1095 Days Later: From Bad to Worse Regarding the Rule of Law in Poland (Part I)

( 13 Jan 2019)

by Laurent Pech, and Patryk Wachowiec

On 13 January 2016, exactly three years ago today, the Commission activated the so-called rule of law framework for the very first time with respect to Poland. This was justified by First Vice-President Timmermans primarily with regard to the situation of the Constitutional Tribunal and the fact that some of its key binding rulings were not being respected. 

In the subtle and respectful manner that has characterised it ever since, the Polish government accused the First Vice-President of “a lack of knowledge” and advised him “to exercise more restraint” in the future “despite the ideological differences that may exist between us, with you being of a left-wing persuasion” (letter from the Minister of Justice dated 11 January 2016 on file with the authors). 

Fast forward to 13 January 2019, the rule of law situation is worse than ever. A recent tactical retreat à la Orbán notwithstanding, the modus operandi of Polish authorities has remained largely the same during this period: they repeatedly deny the obvious and hide behind specious historical-cultural and double-standards arguments while accusing “Brussels” of being an ignorant and/or dishonest broker. To quote a recent interview of Poland’s prime minister,  “..people from Brussels completely do not understand the situation in post-communist countries… Just as every country has their challenges, so we have our challenges with the judiciary that hasn’t been reformed for the last 30 years … if [the Commission wants] to be an honest broker, because I don’t feel so far that they are an honest broker … they should really take decisive positive steps to clarify all these issues they have, because now we have done so much.

As will be shown below, Polish authorities have done nothing of the sort with every single major rule of law breach committed by Polish authorities over the course of the past three years comprehensively documented, clearly explained and rightly denounced by the Commission and a plethora of major rule of law bodies, which are just too many to be listed here. As things stand today, Polish authorities’ sustained and systematic attacks on the rule of law now more than ever directly threaten the very functioning of the EU legal order. 

1. Four Rule of Law Recommendations for nothing 

The first Commission recommendation regarding the rule of law in Poland was adopted on 27 July 2016. No less than three (!) complementary recommendations followed on 21 December 201626 July 2017 and 20 December 2017

Each of these four documents contained a specific list of actions which have remained largely focused on the same issues and which can be quickly summarised as follows: 

  1. To ensure the judges, its President and its Vice-President of the Polish Constitutional Tribunal are lawfully elected and appointed so as to restore the independence and legitimacy of the Constitutional Tribunal as guarantor of the Polish Constitution; 
  2. To publish and/or fully implement a number of rulings of the Constitutional Tribunal before its ‘capture’ by the Polish ruling party in December 2016 in obvious breach of the Polish Constitution; 
  3. To ensure that the following laws are withdrawn or amended so as to ensure their compatibility with the Polish Constitutional and with basic European standards on judicial independence: the law on the Supreme Court; the law on the National Council for the Judiciary; the law on Ordinary Courts Organisation and on the National School of Judiciary;  
  4. To refrain from actions and public statements which could undermine further the legitimacy of the Supreme Court, the ordinary courts, the judges, individually or collectively, or the judiciary as a whole; 
  5. To ensure that any justice reform upholds the rule of law and complies with EU law and the European standards on judicial independence and is prepared in close cooperation with the judiciary and all interested parties

Why the lack of any results whatsoever under the Commission’s rule of law framework? As Professor Kochenov and one of the present authors predicted before it first ever activation, this instrument adopted in 2014 was bound to fail as dialogue – structured or otherwise – in any situation where “the ruling élite has made a conscious choice not to comply with EU values,” is a recipe for wasting time.  

In this situation, the framework only offers more time to authorities acting in bad faith and bent on dismantling all checks and balances to do so in relative peace with the Commission tempted to hold off on infringement actions (as it did for far too long), and other EU institutions and EU national governments all too happy to look the other way. The only positive outcome in the case of Poland is that the rule of law framework resulted in the accumulation of overwhelming, damning evidence of a deliberate attempt by Polish authorities to undermine the rule of law in order to progressively transform the country into de facto autocratic one-party state in a similar fashion to what has been done in Hungary, a country which can be considered the EU’s first consolidated “competitive authoritarian regime”.  

