Category: 2. Values & principles of the European Union

ORIGINAL PUBLISHED ON EU LAW BLOG  ON OCTOBER 31, 2016 (EMPHASIS ARE ADDED)

By Laurens Ankersmit

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Alicia Hinarejos, Downing College, University of Cambridge; author of The Euro Area Crisis in Constitutional Perspective 

One of the features of the response to the euro area crisis has been the resort to intergovernmental arrangements that largely avoid judicial and parliamentary control at the EU level. The paradigmatic example has been the European Stability Mechanism(ESM), created by the euro area countries in order to provide financial assistance to countries in difficulties, subject to conditionality. The ESM was created through the adoption of an international agreement, the ESM Treaty; it is an intergovernmental mechanism created outside the framework of the EU, but with significant links to it. Most importantly, the ESM ‘borrows’ two EU institutions, namely the Commission and the European Central Bank (ECB), in order to carry out its functions. (Those two bodies, along with the International Monetary Fund, constitute the so-called ‘Troika’ which oversees the controversial bail-out processes).

The nature of the ESM and the way it operates raises important questions regarding judicial protection. As mentioned above, ESM financial assistance is granted after strict conditions have been negotiated and agreed in a Memorandum of Understanding. These conditions typically require the Member State in receipt of assistance to adopt ‘austerity’ reforms that have an impact on its citizens—understandably, these citizens may wish to challenge the validity of these conditions, often questioning their compliance with the EU Charter of Fundamental Rights.

In Pringle, the Court stated that Member States were not within the scope of application of the Charter of Fundamental Rights when creating the ESM, or presumably when acting within its framework. This meant that their actions could not be reviewed for accordance with the Charter (although they can still be reviewed in national courts for compliance with purely national law, or in the European Court of Human Rights for compliance with that treaty). This, however, left open the question of whether, or in what form, the Charter applied to the EU institutions—the Commission and the ECB—when operating under the ESM. This is the question that the Court of Justice had to answer in the Cyprus bailout cases (Ledra Advertising and Mallis).

Cyprus wrote to the Eurogroup in 2012 to request financial assistance, and it was in receipt of ESM assistance from 2013 until 2016. The country had to recapitalize its biggest bank and wind down its second. The Memorandum of Understanding stipulated that bondholders and depositors would bear part of the cost. As a result, the applicants suffered substantial financial losses and turned to the EU courts: first to the General Court, and then on appeal to the Court of Justice. They were challenging the validity of the Memorandum of Understanding (Ledra Advertising), as well as a Eurogroup statement that referred to the conditions attached to the bailout (Mallis); they also asked for damages. In their view, the involvement of EU institutions—the Commission and the ECB—in the adoption of these measures meant that it should be possible for individuals to challenge their validity at the EU level; they also argued that these institutions’ involvement should trigger the EU’s non-contractual liability.

The General Court dismissed all complaints as inadmissible. It decided that neither the Memorandum of Understanding nor the Eurogroup statement could be the subject of an action for annulment; the former because it is not a measure adopted by an EU institution, the latter because it is not intended to produce legal effects with respect to third parties. It considered that the involvement of the Commission and the ECB in the adoption of these measures was not enough to attribute authorship to them, or to trigger the non-contractual liability of the Union.

The Court of Justice agreed, in part, with the General Court: neither the Eurogroup statement (Mallis) nor the Memorandum of Understanding (Ledra Advertising) can be the object of an action for annulment. The Court insisted again on its finding in Pringlethat ESM acts fall outside the scope of EU law; the involvement of the Commission and the ECB does not change this, and is not enough to attribute authorship of these acts to them for the purposes of judicial review.

Yet the Court goes on to reveal a twist in Ledra Advertising: even if they are not its authors, the involvement of the Commission and the ECB in the adoption of an ESM Memorandum of Understanding may be unlawful, and thus able to trigger the non-contractual (damages) liability of the EU. The Commission, in particular, retains its role as ‘guardian of the Treaties’ when acting within the ESM framework. As a result, the Commission should not sign an ESM act if it has any suspicions as to its accordance with EU law, including the Charter.

