by Paolo Gambatesa (FREE Group Trainee)
Section I – about facts and EU reaction under Article 7 TEU perspective
- On 8 October 2015, ahead of the general elections for the Sejm (lower chamber of the Polish Parliament) of 25 October 2015, the outgoing legislature nominated five persons to be ‘appointed’ as judges by the President of the Republic in accordance of Article 194 of the Polish Constitution. Three judges would take seats vacated during the mandate of the outgoing legislature while two judges would take seats vacated during that of the incoming legislature which commenced on 12 November.
- On 19 November 2015, the new legislature, through an accelerated procedure, amended the Law on the Constitutional Tribunal, introducing the possibility to annul the judicial nominations made by the previous legislature and to nominate five new judges. The amendment also shortened the terms of office of the President and Vice-President of the Tribunal from nine to three years, with the current terms coming to an automatic end within three months of the amendment’s adoption.
- On 25 November 2015, the new legislature annulled the five nominations by the previous legislature and on 2 December nominated five new judges.
- The Constitutional Tribunal was seized concerning the decisions of both the previous legislature and the incoming legislature. The Tribunal delivered two judgements, on 3 and 9 December 2015.
- On 3 December, the Court ruled (K 34/15) that the previous legislature was entitled to nominate only three judges for seats vacated during its mandate, but was not entitled to make the two nominations for seats vacated during the term of the new legislature.
- On 9 December, the Court ruled (K 35/15) that the new legislature was not entitled to annul the nominations for the three appointments under the previous legislature, but that it was entitled to appoint the two judges whose mandate began under the incoming legislature.
- The consequence of the judgements is that the President of the Republic is obliged to “appoint” (i.e. take the oath of) the three judges nominated by the previous legislature. However, the President of the Republic has in the meantime taken the oath of all five judges nominated by the new legislature. The judgments of the Constitutional Tribunal have thus not been implemented, and the correct composition of the Tribunal remains disputed between the institutions of the State.
- On 22 December 2015, the legislature adopted new rules on the functioning of the Constitutional Tribunal, which, among other things, render more difficult the conditions under which the Tribunal may review the constitutionality of newly passed laws, i.a. by increasing the number of judges hearing cases, and by raising the majorities needed in the Tribunal to hand down judgements (in full configuration, judgements shall be adopted by a majority of two-thirds of the votes, instead of by simple majority as under the former rules). [in-depth analysis about all events see The Constitutional crisis in Poland 2015-2016]
- On 23 December 2015, First Vice-President Timmermans wrote to the Polish Government to request further information regarding the current situation of the Constitutional Tribunal. Timmermans also recommended that the Polish Government consult the Venice Commission before enacting the proposed changes to the Law on the Constitutional Tribunal. The Polish Government requested a legal assessment from the Venice Commission on 23 December, but has proceeded with the conclusion of the legislative process before receiving the Venice Commission’s opinion, which will be issued on 11 March 2016.
- On 30 December 2015, Moreover the Polish Senate adopted the “small media law” concerning the management and supervisory boards of the Polish public television broadcaster (TVP) and public radio broadcaster (PR). The new law appears to modify the rules for the appointment of the Management and Supervisory Boards of the public service broadcasters, putting them under the control of the Treasury Minister, rather than an independent body. The new law also provided for the immediate dismissal of the existing Supervisory and Management Boards. [in-depth analysis see Poland: Independence of public service media]
- On 13 January 2016, the Commission launched a dialogue with the Polish authorities in order to seek solutions to its concerns regarding the Constitutional Tribunal. More specifically, this represents the first stage of “pre-Article 7 procedure” which was described by the European Commission in a new Framework for addressing systemic threats to the Rule of Law in any of the EU’s 28 Member States, adopted on 11 March 2014. The purpose of the framework is to enable the Commission to find a solution with the Member State concerned in order to prevent the emerging of a systemic threat to the rule of law that could develop into a “clear risk of a serious breach” which would potentially trigger the use of Article 7 TEU. The process has three stages: I) Commission assessment; II) Commission Recommendation; III) Follow-up to the Commission Recommendation.