2. Three Article 7 hearings with no tangible results to date 

As one of us wrote on this blog in October 2016, “considering the overwhelming evidence of a deliberate governmental strategy of systematically undermining all checks and balances in Poland as well the uncooperative behaviour of Polish authorities”, the Commission ought to trigger Article 7(1) in order for national governments, meeting in the Council, “to step up to their responsibilities to isolate, if not to sanction a member state whose authorities are actively seeking to dismantle liberal democracy in their country.”

At long last, Article 7(1) was activated for the very first time on 20 December 2017 (the Commission’s reasoned proposal should not be confused with the 4th rule of law recommendation which was also adopted on the same day). 

One year later, what tangible results can we point out to? Sadly, none. 

What we have seen instead is the repetition ad nauseam by the Council (General Affairs) that dialogue is good and/or must be pursued, with three formal hearings organised to date on the basis of documents which are not however automatically made public either before or after each hearing: 

27 February 2018: “We encourage the continuation of the dialogue between the European Commission and Poland”

20 March 2018: “Ministers expressed the hope that the dialogue between the Commission and the Polish authorities will bring positive results on the issue”

17 April 2018: “Ministers encouraged the Commission and the Polish authorities to continue their dialogue with a view to achieving concrete results”

14 May 2018: “The Commission updated ministers on the latest developments in its dialogue with the Polish authorities.The Council will return to this issue at its next meeting” 

26 June 2018 (first formal Article 7(1) hearing): “The hearing offered a possibility for ministers to have an in-depth exchange with Poland on the concerns identified in the Commission’s reasoned proposal” 

18 September 2018 (second formal Article 7(1) hearing): “Ministers continued their in-depth exchange with Poland on the concerns identified in the Commission’s reasoned proposal under Article 7(1) TEU” 

16 October 2018: “Ministers reiterated the importance of upholding the rule of law in all EU member states and stressed the need to achieve tangible progress. The Council will come back to this matter”

12 November 2018: “The Commission provided the Council with an update on the latest developments regarding judicial reform in Poland”

11 December 2018 (third formal Article 7(1) hearing): “The Council will continue the Article 7(1) TEU proceedings concerning Poland under the Romanian presidency”

Early evidence however suggests that one can expect more disgraceful procrastination under the Romanian presidency, whose own website indicates a lack of familiarity with the very concept of the rule of law which is nowhere to be seen despite “Europe of Common Values” being allegedly the fourth priority of the Romanian presidency. 

Be that as it may, one key take from the documents which have found their way in the public domain is that Polish authorities, after repeatedly misleading the European Commission, did not shy away from doing the same with its peers. To give a single but characteristically absurd argument submitted to the attention of fellow national governments (via a PowerPoint presentation), the Polish government claimed that it was legally unobjectionable to replace the sitting First President of the Polish Supreme Court notwithstanding the obvious breach of the relevant provision of the Polish Constitution regarding her terms of office because – we kid you not – the previous First President was replaced when “his six-years [sic] term ended prematurely with his death in 2014”… 

Despite the apparent lack of tangible results, the Commission was right to activate Article 7(1) TEU. As argued in this post, “the intensity and repeated nature of Poland’s ruling party’s attacks on the most basic tenets of the rule of law” warranted the activation of Article 7. It has finally forced EU national governments to confront the situation and it has enabled us, despite much secrecy, to finally know which governments take the rule of law seriously and which ones do not. In addition to the not surprising support of Orbán’s regime, itself subject to another pending Article 7(1) procedure, and the quieter but still supporting stance of Bulgaria and Romania – themselves subject to a specific rule of law monitoring process since 2007 – it was disappointing to see the UK government thinking that the Polish government support over Brexit is worth sacrificing its previously strong pro-rule of law stance. 

