EUROPEAN LAW BLOG : E-Evidence in the EU Parliament: Basic Features of Birgit Sippel’s Draft Report

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.
  • 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 principledual criminality considerationsprivileges 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.

VERFASSUNGSBLOG : 1460 Days Later: Rule of Law in Poland R.I.P. (Part I and II) Laurent Pech, Patryk Wachowiec Mi Jan 2020

SEE : Pech, Laurent; Wachowiec, Patryk: 1460 Days Later: Rule of Law in Poland R.I.P. (Part II), VerfBlog, 2020/1/15, https://verfassungsblog.de/1460-days-later-rule-of-law-in-poland-r-i-p-part-ii/.

On 13 January 2016, exactly four years ago today, the Commission activated its rule of law framework for the very first time with respect to Poland (for our previous 2-part post assessing the situation as of 13 January 2019 see here).

During this time, Poland has become the first EU Member State:

  • to be threatened with the payment of a penalty payment of at least €100,000 per day should it continue to ignore an interim order adopted by the ECJ in July 2017;
  • to be subject to the exceptional procedure laid down in Article 7(1) TEU in December 2017;
  • to have seen its newly “redesigned” National Council of the Judiciary suspended from the European Networks of Councils for the Judiciary for its lack of independence in August 2018;
  • to have seen its self-described “judicial reforms” provisionally suspended by the Court of Justice via two interim orders in October and December 2018;
  • to have been found by the Court of Justice to have failed to fulfil its Treaty obligations under the second subparagraph of Article 19(1) TEU not once but twice in June and November 2019;
  • to have been referred to the Court of Justice by the Commission for making it possible to subject ordinary court judges to disciplinary investigations, procedures and sanctions on the basis of the content of their judicial decisions, including the exercise of their right under Article 267 TFEU to request preliminary rulings from the Court of Justice.

As if to outdo itself when it comes to annihilating judicial independence, Poland’s ruling party has rushed an unprecedented piece of legislation last month. This bill “raises the question of whether Poland wants to remain in the EU” by forcing non-compliance with EU rule of law requirements and strengthening an arbitrary disciplinary regime which has already enabled a multitude of kangaroo disciplinary proceedings against any judge at any point in time for as long as needed from the point of view of the ruling party.

As recently and accurately observed, “no member state in the history of the EU has ever gone as far in subjugating its courts to executive control as the current Polish government. The Polish case has become a test whether it is possible to create a Soviet-style justice system in an EU member state; a system where the control of courts, prosecutors and judges lies with the executive and a single party”.

This (two-part) post will highlight the main developments, primarily from the point of view of EU law, which took place in 2019. The most noteworthy one is the Court of Justice’s two infringements rulings which have found Poland to have violated the principles of the irremovability of judges and judicial independence and the Court of Justice’s first preliminary ruling regarding the so-called “Disciplinary Chamber” of Poland’s Supreme Court. The latter ruling has proved particularly impactful as it has directly led a not-yet-captured chamber of Poland’s Supreme Court to find the Disciplinary Chamber not to constitute a court within the meaning of EU and Polish Law. These two rulings have led in turn Polish authorities to put forward what may be described as a “de facto Polexit bill”.

This means that the warning addressed to the new President of the European Commission last month by multiple NGOs and scholars remains more valid than ever: “The attacks on judicial independence we are witnessing in Poland are unprecedented in the history of the EU and legal chaos is bound to ensue and spread because Polish authorities are openly and purposefully ignoring their duties and obligations as a matter of Polish as well as EU law. If not promptly addressed through interim measures, we have no doubt this will mark the beginning of the end of the EU’s common and interconnected legal order.”

It is time for European and national actors to WAKE UP and realise we may soon reach a tipping point, with the EU’s interconnected legal ecosystem facing a medium-term risk of collapse due to the premeditated and ongoing “destruction of the independence of the judiciary” we are witnessing in Poland, a process which seems to be inspiring an increasing number of national governments with exhibit A being Orbán’s Hungary.

1. Going M.I.A. in 2019: The Council

Before outlining the Court of Justice’s decisive contribution in 2019, one may note the Council’s failure to organise any Article 7(1) TEU hearing in respect of Poland since it held one in December 2018. One should not understand the lack of any Article 7(1) hearing as meaning that the Commission’s Article 7(1) recommendations have been met. Indeed, not a single one of them has been fully implemented by Polish authorities. In fact, the situation is worse than ever, which is why the Commission had no choice but to conclude in February 2019 that due to “the cumulative effect of the recent changes affecting the judiciary”, which “are limiting its independence” and “infringing upon the separation of powers”, the executive and legislative powers can now “interfere throughout the entire structure and output of the justice system”.

You have read this correctly: Poland’s executive and legislative powers, de facto controlled by Poland’s de facto Great Leader, can now interfere at will with the functioning and outputs of Polish courts (one may note in passing that the Commission’s diagnosis confirms the ill-advised nature of the so-called Celmer test devised by the ECJ as we noted last year). This interference is now happening openly, through disciplinary charges or administrative measures, such as early dismissals from secondment or temporary suspension by captured presidents of courts, but also more indirectly by putting pressure on judges not to adjudicate in a certain way whenever the interests of the ruling party demand it.

What has the Council done to address the situation? Not much or rather, as little as possible. Two explanations may be advanced: the Romanian government, in charge of the rotating presidency of the Council, was too busy undermining the rule of law in Romania to organise a hearing while the otherwise very active Finnish Presidency did not want to be seen as interfering with Poland’s parliamentary elections of October 2019, which is why it prioritised the organisation of the first Article 7(1) TEU hearing held in respect of Hungary in September 2019 followed by another one in December 2019.

In concrete terms, this means we only saw the Commission give a few updates on the rule of law situation in Poland during the past 12 months: 

18 February 2019: The Commission provided the Council with an update on the latest developments regarding judicial reform in Poland. Member states considered that recent legislative changes concerning the Supreme Court law were a positive development and encouraged the Polish authorities to address the remaining issues raised by the Commission.

9 April 2019: The Commission provided an update on the state of play in relation to Poland.

18 July 2019: The Council took stock of the state of play as regards the rule of law in Poland in the light of recent developments, in particular the judgment of the European Court of Justice on Poland’s Supreme Court law.

16 September: The Commission updated ministers on the developments regarding the rule of law in Poland following the meeting of the General Affairs Council in July.

10 December 2019: The Commission updated ministers on the latest developments, including the recent judgments of the European Court of Justice concerning Polish rules on the retirement age of judges and public prosecutors and the new Disciplinary Chamber of the Polish Supreme Court.

Beyond the issue of the two rotating presidencies of the Council’s own priorities, it would appear that an additional pretext was used by some EU governments to justify their not untypical torpor: the alleged need to wait to see how Polish authorities would comply (or not) with the Court of Justice’s forthcoming infringement and preliminary rulings considering the increasing number of pending cases before the Court, and which directly or indirectly raise most of the issues highlighted in the Commission’s Article 7(1) reasoned proposal.

As we shall now see, Polish authorities have only publicly accepted to comply with the Court’s two infringement rulings to date primarily because these rulings did not prevent them from progressively capturing the Supreme Court from within. As soon as the Court of Justice provided an interpretation of EU law which led a not-yet-captured chamber of Poland’s Supreme Court to find unlawful two of the sham bodies established or captured by the ruling party (i.e. the “Disciplinary Chamber” of the Supreme Court and the ENCJ-suspended National Council of the Judiciary), a new bill was put forward to organise and legalise non-compliance with the judicial independence requirements established in EU law, in obvious breach of both the Polish Constitution and the EU Treaties.

2. The Court of Justice’s entrée en piste

As of today, two infringement rulings – Case C-192/18 and Case C-619/18 – and one preliminary ruling – joined Cases C-585/18, C-624/18 and C-625/18 – have been issued by the Court of Justice. In addition, one infringement case regarding Poland’s new disciplinary regime for judges (C-791/19) and, to the best of our knowledge, eighteen requests for a preliminary ruling raising judicial independence issues, are now pending before the Court.

