal” to rubber-stamp its politicisation. Be that at it may, we are looking at the staggering possibility that a captured body will come to the rescue of another captured body so as offer the ENCJ-suspended KRS some ammunition in case of any adverse ruling from the ECJ or its eventual exclusion from the ENCJ. 

7. Diagnosis and way forward 

To put it concisely, the situation of a systemic threat to the rule of law in Poland, which led the Commission to finally and rightly activate Article 7(1) TEU more than a year ago, has deteriorated further to the point of threatening the functioning of the whole EU legal order and therefore, the future of the EU’s internal market itself. This means that the ongoing Article 7(1) TEU procedure must continue. It is however time for the Commission to accept that stand-alone dialogue, still presented as its “preferred channel for resolving the systemic threat to the rule of law in Poland”, will lead nowhere when dealing with would-be autocrats acting in bad faith. The Commission should therefore launch accelerated infringement proceedings regarding every single issue mentioned in its Article 7(1) reasoned proposal not yet covered by any of the pending infringement or preliminary reference actions. 

Should the Commission fail to do so, it is time for national governments which take the rule of law seriously and are keen to protect the EU’s internal market, to rediscover Article 259 TFEU and bring their own infringement actions against Poland. They should also seek to systemically intervene in every single ECJ action where the systemic threat to the rule of law in Poland is the key issue. 

As for the Council, our key recommendation would be for it to ensure full transparency of Article 7 proceedings by systematically publishing any connected document it produces or receives from the EU Commission and national governments. 

National courts have also a role to play. We would want to see as many of them refer as many preliminary requests as possible to the ECJ should they be faced with cases which, directly or indirectly, raise issues relating to the rule of law situation in Poland, if only to prevent a situation where the ECJ is unable to issue rulings because the Commission has withdrawn its infringement actions and/or the Polish authorities have been able to “kill off” all requests via formal and informal means. 

Last but not least, the ENCJ ought to face reality and accept that the KRS cannot be saved and ought to therefore exclude it considering the disgraceful actions and behaviour of its members since it was suspended last September. 

Enough is enough.