If we had one practical recommendation to make it would be for the Council to be more transparent when it comes to the practical modalities of Article 7(1) hearings and connected documents. The least we can indeed expect is full transparency when it comes to a country’s potential systemic failure to comply with the basic principles governing access to the EU in the first place. It is rather strange in this respect to see the EU being more transparent when it comes to a country withdrawing from the EU. This is why the Council ought to systematically and promptly publish any document it produces or has received from the Commission and/or any national government with respect to the ongoing Article 7 procedure. And in the absence of any Council’s assessment of the substance of the rule of law issues identified by the Commission, let us offer our own: every single one of the rule of law issues identified by the Commission is not only entirely relevant but also has been adequately evidenced over and over again. Every single one of them is yet to be adequately addressed. The only ‘progress’ to date concerns the Polish authorities’ attempted purge of the Supreme Court. It was however only (provisionally) averted because of a judicial defeat and not because of Article 7 proceedings or Polish authorities finally deciding to comply with the principle of sincere cooperation. 

3. Two Polish infringement defeats 

Before mentioning the recent order of the ECJ demanding the immediate suspension of the application of the Polish legislation relating to the retroactive lowering of the retirement age for Supreme Court judges (Commission/Poland, C-619/18 R), it is worth stressing this is not the first time the ECJ had to step in and not the first time the ECJ was faced with threats and bullying tactics from Polish authorities. 

In November 2017, Polish authorities were ordered by the Court to immediately cease logging in the Białowieża Forest subject – for the very first time – to a penalty payment of at least €100,000 per day in case of non-compliance (Commission/Poland, C-441/17 R).

Why this unprecedented order? Because the Polish government – also for the very first time – previously publicly and rudely refused to comply with a previous order of the Court with the then Polish environment minister adding that “we will not be insulted by those who don’t know about the rules of protection of environment”. No wonder the Court then had to take an unprecedented step as this was a direct and present threat to the effective application of EU law, which, as the Court noted, is “an essential component of the rule of law, a value enshrined in Article 2 TEU”.

Bis repetita in 2018 with another round of non-compliance threats but this time made even before the Court’s first provisional order, with Poland’s deputy prime minister stating that Poland could ignore a ruling against it.

Following the adoption of a provisional order of the ECJ Vice-President on 19 October 2018, reactions were however more muted with Jarosław Kaczyński saying that “the ECJ’s decision is preliminary. We will appeal against it” (NB there is no such appeal against ECJ orders), and President Duda stating that the ECJ “went too far” (how and to what extent no one knows).  

The apparent climb-down widely reported in the international media is nothing of the sort. Yes, it was humiliating for Polish authorities to have to accept the “return” of judges they had publicly declared “retired”. However, the set of amendments adopted last November seemingly to enforce the ECJ order – which in fact was not needed since the interim measure produces immediate legal effects, as ECJ President confirmed – is just a tactical retreat containing the seeds of future backsliding (it is also an attempt to “kill off” some crucial pending preliminary reference cases originating from Polish courts: see part II of this post for more details). 

As noted by the PiS chairman of the parliamentary justice committee, “sometimes you have to take one step back to take two steps forwards. The reform will certainly be completed.”

While seemingly admitting defeat, the Polish President has however ominously stated that the ECJ order “needs to be executed regardless of the discussions on whether such a ruling should have or could have been made by the CJEU, and whether this ruling exceeds the treaty competencies of the CJEU”. Adding insult to injury, he could not refrain from violating (again) one of the Commission’s repeated recommendations to stop attacking judges when he stated that “significant people in the judiciary… overtly violate the effective law and constitutional provisions and disregard the binding legislation, then we are dealing with anarchy by the representatives of the judiciary.”

This is not a little rich coming from the violator-in-chief of the Polish Constitution and one of the key architects of the slow-motion “constitutional coup d’état”, to borrow from Professor Sadurski, we have been witnessing in Poland. It also shows beyond any doubt that the current Polish authorities will not back down and back away from their attempt to annihilate the rule of law and replace it with the rule of the ruling party under the guise of the will of the “people”.