The two infringement rulings previously mentioned went against Poland, which was not in the slightest surprising considering the obvious arbitrary nature of the changes pushed by Polish authorities regarding the retirement regime of Polish Supreme Court judges, Polish ordinary court judges and public prosecutors. These infringement rulings having been analysed elsewhere (see e.g. here and here), let us just emphasise how they show the lack of good faith of Polish authorities when it comes to the real reasons underlying their so-called “reforms”. Indeed, while members of Poland’s ruling party have been keen to constantly emphasise the need to “decommunise” the judiciary (even claiming that younger judges educated post 1989 would allegedly follow the behavioural patterns of their older, allegedly “communist”, colleagues), the justifications put forward before the Court to justify the retirement “reforms” were of a different nature. For instance, the lowering of the retirement age of Supreme Court judges to 65 was allegedly needed to standardise their regime “with the general retirement age applicable to all workers in Poland” while in the case of female ordinary court judges, Polish authorities explained the lowering of their retirement age to 60 (from 67) “on account of their particular social role connected with motherhood and child raising”.

With respect to the Supreme Court, the Court observed, in a highly unusual fashion but commensurate to the Polish government’s bad faith, that the “explanatory memorandum to the draft New Law on the Supreme Court contains information that is such as to raise serious doubts [our emphasis] as to whether the reform of the retirement age of serving judges of the Sąd Najwyższy (Supreme Court) was made in pursuance of such objectives, and not with the aim of side-lining a certain group of judges of that court [our emphasis]”. The Court therefore had no choice but to conclude that Polish authorities did not pursue a legitimate objective when they sought to lower the retirement age of the Supreme Court judges in post prior to the adoption of the law in dispute. Similarly, the Court of Justice found the new Polish rules relating to the retirement age of judges of ordinary courts and public prosecutors, adopted in July 2017, to be in violation inter alia of the principle of irremovability of judges, which is inherent in judicial independence.

In another seminal (preliminary) ruling (analysed e.g. here and here), the Court of Justice meticulously explained how the referring chamber of Poland’s Supreme Court can ascertain whether the so-called Disciplinary Chamber (hereinafter: DC) – which is also one of the problems highlighted by the Commission in its Article 7(1) reasoned proposal –  is sufficiently independent to constitute a court within the meaning of EU law. In the same preliminary ruling, the Court also explains how to ascertain the independence (or lack thereof) of the new National Council of the Judiciary (hereinafter: NCJ) – another body which has been highlighted as problematic by the Commission and many other organisations. Overall, the ECJ’s interpretation makes it implicitly obvious that neither the DC nor the NCJ satisfy the basic requirements of independence established by EU law, as previously made explicitly clear by Advocate General Tanchev.

Unsurprisingly, therefore, the referring court (the Labour and Social Security Chamber of the Supreme Court) subsequently found on 5 December 2019, on the basis of a meticulous and compellingly argued judgment, that the neo-NCJ does not offer a sufficient guarantee of independence from the legislative and executive authorities before ruling that the “Disciplinary Chamber” does not constitute a “court” within the meaning of EU law and therefore not a court within the meaning of Polish law as well.

With respect to the neo-NCJ, one may recall that it has been suspended from the ENCJ since August 2018 and that it was not merely established in breach of the Polish Constitution but also most likely unlawfully constituted on the basis of the 2017 (unconstitutional) law which changed the appointment procedure for the judicial members of the NCJ while also providing “for the early termination of the mandate of all judicial members on the Council”. To put it simply, it is likely that the judicial members of the NCJ were not supported by the required number of judges provided by the new (unconstitutional) law and/or only supported by each other or judges seconded to the Ministry of Justice. This is likely the reason why national authorities have openly ignored (you read that correctly) a final ruling from the Supreme Administrative Court ordering the Sejm to disclose the names of the judges supporting the NCJ candidates.

This blatant but far from unique violation of the most basic understanding of the rule of law by Polish authorities was rightly deplored by the Supreme Court in its judgment of 5 December 2019 which applied the ECJ preliminary ruling of 19 November 2019.

3. Problems left unaddressed by the Court of Justice’s rulings to date

Notwithstanding the seminal and welcome rulings issued this year by the Court of Justice, a number of important and urgent issues have been left unaddressed. This is not to say, however, that the Court of Justice is necessarily at fault as e.g. the Court cannot approve interim measures if it does not receive an application from the Commission as it did in the case relating to the independence of Poland’s Supreme Court and most recently in the case relating to the Disciplinary Chamber.

To begin with, the situation has not improved one iota as far as the (captured) Constitutional Tribunal (hereinafter: CT) is concerned. Despite a sharp decline in the number of cases submitted to it due to the widespread concerns about its lack of independence, the CT is fully operating and continuing to pretend to be a court. Last October, it even acted like a truly “European” court by declaring, for the first time, that a statute is not consistent with the TFEU (case P 1/18). This may be viewed positively at first sight but it should not be. Indeed, what we have here is a body masquerading as a court enforcing EU law (but only when it suits the ruling party) whereas according to the Commission itself, there is no longer any effective constitutional review in Poland following the failure of Polish authorities to take any steps with the view of restoring the independence of the CT. In addition to this damning diagnosis, one may refer to a series of letters to the (unlawfully appointed) “President” of the CT by a fellow judge. These letters offer multiple examples of obvious abuse of power such as an arbitrary allocation of cases to please the ruling party, an arbitrary make-up of judicial panels as well as an arbitrary (and unconstitutional) prohibition of dissenting opinions. To put it concisely, the time for an infringement action directly targeting the captured CT has come considering the damage it has done and its role when it comes to giving a veneer of legality to fellow sham bodies such as the Disciplinary Chamber (DC) and the National Council of the Judiciary (NCJ).

Speaking of the NCJ, people may be surprised (or not) to learn that it is continuing to function in a “business as usual” fashion notwithstanding the ruling of the Supreme Court of 5 December 2019 finding it to lack sufficient independence from legislative and executive authorities. In addition, some of its members have been busy spreading falsehoods about the content and binding nature of the ECJ preliminary ruling of 19 November 2019. Since its (unconstitutional) establishment on the back of the premature termination of the four-year term of office of its previous members, the neo-NCJ has recommended more than 650 individuals to be appointed as judges or for promotion. Its enthusiastic participation in the (unconstitutional) attempted purge and simultaneous court-packing of the Supreme Court has been well documented, not least by the European Commission. Furthermore, it was revealed last August that some NCJ members secretly took part in a smear campaign targeting judges, including the First President of the Supreme Court (alleged members of what has been described as a “troll form” have of course denied the allegations). As of today, we are still waiting for meaningful investigations and sanctions but how can one hope for any given that “it is clear that the alleged smear campaign was organised from within the Ministry, with the involvement of high ranking officials in the Ministry and National Council of Justice”, with the investigations undertaken by the NCJ and the prosecution service which is controlled by the Minister of Justice, the alleged main guilty party.

Similarly, the two captured chambers of Poland’s Supreme Court – the DC and the Extraordinary Control and Public Affairs Chamber – continue to function and continue to pretend to be independent judicial bodies. To give a veneer of legality to their existence, they have involved the captured CT by requesting it confirm the constitutionality of their status and deliberately referring cases to extended panels within them (7 “judges” or the whole chamber) in order to make their “judgments” more difficult to overrule as other benches, composed of 3 judges, normally need to refer cases to even bigger formation should they wish to override it. The “judges” belonging to the Disciplinary Chamber also did not shy away from self-certifying themselves. In April 2019, they adopted a resolution proclaiming that their appointment is lawful and that the ENCJ-suspended NCJ was similarly established in a lawful manner as confirmed by the ruling of the (unlawfully composed) panel of the CT. They must not be aware of the nemo judex in causa sua principle among other basic legal principles.