- Between February 2016 and July 2016, the Commission and the Polish Government exchanged a number of letters and met on several occasions.
- On 9 March 2016, the Constitutional Tribunal ruled that the law adopted on 22 December 2015 was unconstitutional. That judgment has so far not been published by the Government in the Official Journal, with the consequence that it does not have legal effect. The Government officially justifies its decision by claiming that the Tribunal should have delivered the judgement in the legally prescribed quorum, as provided by the law which was declared unconstitutional. However, in the Constitutional Tribunal there were only 12 lawfully appointed judges, and three remaining judges appointed by the Sejm in October 2015 were awaiting to be sworn in by the President of the Republic.
- On 13 April 2016, the European Parliament voted for a Resolution urging the Polish Government to respect, publish and fully implement the judgments of the Constitutional Tribunal.
- On 1 June 2016, in the absence of solutions from the Polish authorities, the Commission formalised its concerns by sending a Rule of Law Opinion to the Polish Government.
- On 22 July 2016, the Sejm adopted a new law on the Constitutional Tribunal which was published in the Official Journal on 1 August 2016.
- On 27 July 2016, after further exchanges were unable to resolve the Commission’s concerns, the Commission adopted a Rule of Law Recommendation, finding that there was a systemic threat to the rule of law in Poland, in particular with regard the non-publication of the judgments of the Constitutional Tribunal adopted on 3 and 9 December 2015 that has rendered this judgments deprivated of any legal effect. The Commission invited the Polish authorities to address its concerns within three months, but the Polish Government informed the Commission that it disagreed on all the points raised.
- On 11 August 2016, the Constitutional Tribunal rendered a judgment (K 39/16) on the law of 22 July 2016 and declared unconstitutional some provisions of this law. The Polish Government did not recognise the validity of this judgment and did not publish it in the Official Journal.
- On 16 August 2016, the Polish Government published 21 judgments of the Tribunal rendered in a period from 6 April 2016 to 19 July 2016. However, the judgments of 9 March 2016 and of 11 August 2016 were not published by the Government.
- On 14 September 2016, the European Parliament adopted a Resolution on the situation in Poland i.a. calling on the Polish Government to cooperate with the Commission pursuant to the principle of sincere cooperation as set out in the Treaty.
- 14 October 2016, the Venice Commission adopted its opinion on the law of 22 July 2016 on the Constitutional Tribunal.
- On 31 October 2016, the United Nations Human Rights Committee expressed concerns about the negative impact of legislative reforms.
- On 1 and 2 December 2016, the Senate adopted the law of 30 November 2016 on the legal status of judges of the Constitutional Tribunal (‘law on the Status of Judges’) and the law of 30 November 2016 on organisation and proceedings before the Constitutional Tribunal (‘law on Organisation and Proceedings’).
- On 19 December 2016, the President of the Republic appointed judge Julia Przyłębska, a judge elected by the new Sejm, to the position of acting President of the Constitutional Tribunal.
- On 21 December 2016, according to the Commission important issues remained unresolved and thus it adopted a second Rule of Law Recommendation, concluding that there continued to be a systemic threat to the rule of law in Poland. The Polish Government again disagreed with the Commission’s assessment, because the Government assumed that the appointment of the new President of the Tribunal on 21 December 2016 as well as the entry into force of the three new laws governing the functioning of the Constitutional Tribunal created the proper conditions for the functioning of the Tribunal.
- On 10 January 2017, the Vice-President of the Constitutional Tribunal was obliged by the newly appointed President of the Tribunal to take his remaining leave. On 24 March 2017 the mandatory leave was prolonged until the end of June 2017, despite the request of the Vice-President to resume his work as judge in the Tribunal as of 1 April 2017.
- On 12 January 2017, the Minister of Justice launched a procedure before the Constitutional Tribunal to review the constitutionality of the election, in 2010, of three judges of the Tribunal. Following this procedure, cases have no longer been assigned to these three judges.