The way the amendments were incredibly rushed – the bill was introduced by MPs so as to bypass public consultations and the whole legislative process completed in 2 days 10 hours 30 minutes – and the ludicrous delay to get the act published in the Official Journal – while adopted on 21 November, the law was not published until 31 December 2018 – show the persistent disrespect towards the most elementary understanding of the rule of law and the Commission’s repeated recommendations, one of which was that any “justice reform is prepared in close cooperation with the judiciary and all interested parties”. Having sat on the act for more than 8 weeks, it is difficult to see why more time was not spent consulting relevant stakeholders.  

Be that as it may, it is important to remember we have been here before. In the case of Hungary, as outlined in this 2016 article by Professor Batory, “none of the concessions prevented the Hungarian government from achieving its partisan goals. Commission action amounted to little more than chipping away at the edges of a new constitutional order cementing a single political party’s hold on political power in an EU member state.” 

It is to be hoped key actors have learned their lessons from the past failures to stop Hungary’s descent into full blown authoritarianism. To avoid a similar fate with respect to Poland, we will offer some brief recommendations at the end of part II of this post. But to put it briefly, now is not the time for the Commission to stop bringing infringement actions and for the Council to stop questioning Polish authorities on how they intend to promptly and meaningfully comply with the multiple problems identified by the Commission in its Article 7 proposal, with all but half one (regarding the Supreme Court) yet to be complied with:

  • While the Law on the Supreme Court has been amended, this has had no impact on the prior packing of the Court with most of the new “judges” appointed to the modern equivalent of “star chambers” (i.e., the Disciplinary Chamber and the Extraordinary Control and Public Affairs Chamber), on the back of a procedure which lacks legal basis as the President did not obtain the Prime Minister’s countersignature when he published vacant seats in the Supreme Court; 
  • Poland continues to be deprived of effective constitutional review following the unconstitutional capture of the Constitutional Tribunal in December 2016 and the refusal of Polish authorities to comply with key rulings of the pre-captured Tribunal; 
  • The law on the Supreme Court, the law on Ordinary Courts Organisation, the law on the National Council for the Judiciary (KRS) and the law on the National School of Judiciary have yet to be amended in such a way as to ensure their compliance with the requirements relating to the independence of the judiciary, the separation of powers and legal certainty;  
  • Polish authorities have persistently failed to ensure that any justice reform is prepared in close cooperation with the judiciary and all interested parties, including the Venice Commission; 
  • They have similarly persistently failed to refrain from actions and public statements attacking courts and judges which refuse to uphold the will of the party over Poland’s constitutional and EU law obligations.  

By the way, it would appear that logging in the Białowieża site has recently resumed while the Polish Minister of Justice has renewed past threats not to comply with ECJ rulings stressing on 31 December 2018that Polish authorities would only comply with “rulings that are in line with our Constitution”. This obviously means in line with what the ruling party thinks the Constitution should guarantee, not what the actual Constitution provides. 

So much for the new spirit of compliance some detected a couple of weeks ago.  


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.

  • 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]

Manufacturing Discontent: Q and A on the legal issues of asylum-seekers crossing the Channel


Professor Steve Peers, University of Essex*
*Supported by an ESRC Priority Brexit Grant on ‘Brexit and UK and EU Immigration Policy’.

Cynical politicians, aided by an uncritical media, aim to manufacture a moral panic from a modest number of people crossing the Channel. Be that as it may, these crossings raise a number of legal issues. There’s already a good discussion of many of them in the Free Movement blog, but I think it might also be useful to address some legal issues here, in a question and answer format.

Where are the international law rules on asylum?They are scattered all over the place incoherently. International lawyers like to describe their subject as ‘fragmented’, and that’s particularly true of asylum law. There are three main sources of law on asylum in Europe, and although they are legally separate, their rules overlap and interact. I won’t discuss every way in which this happens in this blog post – just those most relevant to the Channel crossings.

The UN Refugee Convention  The starting point is the United Nations (Geneva) Convention on the status of refugees, which defines what a refugee is and lists the rights of refugees. But that Convention does not deal with issues like asylum procedure, and has an uneasy and uncertain relationship with immigration law.