To complete our brief outline of the yet to be addressed issues by the ECJ (but a third infringement action is now pending before it), the overall operation of the new disciplinary system needs to be mentioned. While an alleged involvement in a smear campaign organised by the Ministry of Justice will not cause you any major inconvenience (disciplinary or otherwise), multiple judges have faced disciplinary charges for such “major crimes” as seeking to implement the Court of Justice ruling of 19 November 2019, being publicly critical about the so-called “judicial reforms” and “their effect on judicial independence”, or, even more alarmingly, for the content of the “decisions they have taken when adjudicating cases”. Yes, we are talking about a Member State of the EU in 2019 and not the Soviet Union. This is why, one may note in passing, that the analysis of Advocate General Tanchev in Miasto Łowicz and Others (C-558/18 and C-563/18) may appear excessively formalistic and disconnected from the reality on the ground. As noted in a recent and worth reading report by two members of the Council of Europe’s Parliamentary Assembly:

A key issue of concern is the fact that after prosecutors and judges have been informed by the Disciplinary Inspectors that a disciplinary investigation has been started against them, these investigations often continue indefinitely without formal disciplinary charges being brought [our emphasis] before the relevant disciplinary chambers … The Chairperson of the National Council of the Judiciary informed us that, in the last year and a half, 1174 disciplinary investigations were started. Only in 71 instances had disciplinary cases been opened … Irrespective of the small number of actual disciplinary cases opened, the large number of investigations started by disciplinary officers directly accountable to the Minster of Justice, and the time it takes to close these investigations, if at all, clearly has a chilling effect on the judiciary and affects their independence.

This is now the reality of the state of the rule of law in Poland. It is to be hoped that the ECJ will not exclusively focus on whether formal disciplinary charges have been brought but instead take full account of the overall context and the impact of the multiple (kangaroo) disciplinary investigations leaving judges and prosecutors the ruling party has targeted in a “precarious limbo” as they are being investigated without “being able to defend themselves”.

4. Going for broke: The “de facto Polexit” bill

Having initially reacted positively to the Court of Justice’s ruling of 19 November 2019 – according to the Minister of Justice/Prosecutor General, the Court’s ruling was a “great defeat for the extraordinary caste” – representatives of the ruling party and members of the bodies concerned by the Court’s judgment (the DC and NCJ) quickly changed tack when they finally understood that the Court’s reasoning had to lead the referring court to find both the DC and NCJ as lacking basic guarantees of independence.

Another important aspect of the Court of Justice’s ruling, not widely noted, is that “the EU test for the ‘appearances’ of independence can now be applied by ‘old’ Supreme Court judges also to assess the independence of the Chamber for Extraordinary Control and Public Affairs, the second chamber set up in the same way, from scratch, by the ruling parliamentary majority”.

This led the ruling party, following their usual modus operandi, to rush a new piece of legislation via some acquiescent MPs although the wording of the bill and the explanatory memorandum attached to it make it obvious that the bill was drafted in the Ministry of Justice. The purpose of this modus operandi is evident: to circumvent public consultation and prevent a meaningful parliamentary and public debate.

According to the initial version of the bill, it would be a disciplinary offence inter alia to disregard a provision of Polish law in a situation where its non-compliance with the Constitution (which has been violated on multiple occasions by members of the ruling party, not least the Polish President) has not been not confirmed by the (captured) CT. To put it bluntly, the ruling party “wants to force judges not to assess the conformity of the laws passed by the current authority on their own or through legal questions to the Supreme Court or the CJEU, with the Constitution or European law, under the threat of a penalty”.

Other provisions of the bill are similarly alarming. For instance, the proposal aims to prohibit judges from discussing “political matters” or engaging in activities or omissions which would allegedly undermine the functioning of the judiciary or more generally the functioning of Polish authorities and Poland’s constitutional bodies. This was defended inter alia on the ground that French law would similarly restrict the freedoms of expression and of association of French judges. As demonstrated here, this is pure, and deliberately misleading nonsense.

Another worth noting provision, which is so typical of the institutional capture strategy pursued by Poland’s ruling party, aims to secure the speedy replacement of the current First President of Poland’s Supreme Court when her term of office expires next April. According to the contemplated new three-step procedure, the General Assembly of Supreme Court judges, whose task is to present candidates for this post to the President of the Republic, must consist of at least 84 out of 110 judges. If this quorum is not met, the second meeting must be held with a presence of 75 judges while the third must include not less than 32 of them. The bill also gives each judge of the Supreme Court a right to propose one candidate for the said position.

Bearing in mind that at least 43 nominees of the (unlawfully operating) neo-NCJ are members of the Supreme Court, the new procedure virtually guarantees that the post will fall to one of (the ruling party’s) chosen ones. And should the said procedure fail, which is unlikely but better safe than sorry as the saying goes, the President of the Republic will be given an exclusive right to appoint an interim First President. In other words, it is only a matter of time before the ruling party captures the Supreme Court as a whole as it has already captured the CT and the NCJ, but also the Supreme Administrative Court. Indeed, and for the first time since the beginning of the rule of law crisis, the bill also targets the Supreme Administrative Court with the Polish President being given once again the exorbitant power to decide the new rules of procedure of that court.

The bill contains so many outrageous provisions and laughable claims – for instance the bill claims to be mindful of the need to protect the principle of irremovability of judges by which one should of course understand the irremovability of individuals whose appointments are legally tainted due to the unlawful character of the NCJ – it is difficult to be concise. Space constraints precluding further details here, we will refer readers to Professor Marcisz’s analysis:

The provisions in the bill are all designed as an assault on judicial independence. They aim at crushing the opposition against previous illegal reforms among the judiciary. No need to discuss their details: res ipsa loquitur. The bill is blatantly unconstitutional but without a functioning Constitutional Court it does not matter much. It is also contrary to EU law. Not only does it infringe the judicial independence … but also the principle of primacy of EU law.

It was good therefore to see Vice-President Jourová making clear her multiple concerns in a letter to the Polish authorities on 19 December 2019. However, if there is anything the last four years should have taught the Commission is that Polish authorities are never acting in good faith and will not shy away from deliberately and repeatedly violating the principle of loyal cooperation in order to create faits accomplis. The Commission should face up to this unfortunate reality and stop wasting time by repeatedly trying to “engage in a constructive dialogue” with a repeated offender.

What is needed from the Commission is strong leadership via concrete deeds. In this respect, European Commission Vice President Věra Jourová and the European Commissioner for Justice Didier Reynders must be commended for their leadership. The Commission’s decision “to ask the Court of Justice to impose interim measures on Poland, ordering it to suspend the functioning of the Disciplinary Chamber of the Supreme Court” on the back of the pending infringement case 791/19 was an absolutely essential step to take at this point in time. As accurately noted by the Commission, Polish authorities’ refusal to comply with the ECJ ruling of 19 November 2019 and the subsequent ruling of the Supreme Court of 5 December 2019 has created “a risk of irreparable damage for Polish judges and increasing the chilling effect on the Polish judiciary”.

In addition, the Commission should stand ready to launch a fourth infringement action modelled on the infringement action initiated against the attempted purge of the Supreme Court as soon as the pending bill is adopted (and to shorten pre-litigation stage as much as possible so as not to let Polish authorities capture the Supreme Court in the meantime). As for national governments who care about the rule of law, they should systematically join pending proceedings and should the Commission fail to act promptly, they should stand ready to put their money where their mouth is and initiate rule of law infringement actions on the basis of Article 259 TFEU.

5. A fictional country or an EU Member State in 2020?

Imagine a country where national authorities (non-exhaustive list below):

This country is not a fictional one. This country is now Poland under the Soviet-style moniker of the mislabelled “Law and Justice” party.

As accurately observed on 16 October 2019 by the First President of Poland’s Supreme Court: “The end result is that the rule of law in Poland is not simply at risk: it is being erased.” 