- On 20 January 2017, the Polish Government announced a comprehensive reform of the judiciary in Poland.
- On 16 May 2017, the Commission informed the Council on the situation in Poland, and there was broad support among Member States for the Commission’s role and efforts to address the issue. Member States called upon Poland to resume the dialogue with the Commission.
- On 5 July 2017, following the end of the mandate of the previous Vice-President of the Constitutional Tribunal, the President of the Republic appointed a new Vice-President of the Tribunal, Mr. Mariusz Muszyński, despite the fact that he was one of the three judges in the Tribunal appointed unlawfully.
- On 13 July 2017, the Commission wrote to the Polish authorities expressing its concerns about the pending legislative proposals on the reform of the judiciary, underlining the importance of refraining from adopting the proposals as they were drafted at that time, and calling for a meaningful dialogue. The Commission explicitly invited the Polish Foreign Minister and Polish Justice Minister to meet at their earliest convenience. These invitations were ignored.
- On July 2017, the Polish Parliament had adopted four judicial reform laws 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.
- On 26 July 2017, after the last judicial reform the Commission adopted a third Rule of Law Recommendation, reiterating its existing concerns about the Constitutional Tribunal and setting out in addition its grave concerns about the judicial reforms. The Commission’s Recommendation set out a list of proposed remedies, and urged the Polish authorities in particular not to take any measure to dismiss or force the retirement of Supreme Court judges.
- On 29 July 2017, the European Commission launched an infringement procedure against Poland by sending a Letter of Formal Notice in accordance to Article 258(1) TFEU, following the publication in the Polish Official Journal of the Law on the Ordinary Courts Organisation on Friday 28 July.
- On 11 September 2017, the Polish Government initiated a campaign named ‘Fair Courts’ aimed at gaining social support for the ongoing judicial reform. On the same day, the Constitutional Tribunal in a panel of five judges declared the unconstitutionality of certain provisions of the Code of Civil Procedure allowing ordinary courts and the Supreme Court to assess the legality of the appointment of the President and the Vice-President of the Tribunal.
- On 12 September 2017, the European Commission decided to send a Reasoned Opinion to Poland regarding the Polish law on the Ordinary Courts Organisation, thus the Commission brings it at the second stage of the infringement procedure started in July 2017.
- On 13 September 2017, the Minister of Justice started exercising the powers to dismiss court presidents and vice-presidents pursuant to the law on Ordinary Courts Organisation.
- On 25 September 2017, the Commission again informed the Council of the situation in Poland, and there was again broad agreement on the need for Poland to engage in a dialogue with the Commission.
- On 26 September 2017, the President of the Republic transmitted to the Sejm two new draft laws on the Supreme Court and on the National Council for the Judiciary.
- On 11 October 2017, the Parliamentary Assembly of the Council of Europe adopted a resolution on new threats to the rule of law in Council of Europe member States, expressing concerns also about developments in Poland, which put at risk respect for the rule of law, and, in particular, the independence of the judiciary and the principle of the separation of powers
- On 23 October 2017, the United Nations High Commissioner for Human Rights requested that the Polish authorities accept the United Nations recommendations on upholding judicial independence.
- On 15 November 2017, the European Parliament adopted a Resolution expressing support for the Recommendations issued by the Commission, and considering that the current situation in Poland represents a clear risk of a serious breach of the values referred to in Article 2 of the TEU.
- On 8 December 2017, the two new draft laws propsoed by the President of the Republic were adopted by the Sejm, the lower house of the Polish Parliament, after further legislative work. On the same day, the Venice Commission of the Council of Europe adopted two opinions on the judicial reforms in Poland, concluding that they enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a grave threat to judicial independence.
- On 15 December 2017, the
two laws were approved by the Polish Senate, the upper house of the Polish
parliament. In particular, the law on the Supreme Court lowers the general retirement age of
Supreme Court judges from 70 to 65. This measure applies to all judges
currently in office.