ECHR Secondly, the European Convention on Human Rights (ECHR) says nothing about asylum explicitly, but the case law of the European Court of Human Rights has addressed a number of asylum-related issues, in particular arising from Article 3 ECHR, the ban on torture or other inhuman or degrading treatment. According to that case law, removal to another country to face a sufficiently serious risk of Article 3 treatment in that other country infringes Article 3 in the country removing the person concerned. A series of procedural obligations then follow from that.  (There are other international human rights treaties which take a broadly similar approach, but I focus here on the ECHR as its court rulings are binding and have a greater impact in practice).

EU asylum lawThirdly, EU law has aimed to create a Common European Asylum System (CEAS) in several phases.  A first phase of EU asylum law was adopted from 2003 to 2005, and a second phase was adopted between 2010 and 2013. A (de facto) third phase of laws, responding to the perceived European refugee crisis of 2015, was proposed in 2016, but negotiations on those laws are still continuing.

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(From Verfassungsblog) Capturing Bulgaria’s Justice System: The Homestretch


Author : Radosveta Vassileva (9 Jan 2019)

On 18 December 2018, Magistrats Européens pour la Démocratie et les Libertés (MEDEL) announced that it had sent a letter to the European Commission in which it raised concern about the lack of independence of the Bulgarian judiciary, naming inter alia the “recurrent pressures” faced by the President of Bulgaria’s Supreme Court of Cassation. 

While focusing on other EU members facing challenges in the area of rule of law, foreign commentators may not realize that the situation in Bulgaria is critical. Bulgaria’s executive is now headed into the homestretch of capturing the entire justice system. The current unprecedented proceedings against the President of the Supreme Court of Cassation would complete the capture if the plan that shows through – remove him from office – works.

The Homestretch

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Implementing EU law at national level: still a bumpy road…

The European Parliament Research Service has recently published a briefing  dealing with the Challenges in the implementation of EU Law at national level. The document authored by Melanie Smith, (Reader in Law, Cardiff School of Law and Politics, Cardiff University) is clear and updated on the basis also of the recent European Commission works in the so called “better legislation” agenda. The missing point in the Parliament and in the Commission works is that still now true transparency is not yet granted in this delicate phase of the EU policy cycle. European Citizens as well as the European Parliament have no access to the informations dealing with the transposition and implementation of EU law. The same happen for national Parliaments when they want to know how the transposition is progressing in another EU Country.

The relations between the Commission and each Member State remain confidential at least until when the Commission under its discretion as Guardian of the Treaty that an infringement procedure should be launched. This mechanism could had been acceptable when the EU was only an internal market but has became inadequate since when the EU measures can have an impact on the rights of millions of EU citizens.

I am convinced  that the principle of sincere cooperation (art 4.3 TEU) according to which (*) Member States should implement the EU legislation would require now that when an EU measure is adopted the Member State should not only inform the Commission but also its own Citizens on the national measures to be taken by listing the adminstrations in charge and the organizational measures to be taken. Participative democracy should play its role not only in the ascending phase of the EU legislation but also in the descending phase of the EU policy cycle when rights and obligations of citizens are framed at national level. 

(*) Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.


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Has the EU lost its compass towards an European Area of Freedom Security and Justice ?


Night view of Europe

 Transforming the European Union into an Area of Freedom, Security and Justice: Twenty years after Tampere and ten after Lisbon, the objective is still out of reach.

 Rome, 28 January 2019, 9.30/12.30 – 14.00/17.30

Spazio Europa (managed by the European Parliament Office in Italy and the European Commission Representation in Italy) Via Quattro Novembre 149 (ground floor) – Roma

Twenty years ago, the Amsterdam Treaty entered into force and with it the objective of transforming and developing the European Union into an Area of Freedom, Security and Justice area (AFSJ). This objective confirmed ten years later by the Lisbon Treaty and by the Charter of Fundamental Rights, signaled the EU Member States determination of transforming the internal market into a new kind of supranational political space placing “..the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.”[i] However, since then, the experience has shown us that despite some important successes, that goal is still far from being realized.