Writing a year ago, we warned that the situation in Poland “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 is no longer a mere threat but a clear and present danger. Poland should now be considered, to borrow an expression from the financial world, as a country in default from a rule of law point of view. EU institutions and EU Member States will soon have to decide on the nature of their losses: Sacrifice their good relations with Polish national authorities or sacrifice the EU legal order.

Stalling for time would be irresponsible. On current trajectory, it is only a matter of time before Poland’s rule of law default eventually triggers a knock-on process of legal disintegration.

Transforming the EU in a freedom security and justice area: first Council ideas for a Strategic Agenda (2019-2024)

This is a joint discussion paper for both justice and home affairs submitted by the Croatian Presidency to the other delegations and to be debated at the Informal JHA Council in Zagreb on January 23rd-24th

Working  Session  I.

Looking ahead to the area of freedom, security and justice

In June 2019, the European Council adopted the Strategic Agenda 2019-2024 to guide the European Union’s work in the next five years. Its first priority, ‘protecting citizens and freedoms’, is particularly relevant for Justice and Home Affairs, as is its second priority on the ‘economic base’ and the ‘European model for the future’.

As indicated in the concluding section of the Strategic Agenda, the Council is to integrate these priorities into its work.

The first step in the implementation of the Strategic Agenda in the field of JHA was a reflection process initiated by the Romanian Presidency and further developed by the Finnish Presidency.

Several important debates have taken place at preparatory and ministerial level on the basis of reflection papers covering a wide range of JHA topics.

The Finnish Presidency wrapped up this important work in December 2019.

The outcome of this extensive process and the numerous projects that emerged from it are reflected in various documents addressed to all Member States and the Commission by our Finnish colleagues.

The Croatian Presidency has inherited the results of this reflection process and considers it essential to continue looking ahead and start preparing the ground for strategic guidelines under Article 68 TFEU2 which will take forward the Strategic Agenda and facilitate its implementation.

The first topic mentioned in the Strategic Agenda refers to fundamental rights, the protection of our democratic and societal models and the rule of law. Hence, a priority for our future work should be values and the rule of law.

The Strategic Agenda also mentions our common values as ‘the foundation of European freedom, security and prosperity’. Debates within the Council have demonstrated a growing   concern that respect for these values is being challenged.

This hampers the proper application of EU law and instruments that are based on mutual recognition.

The second priority could therefore be to find ways of restoring mutual trust.

The third topic developed in the Strategic Agenda relates to the integrity of our territory, understood to mean control of our borders, the development of a functioning migration policy, and the fight against terrorism and cross-border crime.

A third area for consideration could thus be protecting the integrity of our common European space.

Finally, the first part of the Strategic Agenda mentions the need to protect our societies from malicious cyber activities and acknowledges the critical importance of more cooperation, more coordination, more resources and more technological capacities.

In addition, the second part, related to economic development, refers to the digital transformation and the need to shape our policy in a way that embodies our societal values, promotes inclusiveness and remains compatible with our way of life. We would therefore suggest that the fourth priority should be to find ways of mastering artificial intelligence and new technologies.

To inform our discussion, you will find attached a thematic annex which covers, for ease of reference, most of the policy areas explored in the reflection process conducted by previous presidencies.

As we try to identify possible ways forward in our policy field, the Croatian Presidency suggests organising our discussions around these four cross-cutting issues and focusing our attention on how to organise our work, tools and structures to achieve our common objectives.

Ministers are invited to discuss how these four cross-cutting issues (values and rule of law, mutual trust, protecting our common European space, and new technologies) can be best addressed in order to deliver on the Strategic Agenda and the priorities developed in the thematic annex.

ANNEX

Developments in the area of freedom, security and justice for the period 2019-2024

Introduction

Following the Treaty on the European Union (the Maastricht Treaty, signed in 1992), justice and home affairs became one of the three pillars of the European Union.

The Schengen Agreement (1995) and the Treaty of Amsterdam (1997) emphasised the importance of cooperation and exchange of information among Member States’ justice and law enforcement authorities with the aim of creating an area of freedom, security and justice.

Moreover, the Tampere Programme (European Council conclusions of 1999) and the Hague Programme laid the foundations of the common European Justice and Home Affairs policy, including the cornerstones of cooperation with third countries and the future European judicial area.

Following the institutional changes introduced by the Treaty of Lisbon in 2009, the Member States adopted the Stockholm Programme (2009-2014), which highlighted the significance of European policies for European citizens, particularly in the following areas: rights of citizens, rule of law and justice, internal security (combating terrorism, law enforcement and disaster management, management of the external border and visa policy, migration and asylum (including integration) and the external dimension of the area of freedom, security and justice).

In its conclusions of June 2014, the European Council established, on the basis of the values defined in the Stockholm Programme, the strategic guidelines for legislative and operational planning in the area of freedom, security and justice (for the period 2014-2019).

On 20 June 2019, the European Council adopted the new Strategic Agenda 2019-2024, which, among other goals, emphasises the importance of protecting citizens and freedoms and promoting European interests and values on the global stage.

Accordingly, the Croatian Presidency recognises the importance of the prompt adoption of the strategic guidelines through which the Member States will pave the way to the implementation of further policies in the field of justice and home affairs, with the aim of creating an environment of the European Union as an area of freedom, security and justice.

Looking ahead to the area of freedom, security and justice

Criminal justice

The Strategic Plan for the Union (2019-2024) clearly confirms the aim of strengthening the fight against terrorism and cross-border crime, as well as improving cooperation.

The emphasis in this area will be on improving the implementation of existing instruments and filling gaps in the legislative framework where they exist.

Also, in the coming period it will be necessary to work on strengthening mutual trust between the Member States, which is key to successful judicial cooperation, as well as on developing networks and fostering coordination and synergies between them.

In the coming period, it is important to work on improving the existing acquis in the area of substantive criminal law, and to develop it cautiously, where necessary.

The EU’s ability to develop new acquis in this area must enable common solutions to common challenges, based on the real needs of the EU.

This is relevant to the extension of the competence of the EPPO as well.

Further development of victims’ rights should be approached in a systematic and holistic manner, taking into account the need to secure and/or strengthen all aspects of their protection.

Civil justice

In the coming period, it is necessary to continue with development of judicial cooperation in civil matters, with a focus on citizens, enabling faster and cheaper justice for citizens and businesses in the EU. The implementation of European Union instruments needs to be strengthened to this end.

Legal certainty and prosperity of citizens and businesses must be a guiding principle for future legislative initiatives in civil and commercial law at EU level.

In this sense, effective access to justice is a precondition for economic growth and development, and thus the development of society in general.

Accordingly, all new legislative developments must be based on the practical needs of citizens and businesses, and on evidence of clear added value.

Work needs to be done to strengthen the single market, whose backbone is formed by    SMEs, and it is necessary to secure fair competition and promote fairness and legal certainty in business relations.

It is also necessary for the EU to continue to protect citizens and families in cross-border situations.

One of the aspects of modernisation of the judiciary, which must respond to the needs and trends of modern times, is the further development and application of alternative dispute resolution, including online, bearing in mind its effectiveness, speed and acceptability to the parties.

Judicial training

Judicial training was recognised as an important prerequisite for establishing a unified European judicial culture and for the proper application of EU law.

Therefore, in the forthcoming period, it will be necessary to continue to invest effort both in expanding the content of training and in improving the quality of learning about EU law through sustainable funding, consistent programmes, an enlarged scope to include all judicial professions as well as, for example, familiarisation with the practice of European courts through internships, and further use of modern learning techniques and further linguistic training.

A modern judiciary

The progress and modernisation of the judiciary must, in the coming period, be a particular focus of our activities and be in line with the progress of the European Union as a whole.

The modernisation of the judiciary will make it more effective and also facilitate access to justice for both natural and legal persons. Therefore, the modernisation of the judiciary should continue to be developed through the additional improvement of IT tools/systems, and the introduction of the use of digital technologies into the acquis as a shared standard in its application and thus a key component of efficient digitalised justice systems in the EU.