Judges who attained 65 years of age or will attain that age within 3 months from the entry into force of the law, will be retired, unless they request to the President of the Republic to prolong their active mandate. Furthermore, as regards the power of the President of the Republic there are no criteria, no time-frame for taking a decision and no judicial review provided for in the law.
- On 20 December 2017, the fourth Rule of Law Recomandation of the European Commission, it was adopted immediately before the formal activation of the procedure of the Article 7.
- On 22 December 2017, lastly the European Commission activated formally the procedure of Article 7(1) TEU through the proposal addressed to the Council for its Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law.
- On 20 March 2018, the Council (General Affair) expressed the hope that the dialogue between the Commission and the Polish authorities will bring positive results on the issue.
- On 17 April 2018, the Council (General Affair) has started the discussion about the rule of law in Poland. Ministers encouraged the Commission and the Polish authorities to continue their dialogue with a view to achieving concrete results.
- On 26 June 2018, the Council (General Affair) held the first hearing under Article 7(1) TEU on the rule of law in Poland.
- On 18 September 2018, the Council (General Affair) held the second hearing under Article 7(1) TEU on the rule of law in Poland.
- On 16 October 2018, the Council (General Affair) “reiterated the importance of upholding the rule of law in all EU member states and stressed the need to achieve tangible progress”.
- On 11 December 2018, the Council (General Affair) held the third hearing under Article 7(1) TEU on the rule of law in Poland.
Section II – At glance to pendant cases in front of the jurisdictional authorities
- The infringement procedure and the ECJ’s decision on interim relief:
The infringement procedure began when the Commission notified the Letter of Formal Notice dated 29 July 2017 has come to next stage: the judgment of the Court of Justice in order to access the violation of the rule of law with regard to 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 (legal basis: Article 19(1) TEU in combination with Article 47 of the EU Charter of Fundamental Rights). According to the Commission Polish law puts also into effect 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.
Furthermore, the Commission asked to the Court the immediate suspencion of the application of the Polish legislation relating to the retroactive lowering of the retirement age for the Supreme Court judges (legal basis: Article 279 TFEU). The requested interim relief was adopted by the ECJ Vice-President on 19 October 2018 and than it was confirmed by the ECJ President on 15 November 2018. Until now, the case on its merit has not been decided yet (Commission/Poland, C- 619/18).
- The preliminary ruling from the Polish Judges to the ECJ:
Several of preliminary ruling questions were referred by Polish judges to the ECJ, pursuant Article 267 TFEU, which concerning the most critical aspects of the Polish justice reforms, as the discrimination on grounds of age or the principles of irremovability and independence of judges.
- C- 522/18 (DŚ)
- C-537/18 (Krajowa Rada Sądownictwa)
- C-558/18 (Miasto Łowicz)
- C-563/18 (Prokuratura Okręgowa w Płocku)
- C-585/18 (Krajowa Rada Sądownictwa i in.)
- C-623/18 (Prokuratura Rejonowa w Słubicach)
- C-624/18 (CP)
- C-625/18 (DO)
- The preliminary ruling from the Polish Judges to the Polish Constitutional Tribunal:
On 23 August 2018 the Prosecutor General, who is also the Minister of the Justice referred a preliminary ruling to the Constitutional Tribunal (K 7/18) for declaring the unconstitutionality of the Article 267 TFEU “so far as it permits the national court to submit preliminary references on the interpretation of the Treaties or on the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union in matters relating to the system, form and organization of the judiciary as well as proceedings before judicial authorities of the EU Member State”. [in-depth analysis see Though this be Madness, yet there’s Method in’t: Pitting the Polish Constitutional Tribunal against the Luxembourg Court]
Section III – The consequent legisltive proposals about the protction of rule of law
- 2018/0136 (COD) “Protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States” [see also the Commission Proposal and the Text Adopted by the Plenary].
- 2018/0207(COD) “Rights and values programme 2021–2027” [see also the Commission Proposal and the Text Adopted by the Plenary].
[All informations exposed in this document were extrapolated by the Press Relese of the European Commission (https://ec.europa.eu/info/news_en?pages=36994) and by the official documents of the EU Institutions]