Many factors of political, bureaucratic, institutional nature and, above all, the overlapping of several external and internal crises have put a strain on the Union and its Member States. Although it will not be possible to analyze them in detail in one day seminar of 28 January, we will try to understand what the nature of the major shortcomings and which political legal and institutional steps can be taken to overcome these difficulties during the next parliamentary term, without revising the current Treaties.

Our brain storming will be take place around four round tables open to people coming from European and national institutions or from the academia who have followed closely the evolution of the different policies that contribute directly or indirectly to the transformation of the Union. in Space for freedom, security and justice.

During the round tables the institutional dimension will be taken into consideration (not only at European but also national level), as well as the growing role of European Agencies and Authorities and the international dimension (United Nations, Council of Europe)

1st  Round table: The values that the EU and the Member States must protect and promote

Sharing common values is the prerequisite of achieving together the objectives set by the Treaties and is the basis of mutual trust between Member States, notably when they implement the AFSJ related policies. When these values are risk or are violated, the Treaty provide the possibility to suspend even the voting rights of the Member State in question (Article 7 TEU). In the same perspective the Court of Justice has also recognized that also the mutual trust between the EU MS could be compromised and that this could hinder the mutual recognition mechanisms notably when respect for the rule of law is at stake. This round table will discuss on one side the common policies related to the AFSJ so that they respect the EU fundamental values and rights and on the other side the measures to be taken when one or more Member States jeopardize the values and the objectives of the EU. One can therefore ask whether, new mechanisms should be created to prevent these shortcomings at EU and National level.

Speakers: Enzo Cannizzaro, Valerio Onida, Oreste Pollicino

2nd Round Table: Freedom of movement, border control, asylum and migration

Freedom of movement within the EU and the abolition of internal border controls are the proof of the existence of a supranational human mobility area so that it is worrying that several EU Member States are trying to re-establish in a more or less permanent way these checks at the internal borders. In the last years, (starting in 2013 from the Schengen governance reform), the European Union has developed an impressive series of initiatives protecting the external borders and has launched an integrated border management which is deemed granting the highest level of security. Many scholars and representatives of institutions such as the European Data Protection Controller, have considered the requests for further internal and external border checks disproportionate face to the alleged threats.

The same security-focused strategy has also been at stake to limit the right to asylum and even to limit the EU management of migratory flows as well as the visa policy. Also limited have been the EU initiatives to promote the integration of migrants in national societies and labor markets or to facilitate access for regular migrants.

Speakers: Giuseppe Cataldi, Steve Peers, Mario Savino

 12,30 Buffet

 3rd Round table: the internal (and external) security area

The EU has developed since 9/11 its Internal Security agenda and this process has even intensified during the last ten years with a particular focus on preventing terrorism. Unfortunately most of these EU measures have been adopted without a proper prior and post impact assessment so that it is very hard to judge their effectiveness or even revise their scope. The lack of information from the Member States hinders the democratic control, especially at the European level, as it has been proved by a recent EP resolution.

To counter this the EU is developing interoperability between European and national databases even if these databases were originally designed for other purposes (e.g. EURODAC, VIS). Last but not least using the external security legal framework (which is not binding and lacks parliamentary control) for internal security policies makes everything more complex and less transparent.

Speakers: Tony Bunyan, Luisa Marin, Marc Rotenberg

 4th Round table: the European judicial area

The European judicial area has developed considerably in the civil field but has remained incomplete in the criminal field. The principle of mutual recognition of measures taken at national level has undergone several setbacks with the weakening of mutual trust between Member States and in the presence of highly differentiated national contexts in a supranational area where some Countries are particularly affected by organized crime and others which are practically immune). The “Lisbonisation” of EUROJUST and the creation of the European Public Prosecutor’s Office are good steps in the right direction but synergies between police and judicial cooperation at EU level are still incomplete and there is no currently an EU Strategy for strengthening the criminal justice area.