It will also be necessary to work on interconnection and interoperability between Member States’ systems. Particular emphasis in this respect should be placed on the development of artificial intelligence.

Protection and promotion of common values, including fundamental rights, the rule of law and democratic values

Ensuring continuity in protecting the fundamental values of the European Union – respect for human dignity and human rights, freedom, democracy, equality and the rule of law – will continue to be crucial to the democratic functioning of the European Union and the protection of all its citizens, as well as the reputation and acknowledgement of the European Union in the world.

In this context, the European Union, with the ongoing task of upholding and promoting these values, must be capable and respond to threats to them within the European Union, always in an effort to maintain the unity of the European Union and its Member States.

In addition, the phenomenon of hate speech and large-scale disinformation will have to be addressed, and further efforts should be made to protect vulnerable groups.

The external dimension of the judiciary

Co-operation with third countries and international organisations is important for a number of reasons. Namely, the European Union can, through the external dimension of the judiciary, contribute to a more uniform legal framework in the international setting, which contributes to the overall economic progress of the European Union, the successful fight against crime and terrorism, and also the protection of human rights.

Furthermore, the European Union can be an ‘exporter’ of its own values, many of which are reflected in the judiciary – for example, the independence of the judiciary. The latter is particularly important in relations with candidate countries for EU membership.

Efficient control of external borders and a return to the proper functioning of the Schengen area

Strong and reliable external border protection, efficient return of irregular migrants and strict implementation of other relevant tools contributing to successful and comprehensive migration management are the key prerequisites for a return to a properly functioning Schengen area and for the overall security of the European Union.

With the aim of meeting these goals, the Member States need to invest further efforts to establish a fully operational European Border and Coast Guard, which should reach its target capacity of 10 000 border guards as soon as possible, and at the latest by 2024.

In parallel, more determination is required in order to implement the status agreements in the countries of south-east Europe, which will enable the exercise of the Agencies’ external competences in this region.

Together with the full operationalisation of the European Border and Coast Guard and  efficient returns, Member States need to continue work on efficient and timely implementation of the interoperability legislative framework, ensuring that the synergy of all these measures will lead to well-protected external borders and subsequent restoration of a genuine Schengen area. In doing so, the Member States should strive to improve their cooperation with third countries and invest greater effort in restoring mutual trust.

A comprehensive and functional migration policy

Proactive migration management calls for comprehensive action-taking on all levels and a truly European approach based on responsibility and solidarity. The focus must be on all   migratory routes, particularly land routes, which directly influence the security of the EU external border.

Establishment of a functional, humane and resilient asylum system, as an inevitable part of a comprehensive migration policy, should be based on joint obligations and fair burden-sharing among the Member States. Such an approach is the only way for the Member States to fulfil their obligations towards those who are truly in need of international protection.

It is also crucial in this context to establish a system for the quick return of those who have no right to stay in the European Union. Thus, the list of safe third countries and the list of safe countries of origin should be urgently adopted.

Along with these measures, establishing pathways for legal migration to the European Union is becoming increasingly important. Legal manners of arrival, including resettlement, reduce the incentive to use smuggling routes to Europe, protect human life and dignity and have multiple benefits for our societies and economies.

Therefore, our cooperation with partner countries should be the main tool for tackling the root causes of illegal migration, providing assistance to refugees, managing mixed migration flows, combating smuggling and document fraud, ensuring efficient readmissions and providing tailor-made legal pathways.

A Europe that protects a safe Union

The security environment of the European Union has changed drastically in the past few years. Therefore, we need to aim to build an efficient and genuine Security Union, capable of responding to the threats of the new age and protecting our children, citizens and societies.

The main challenges we need to deal with are those of a cross-border nature, such as terrorism, organised crime and cybercrime, but also other forms of unacceptable behaviour that could undermine our common security and the values of our societies – child sexual abuse, hate speech, radicalisation leading to violent extremism and intolerance.

In the years to come, no efforts should be spared in tackling the dissemination of terrorist content and child sexual abuse material online, protecting public spaces and addressing the proliferating challenge of hybrid threats that attack the heart of our democracies and endanger our critical infrastructure.

Thus, along with the swift implementation of legislative acts in the field of border protection, exchange of data among law enforcement bodies, firearms, explosives, financing of terrorism and interoperability, we have to strive for adequate legal and technological solutions for the use of artificial intelligence and other new technologies that take into account the protection of personal data and privacy, meet the highest standards of security of information systems, and are defined by ethical boundaries.

Finding the right answers to such a wide spectrum of security challenges should also be complemented by efforts to increase the EU’s resillience against both natural and man-made disasters. Unfortunately, the European Union is facing a great number of frequent and complex disasters which cause loss of human lives and other adverse consequences for our citizens, economies, communities and environment.

It is therefore crucial to keep on building capacities at both national and EU level in order to prevent or to decrease the possibility of disasters. However, being aware that not all disasters can be prevented, we need to continue to work on strengthening our national and common EU reactive capacities in order to be able to save as many lives as possible and to recover from the consequences of various disasters in the shortest possible period.

Investing in our capacities to face the security challenges of the digital age

Responding properly and in a timely manner to such diverse and complex security challenges requires that our police, border, asylum and customs services are well-equipped, and that the legal framework in place provides for their successful mutual cooperation, as well as for cooperation with the relevant EU agencies.

Therefore, in the next five years, Member States will work hand in hand in order to successfully implement the adopted legal acts in a timely manner and to fill legal gaps where they exist. To this end, the swift adoption and implementation of the proposed Regulation on preventing the dissemination of terrorist content online is a key priority.

Furthermore, Member States will insist that sufficient EU funds within the next multiannual financial framework will be allocated to upgrading the technical capabilities, human resources and expertise of all relevant actors whom we expect to play a vital role in ensuring our security in the digital age. It is necessary to ensure practical uptake of the outcomes of research and innovation, and thus coordination between Horizon Europe and other European financial programmes. Due to the economies of scale and the need to provide all EU Member States with the same level playing field, it is advisable to opt for concentrated investments related to the innovation and development of artificial intelligence in the domain of security and migration to make the outcome accessible and available to all Member States.

Therefore, the JHA Agencies, in particular the European Innovation Lab within Europol, should play a central role, taking into account the concentrated knowledge, expertise and secure environment at their disposal. Furthermore, private business should be involved throughout the process, and public-private partnerships should be promoted.

La nuova Guardia di frontiera e costiera europea (Regolamento (UE) 2019/1896): un primo esempio di amministrazione integrata nazionale/europea ?

(english version will follow)

di Emilio De Capitani

già Segretario (1998-2011) della Commissione Libertà Civili (LIBE) del Parlamento europeo

Premessa

Il 4 dicembre 2019 entra in vigore Regolamento (UE) 2019/1896 relativo alla guardia di frontiera e costiera europea, il cui snodo centrale è l’Agenzia europea comunemente nota come “Frontex”. Questa Agenzia aveva visto la luce nel 2004 ([1]) come semplice struttura di supporto ([2]) per gli Stati membri che contribuivano anche con uomini e mezzi quando si fosse reso necessario intervenire anche con team di rapido intervento ([3]) in aiuto di uno stato membro la cui frontiera esterna fosse sottoposta ad una forte pressione migratoria. Già all’entrata in vigore del Trattato di Lisbona il mandato dell’Agenzia venne esteso ([4]) da un lato prevedendo maggiori risorse e il distacco di personale degli Stati membri in modo più o meno permanente e dall’altro incaricando l’agenzia della gestione di un sistema europeo di sorveglianza delle frontiere (Eurosur) che poteva fare affidamento sulle informazioni provenienti dagli Stati membri, da Stati terzi e da altre agenzie europee e da satellite ([5]).

Anche dopo queste modifiche l’Agenzia rimaneva comunque una struttura con funzioni di intervento di emergenza come una sorta di compagnia dei vigili del fuoco (Fire Brigade) da attivare solo nel momento del bisogno e a richiesta degli stati interessati. Tuttavia a partire dal 2011 l’area di Schengen viene scossa da flussi migratori sempre più consistenti e per uscire dalla crisi l’Unione europea aggiorna nel 2013 il sistema di governance di Schengen con meccanismi di valutazione del controllo delle frontiere molto più stringenti [6] e modifiche al Codice delle frontiere Schengen () prevedendo procedure di emergenza che possono portare anche al ristabilimento dei controlli alle frontiere interne dell’area. In questo quadro il ruolo di Frontex diventa determinante e permanente per controllare la tenuta delle frontiere.

Nel 2014 il mandato di Frontex viene anche esteso[7] alla gestione degli interventi di search and rescue che dovessero rendersi necessari nel corso delle operazioni di sorveglianza anche nelle zone pre-frontiera (quindi anche nelle acque internazionali)

Il passaggio dal ruolo di “Fire Brigade” ad Agenzia quale snodo di un sistema che collega tra loro il livello nazionale con quello sovranazionale avviene con Regolamento (UE) 2016/1624 del 14 settembre 2016 relativo alla guardia di frontiera e costiera europea dove per la prima volta viene affrontato il tema della gestione integrata delle frontiere esterne cui fa riferimento il Trattato (art. 77 par. lett C).

Il Regolamento si rivela particolarmente ambizioso ma, come spesso avviene nel processo decisionale europeo, lascia diverse questioni in sospeso o a metà sia per quanto riguarda la ripartizione di competenze tra livello statale ed europeo, che per quanto riguarda il quadro strategico, il rispetto dei diritti fondamentali, e le risorse umane e finanziarie.

Per risolvere queste questioni nel Settembre 2018 la Commissione ha presentato una ambiziosa proposta che il Parlamento e il Consiglio hanno trattato a tempo di record ([8]) tanto da concludere un accordo in prima lettura su un testo di compromesso approvato dal Parlamento europeo il 17 aprile 2019, praticamente sul finire della legislatura.

Le innovazioni del Regolamento (UE) 2016/1896

I 124 articoli del nuovo Regolamento descrivono per la prima volta un quadro organico della prima forma di amministrazione integrata della protezione delle frontiere esterne dell’Unione a livello sovranazionale e nazionale, rispondendo per la prima volta in modo tutto sommato coerente alle critiche che erano state presentate ai testi legislativi precedenti e alle richieste della stessa Frontex. Dalla lettura del testo appare evidente che molte disposizioni sono state praticamente dettate da Frontex stessa, che ha così inteso darsi una base giuridica esplicita a livello di diritto secondario dell’Unione dotandosi di una specie di testo unico che le permette di rispondere al mandato conferitole.

I punti salienti della riforma sono i seguenti.