Speakers: Luca de Matteis, Lorenzo Salazar, Andrea Venegoni

 Chair: Emilio De Capitani

 Working language: Italian, English

[i] From the EU Charter of Fundamental rights preamble.


Organizational secretary: Fondazione Lelio e Lisli Basso.  Via della Dogana Vecchia, 5 – Roma Tel. 06 6879953 – basso@fondazionebasso.it

The European Commission’s Activation of Article 7: Better Late than Never?


by Dimitry Kochenov, Professor of EU Constitutional Law at the University of Groningen; Laurent Pech, Professor of European Law at Middlesex University London; and Kim Lane Scheppele, Professor of Sociology and International Affairs at Princeton University
‘The European Union is first and foremost a Union of values and of the rule of law. The conquest of these values is the result of our history. They are the hard core of the Union’s identity and enable every citizen to identify with it. The Commission is convinced that in this Union of values it will not be necessary to apply penalties pursuant to Article 7 of the Union Treaty’ European Commission, 15 October 2003
1. What has just happened?
On Wednesday, the European Commission reacted to the continuing deterioration of the rule of law situation in Poland by (i) issuing a fourth Rule of Law Recommendation, which complements three previous Recommendations, adopted on 27 July 2016, 21 December 2016 and 27 July 2017; (ii) submitting a Reasoned Proposal for a Decision of the Council on the determination of a clear risk of a serious breach of the rule of law by Poland under Article 7(1) TEU and (iii) referring the Polish Law on the Ordinary Courts Organisation to the Court of Justice of the EU under Article 258 TFEU and in the context of which the Commission is raising for the first time (to the best of our knowledge) a violation of Article 19(1) TEU in combination with Article 47 of the EU Charter of Fundamental Rights by Poland to the extent that the Minister of Justice has been given a discretionary power to prolong the mandate of judges which have reached retirement age (a similar combination was raised in the first stage of an infringement action against Hungary in December 2015 with regard to immigration issues but this language was dropped by the time it got to the Court of Justice).
Should the Polish authorities finally decide to implement the Commission’s recommendations within three months, the Commission has indicated its readiness to ‘reconsider’ its Article 7(1) proposal (para 50 of the Commission’s fourth rule of law recommendation).
The intensity and repeated nature of Poland’s ruling party attacks on the most basic tenets of the rule of law are unprecedentedly aggressive and in obvious breach of the Polish Constitution, which in our view warrants the Commission’s action (this is not to say that Article 7(1) should not also be activated against Hungary as two of the present authors previously argued in this 2016 article). Indeed, as rightly noted by the Commission, the Polish authorities have adopted over a period of two years no less ‘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’. It was time therefore for the Commission to defend the independence of Member State judiciaries and the rule of law (as nicely put by Maximilian Steinbeis, ‘Polish courts are our courts’, that is, ‘if the legal system in a Member State is broken, the legal system in the whole of the EU is broken’).
The media have so far only almost exclusively focused on the first ever invocation of what is often described as the EU’s ‘nuclear option’, which, however, as correctly pointed out by Frans Timmermans in his press conference announcing the Commission’s actions, is a misnomer (as we previously argued here). To put it briefly, Article 7 TEU provides for two main mechanisms: a preventive one in case of a ‘clear risk of a serious breach’ of the values common to the EU and its Member States and a sanctioning one where ‘a serious and persistent breach’ of the same values has materialised (for more detailed commentaries on the mechanics of Article 7 see hereand here).
The Commission merely initiated the preventive mechanism on Wednesday when one could however reasonably argue that we are already way beyond the stage of a ‘clear risk’ and entered ‘serious and persistent breach’ territory following the capture of the Polish Constitutional Tribunal in obvious breach both of the Polish Constitution and the Commission’s first and second rule of law recommendations (see Pech and Scheppele, January 2017). Before however offering further details on the situation in Poland, however, it may be worth offering a brief overview of Article 7’s genesis.


2. Genesis of Article 7

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