  1. Sono definite le componenti della gestione europea integrata delle frontiere (art. 3). Questa nozione è evocata dall’art.77 del TFUE ma ha preso forma nelle sue componenti essenziali nella riforma del 2016, confermata e resa più coerente dal testo in questione.
  2. Vengono integrati i livelli di amministrazione sovranazionale e nazionale: la guardia di frontiera e costiera europea sarà costituita dall’Agenzia e dalle autorità nazionali preposte alla gestione delle frontiere, ivi incluse le guardie costiere (nella misura in cui svolgono compiti di controllo di frontiera), così come dalle autorità nazionali responsabili dei rimpatri (art. 4). La gestione europea integrata delle frontiere è dunque una responsabilità condivisa tra l’Agenzia e le autorità nazionali preposte alla gestione delle frontiere. Quindi gli Stati membri mantengono la responsabilità primaria della gestione delle loro sezioni di frontiera esterna, ma il quadro di riferimento per l’azione nazionale è ora definito a livello europeo (art. 7).
  3. In coerenza con i due punti precedenti viene previsto un Ciclo politico strategico pluriennale per la gestione europea integrata delle frontiere. Nel Regolamento del 2016 si evocava una strategia tecnica adottata dal Consiglio di amministrazione di Frontex, che difficilmente avrebbe potuto essere considerata vincolante per i governi e parlamenti nazionali. Nel testo attuale la strategia pluriennale sarà adottata dalla Commissione (art. 8) con un qualche coinvolgimento del Parlamento europeo (e, si spera, almeno indirettamente dei Parlamenti nazionali) e ciò è conforme alla giurisprudenza “Meroni”, che richiede che le misure europee debbano essere adottate dalle istituzioni europee mentre le organizzazioni derivate come le agenzie possono legittimamente adottare solo misure che con comportano discrezionalità politica (quali sono, evidentemente le Strategie).
  4. Molto correttamente si prevedeche l’Agenzia risponda “del proprio operato al Parlamento europeo e al Consiglio”, cioè alle istituzioni che l’hanno creata e non alla sola Commissione come la maggior parte delle altre Agenzie europee. Mutatis mutandis, questo prefigura un rapporto simile a quello che negli Stati Uniti è previsto per le Agenzie federali, che sono chiamate a rispondere anche davanti al Congresso.
  5. L’interazione fra livello sovranazionale e nazionale è inquadrata dalle norme relative alla pianificazione integrata con piani di sviluppo delle capacità nazionali in modo da assicurare un livello di efficienza comparabile in tutte le sezioni di frontiera (art. 9) e, molto opportunamente, gli articoli 11 e 12 prevedono lo scambio tempestivo e completo di informazioni tra livello nazionale ed europeo come espressione del principio di cooperazione leale. Può sembrare ovvio ma questo tuttora non avviene o avviene in forma limitata in altri settori di cooperazione, come nel caso della cooperazione giudiziaria e di polizia in campo penale. 
  6. Lo scambio e il trattamento delle informazioni tra livello nazionale e sovranazionale è l’oggetto degli articoli da 11 a 23, dove è disciplinato anche il sistema informativo EUROSUR, che diviene ormai l’hub di riferimento di una rete tanto informatica quanto di corrispondenti che si può considerare il “sistema nervoso” della nuova Guardia di frontiera europea. Le norme possono sembrare troppo dettagliate ma sono di importanza fondamentale perché diventeranno il tessuto connettivo e l’inevitabile complemento di altri sistemi di informazione come il Sistema informativo Schengen e i sistemi ETIAS, VIS e EURODAC, che saranno resi progressivamente interoperabili. Non è quindi azzardato ritenere che la futura Guardia costiera e di frontiera europea e la stessa Frontex si candidano a diventare il “cervello” al quale dovranno affluire tutte le informazioni, facendone tra l’altro, au passage, il più efficiente centro di intelligence europeo (con buona pace di Europol, che pure è chiamato a cooperare con l’Agenzia).
  7. Questa vocazione della nuova Guardia di frontiera europea a divenire il primo sistema integrato di polizia delle frontiere e intelligence a livello europeo é confermato dagli articoli 24-28 sui “quadri situazionali” (europeo, nazionali e specifici) che saranno alimentati dai dati raccolti dai databases europei, da quelli nazionali e da altre fonti.
  8. Gli articoli da 29 e 35 prevedono le misure da prendere una volta identificati i rischi nelle diverse sezioni della frontiera esterna UE, che ciascun paese deve tenere sotto controllo nell’interesse proprio e degli altri paesi UE (oltre che dei paesi terzi limitrofi). Ogni sezione di frontiera viene classificata in funzione del livello di vulnerabilità e del possibile rischio che esso rappresenta e delle misure da prendere per fronteggiarlo. Da notare che le informazioni sono raccolte anche da funzionari dell’Agenzia (per ovviare a possibili deficienze a livello nazionale) e che, in caso di problemi, il Direttore può raccomandare misure da prendere d’urgenza dall’amministrazione nazionale. Se questa non collabora è già previsto un crescendo di pressioni anche a livello della Commissione e del Consiglio che possono portare anche al ripristino dei controlli alle frontiere interne e quindi di fatto all’isolamento del paese in questione. Questa misura è già prevista in casi estremi dal codice di frontiere Schengen e il fatto di averla parzialmente ripresa anche in questo Regolamento crea una oggettiva necessità di coordinamento fra i due testi legislativi e i corrispondenti sistemi di valutazione dei rischi.
  9. Gli articoli da 36 a 47 coprono le azioni congiunte dell’Agenzia con le amministrazioni dei paesi membri e, se del caso con paesi terzi. È importante notare il livello di dettaglio di queste norme, che sembrano dettate dall’esperienza sul campo e dal desiderio di Frontex di superare possibili intoppi e fraintendimenti sui ruoli rispettivi. Importante è il contenuto delle regole di ingaggio da concordare con gli stati membri interessati prima di ogni operazione anche perché tali regole indicano anche il quadro legislativo di riferimento, specie per le operazioni in acque internazionali.
  10. Gli articoli da 48 a 53 riguardano il ruolo dell’Agenzia nelle operazioni di rimpatrio condotte per conto degli Stati membri, che (viene ribadito più volte) sono i soli (?) a poter prendere queste decisioni. Resta da verificare il possibile impatto dei ripetuti riferimenti al rispetto delle norme a tutela delle persone derivanti dal diritto internazionale e dal diritto europeo (cioè dalla Carta e dal diritto secondario in materia di asilo/immigrazione irregolare) in un contesto nel quale molti paesi membri dell’UE non rispettano i diritti fondamentali e dunque Frontex non potrà fondare la propria azione su una presunzione assoluta di legittimità delle decisioni nazionali di rimpatrio.
  11. L’articolo 54, che definisce il volume e le caratteristiche del personale permanente operativo, è una delle innovazioni principali del nuovo Regolamento. Il personale permanente si distingue in quattro categorie: le guardie di frontiera, le scorte per i rimpatri, gli esperti in materia di rimpatrio e altro personale competente, facente parte del corpo permanente della guardia di frontiera e costiera europea.[9]
  12. Lo stesso art. 54, insieme all’art. 82, definisce anche le condizioni per l’esercizio di poteri operativi da parte di personale dell’Agenzia. Tale esercizio deve essere previamente autorizzato dallo Stato membro o dello Stato terzo interessato ma può riguardare anche attività sensibili (alcune delle quali possono richiedere il porto d’armi[10]). Per quanto riguarda il diritto applicabile nell’esercizio di queste attività da funzionari della Guardia di frontiera europea[11], l’art. 82 offre indicazioni generali, stabilendo che “Lo svolgimento dei compiti e l’esercizio dei poteri da parte dei membri delle squadre, in particolare quelli che richiedono poteri esecutivi, sono soggetti all’autorizzazione dello Stato membro ospitante sul suo territorio nonché al diritto dell’Unione, nazionale o internazionale applicabile, in particolare al regolamento (UE) n. 656/2014, quale descritto nel piano operativo di cui all’articolo 38. Nello svolgimento dei loro compiti e nell’esercizio delle loro competenze, i membri delle squadre assicurano pienamente il rispetto dei diritti fondamentali e osservano il diritto dell’Unione e quello internazionale, e la legislazione nazionale dello Stato membro ospitante”.
  13. Il fatto è che le norme vigenti in materia sono nazionali o comunque rivolte agli Stati membri e non anche alle istituzioni europee stesse, cosicché ci si potrebbe chiedere se non sia necessaria una disciplina specifica (come è il caso per la protezione dei dati o per le norme in campo penale applicabili dall’EPPO). La questione rischia di finire sul tavolo di un giudice anche perché molto opportunamente gli articoli 84 e 85 prevedono la responsabilità civile e penale dei funzionari nell’esercizio di queste funzioni.
  14. Il Regolamento prevede anche una serie articolata di norme in materia di risorse operative proprie dell’Agenzia, di formazione del proprio personale, di relazioni internazionali, di protezione dei dati che vengono a costituire una sorta di spazio amministrativo parallelo che non sarà semplice monitorare tanto da parte delle stesse istituzioni che dalla società civile e dagli stessi Parlamenti nazionali (che vengono per la prima volta citati in questo nuovo contesto come era auspicabile visto il ruolo che è loro riconosciuto dal Trattato in materia di controllo di Europol e Eurojust).
  15. Il richiamo ai diritti fondamentali è un tema ricorrente in tutto il Regolamento e in tutte le disposizioni di portata operativa con riferimento non solo ai principi riconosciuti dagli articoli 2 e 6 TUE e dalla Carta UE, ma più in particolare ai seguenti diritti: “il rispetto per la dignità umana, il diritto alla vita, la proibizione della tortura e di trattamenti o pene inumani o degradanti, la proibizione della tratta di esseri umani, il diritto alla libertà e alla sicurezza, il diritto alla protezione dei dati personali, il diritto di accesso ai documenti, il diritto di asilo, la protezione contro l’allontanamento e l’espulsione, il divieto di respingimento, il divieto di discriminazione e i diritti del minore”. A tutela di questi diritti il nuovo Regolamento va molto oltre quanto previsto nelle versioni del 2011 e del 2016, prevedendo una procedura di denuncia da parte di privati per eventuali violazioni all’Agenzia e un Responsabile della tutela dei diritti fondamentali, coadiuvato da almeno quaranta collaboratori con il compito di monitorare anche le singole operazioni dell’Agenzia e di provvedere a un reporting dettagliato.

Prime conclusioni

Il Regolamento (UE) 2019/1896 è certamente l’intervento più ambizioso e articolato approvato dai co-legislatori in materia di controllo delle frontiere nel corso degli ultimi anni. Nonostante la base giuridica prescelta siano gli articoli 77 e 79 (controllo delle frontiere e lotta all’immigrazione irregolare), la portata e le ambizioni del Regolamento sono molto più ampie e toccano anche la sicurezza interna e indirettamente quella esterna. Il passaggio di Frontex dagli attuali 1500 funzionari (nel 2004 erano 170) a 10 mila fa di questa Agenzia una struttura esecutiva assolutamente eccezionale e “fuori scala” rispetto agli altri organi esecutivi con compiti operativi dell’Unione, incluso il Servizio europeo esterno.

Se si pensa poi che la proposta della Commissione è stata accettata dal Consiglio europeo senza neppure una previa valutazione di impatto, non si può che rivolgere un plauso al Parlamento europeo, che nello spazio di pochi mesi ha reso il testo “presentabile”, colmando molte delle lacune della legislazione precedente (compreso il Regolamento del 2016). L’impresa era sulla carta molto ardua. Si può discutere sul fatto che alcune delle soluzioni proposte sotto forma di “vademecum”, “handbook” e “guidelines” siano sufficientemente solide dal punto di vista giuridico per superare il controllo del giudice a livello nazionale e europeo. Per questa ragione è probabile che nuovi interventi legislativi si renderanno necessari. Tuttavia, è molto difficile che si possa tornare indietro perché questo testo, secondo la migliore tradizione della cooperazione Schengen, risponde ad esigenze operative che decine di migliaia di funzionari nazionali in tutti i paesi membri ritengono necessarie e che saranno quindi difese da questi in sede nazionale ed europea come prima forma di effettiva solidarietà operativa e di amministrazione integrata a livello nazionale ed europeo. È auspicabile che un simile approccio, in grado di coniugare le ragioni operative e di solidarietà amministrativa con la tutela – almeno in principio – dei diritti fondamentali, faccia scuola e che venga assimilato dal nuovo Parlamento europeo e dai parlamenti nazionali, oltreché dalla società civile, in passato giustamente molto critica verso norme europee meno garantiste.

D’altro canto, proprio la società civile e i parlamenti sono chiamati a un compito di monitoraggio che si preannuncia tanto decisivo quanto impervio. Basti considerare quanto emerge dalla recentissima pronuncia del Tribunale nel caso Izuzquiza et al. c. Frontex, dove, da un lato, si rileva che l’Agenzia non si è ancora dotata di un registro dei documenti, pur richiesto dal Regolamento (CE) n. 1049/2001 e, dall’altro, si chiarisce che anche le informazioni dei database interni potranno essere oggetto di richieste d’accesso da parte dei cittadini. Il rischio è che le nuove competenze attribuite a Frontex amplino a dismisura la possibilità di invocare la confidenzialità delle informazioni per ragioni di sicurezza pubblica. L’effettività del controllo sulle operazioni di Frontex sarà, poi, ancora più problematica quando l’Agenzia parteciperà – come il nuovo Regolamento consente – a missioni condotte nel quadro della sicurezza esterna dell’Unione, giacché a quelle missioni si applica un regime giuridico particolarmente restrittivo, che preclude allo stesso Parlamento europeo l’accesso a talune informazioni. Si tratta di una tema che, per la sua sensibilità, richiederà analisi accurate, ma averlo evocato è sufficiente a rendere l’idea della complessità delle sfide giuridiche e istituzionali che ci attendono.


[1] Regolamento (CE) n. 2007/2004 del Consiglio del 26 ottobre 2004 che istituisce un’Agenzia europea per la gestione della cooperazione operativa alle frontiere esterne degli Stati membri dell’Unione europea.

[2] Già all’epoca vi era chi, nel Parlamento europeo, chiedeva la creazione di un corpo di guardie di frontiere europee e la questione era stata discussa in Consiglio sulla base di uno studio di fattibilità preparato dalla delegazione italiana, ma il progetto sembrava troppo ambizioso per quei tempi.

[3] Regolamento (CE) n. 863/2007 del Parlamento europeo e del Consiglio, dell’11 luglio 2007 che istituisce un meccanismo per la creazione di squadre di intervento rapido alle frontiere e modifica il regolamento (CE) n. 2007/2004 del Consiglio limitatamente a tale meccanismo e disciplina i compiti e le competenze degli agenti distaccati.

[4] Regolamento (UE) n. 1168/2011 del Parlamento europeo e del Consiglio del 25 ottobre 2011 recante modifica del regolamento (CE) n. 2007/2004 del Consiglio che istituisce un’Agenzia europea per la gestione della cooperazione operativa alle frontiere esterne degli Stati membri dell’Unione europea.

[5] Regolamento (UE) n. 1052/2013 del Parlamento europeo e del Consiglio del 22 ottobre 2013 che istituisce il sistema europeo di sorveglianza delle frontiere (Eurosur).

[6] Vedi REGOLAMENTO (UE) N. 1053/2013 DEL CONSIGLIO del 7 ottobre 2013 che istituisce un meccanismo di valutazione e di controllo per verificare l’applicazione dell’acquis di Schengen e che abroga la decisione del comitato esecutivo del 16 settembre 1998 che istituisce una Commissione permanente di valutazione e di applicazione di Schengen

[7] Vedi  REGOLAMENTO (UE) N. 656/2014 del 15 maggio 2014 recante norme per la sorveglianza delle frontiere marittime esterne nel contesto della cooperazione operativa coordinata dall’Agenzia europea per la gestione della cooperazione operativa alle frontiere esterne degli Stati membri dell’Unione europea

[8] I negoziati si sono tenuti in particolare nel corso di cinque riunioni interistituzionali (detti “triloghi”) il 27 Febbraio, il 12, 21, 26 e 28 marzo 2019.

[9] Le quattro categorie sono cosi’ descritte:

« a)         categoria 1: personale statutario impiegato come membri delle squadre nelle aree operative ai sensi dell’articolo 55, e personale responsabile del funzionamento dell’unità centrale ETIAS;

b)           categoria 2: personale distaccato a lungo termine presso l’Agenzia dagli Stati membri e facente parte integrante del corpo permanente ai sensi dell’articolo 56;

c)            categoria 3: personale degli Stati membri pronto per essere messo a disposizione dell’Agenzia per un impiego di breve durata quale parte integrante del corpo permanente ai sensi dell’articolo 57; e

d)           categoria 4: riserva di reazione rapida composta da personale degli Stati membri pronto per essere impiegato, ai sensi dell’articolo 58 ai fini di interventi rapidi alle frontiere ai sensi dell’articolo 39.”

[10] Art 82 “(8).   I membri delle squadre, compresi i membri del personale statutario, sono autorizzati per i pertinenti profili dallo Stato membro ospitante allo svolgimento di compiti durante l’impiego che richiedano l’uso della forza, inclusi il porto e l’uso delle armi di ordinanza, delle munizioni e dell’equipaggiamento, e sono soggetti al consenso dello Stato membro di appartenenza o, per il personale statutario, dell’Agenzia. L’uso della forza, compreso il porto e l’utilizzo di armi d’ordinanza, munizioni ed equipaggiamento, è esercitato ai sensi della legislazione nazionale dello Stato membro ospitante e in presenza delle guardie di frontiera dello Stato membro ospitante. Lo Stato membro ospitante può, con il consenso dello Stato membro di appartenenza o, se del caso, dell’Agenzia, autorizzare i membri delle squadre a usare la forza sul suo territorio in assenza di guardie di frontiera dello Stato membro ospitante.

Lo Stato membro ospitante può vietare il porto di determinate armi di ordinanza, munizioni ed equipaggiamento, a condizione che la sua normativa applichi il medesimo divieto alle proprie guardie di frontiera o al personale quando impegnato in compiti attinenti ai rimpatri. Prima dell’impiego dei membri delle squadre, lo Stato membro ospitante informa l’Agenzia in merito alle armi di ordinanza, alle munizioni e all’equipaggiamento autorizzati e alle relative condizioni d’uso. L’Agenzia mette tali informazioni a disposizione degli Stati membri.

(9).   Le armi di ordinanza, le munizioni e l’equipaggiamento possono essere usati per legittima difesa personale o per legittima difesa dei membri delle squadre o di altre persone ai sensi della legislazione nazionale dello Stato membro ospitante, in linea con i pertinenti principi del diritto internazionale in materia di diritti umani e con la Carta”.

[11] Secondo l’art. 54 queste sono:

« a)         verifica dell’identità e della cittadinanza delle persone, compresa la consultazione delle pertinenti banche dati nazionali e dell’Unione;

b)           autorizzazione all’ingresso, se le condizioni stabilite all’articolo 6 del regolamento (UE) 2016/399 sono soddisfatte;

c)            respingimento ai sensi dell’articolo 14 del regolamento (UE) 2016/399;

d)           apposizione di timbri sui documenti di viaggio ai sensi dell’articolo 11 del regolamento (UE) 2016/399;

e)            rilascio o rifiuto di visti alla frontiera ai sensi dell’articolo 35 del regolamento (CE) n. 810/2009 del Parlamento europeo e del Consiglio e inserimento dei corrispondenti dati nel Sistema di Informazione dei visti;

f)            sorveglianza di frontiera, compreso il pattugliamento tra valichi di frontiera, allo scopo di impedire l’attraversamento non autorizzato della frontiera, di lottare contro la criminalità transfrontaliera e di adottare misure contro le persone entrate illegalmente, ivi compresi l’intercettazione o il fermo;

g)           registrazione nell’Eurodac delle impronte digitali delle persone fermate in relazione all’attraversamento irregolare di una frontiera esterna, ai sensi del capo III del regolamento (UE) n. 603/2013 del Parlamento europeo e del Consiglio;

h)           contatti con i paesi terzi ai fini dell’identificazione e dell’acquisizione di documenti di viaggio per i rimpatriandi;

i) scorta di cittadini di paesi terzi cui si applicano procedure di rimpatrio forzato.”

The European Area of Freedom, security and Justice : has it lost its compass ?

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

CONFERENCE : 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

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.” 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.

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

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

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. 

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

ORIGINAL PUBLISHED ON VERFASSUNGSBLOG
( 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.