The Court repeated the usual rules for the EU institutions to incur non-contractual liability: (a) they must have acted unlawfully, (b) damage must have occurred, and (c) there must be a causal link between the unlawful act and the damage. Not just any unlawful act gives rise to damages liability: there must be ‘a sufficiently serious breach of a rule of law intended to confer rights on individuals’. While the right to property enshrined in the Charter was a ‘rule of law intended to confer rights on individuals’, that right is not absolute: Article 52 of the Charter allows interference with some Charter rights. Applying that provision, the Court came to the conclusion that the measures contained in the Memorandum did not constitute a disproportionate and intolerable interference with the substance of the applicants’ right to property, given ‘the objective of ensuring the stability of the banking system in the euro area, and having regard to the imminent risk of [greater] financial losses’.

So individuals can challenge the EU institutions’ bailout actions by means of an action for damages (non-contractual liability), but not by means of an annulment action. It is useful to remember that the rules on access to the EU courts as regards those two types of remedy are quite different. The standing rules are more liberal for damages actions: it’s sufficient to allege that damages have been suffered as a result of an unlawful act by the EU, whereas it’s much harder to obtain standing to bring annulment actions. The time limits are more liberal too: individuals have five years to bring damages cases, but only two months to bring actions for annulment. On the other hand, the threshold to win cases is much higher for damages cases: any unlawfulness by the EU institutions leads to annulment of their actions, but only particularly serious illegality gives rise to damages liability.

In any case, we know from the Court’s ruling that breaches of at least some Charter provisions within the ESM framework could potentially give rise to damages liability. In the anti-austerity context, it should be noted that social security and many social welfare claims fall within the scope of the right to property, according to the case law of the European Court of Human Rights. In the case at stake, the Court did not discuss the proportionality of the interference with the applicant’s rights at much—or any—length, but it is clear that future applicants will face an uphill struggle.

On the whole, Ledra Advertising is a welcome change from other cases concerning measures adopted as a result of a bailout, where the Court’s approach had been to deny the existence of any link to EU law. Indeed, it seems unavoidable that the EU should bear the appropriate degree of responsibility when allowing its EU institutions to operate within the ESM framework. This is not to say that it will be easy for individuals to be awarded damages; as this case illustrates, the threshold is extremely high. Moreover, while a significant aspect of the role of the EU institutions within the ESM has been clarified, questions remain concerning the judicial and democratic accountability of this mechanism. Overall, however, Ledra Advertising is a step in the right direction.

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Luigi Lonardo, PhD student, King’s College London

The second paragraph of Article 24(1) Treaty on the European Union explains that “the Common Foreign and Security Policy (CFSP) is subject to specific rules and procedures”, and ends with the rather explicit sentence “the Court of Justice of the European Union shall not have jurisdiction with respect to these provisions”.

Lawyers are currently discussing whether the sentence “the CJEU shall not have jurisdiction” means “the Court has some jurisdiction”. Seriously. AG Wahl elegantly phrased it this way: “The main question could be framed as follows: does the exclusion from the CJEU’s jurisdiction cover, in principle, all CFSP acts or only certain categories of CFSP acts?” (Case C‑455/14 P H v Council and Commission AG Opinion, Par 52).

The question is of fundamental constitutional importance because an answer will enable lawyers to understand with clarity what EU foreign policy acts are excluded from the Court’s judicial review – a legal issue that the Court has not yet had the opportunity to adjudicate upon. While Art 19 TEU confers on the Court jurisdiction to ensure that in the interpretation and application of the Treaties the law is observed, Article 24, as recalled, introduces an exception. The scope of this exception, however, has not been fixed. In Case C- 658/11 the Court said that the exception “must be interpreted narrowly” because it introduces an exception from a general rule (par 70). In Opinion 2/13 (on ECHR accession), it only concluded, without further specification, that “as EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court of Justice” (par 252). To further complicate the issue, however, Article 24 TEU also introduces an exception to the exception: the Court has jurisdiction to monitor compliance with Article 40 TEU (the division between foreign policy and other EU measures) and to review the legality of sanctions.

So, when does the Court of Justice of the European Union (CJEU) have jurisdiction? Two cases may offer guidance with respect to this issue. One case, H v Council and Commission, was decided by the Court in July, and another, Rosneft, is currently pending.

H v Council

In H, an Italian magistrate sought annulment, before the General Court (Order in H v Council and Others, T‑271/10), of the decision of a Head of an EU Mission established under CFSP. The contested decision concerned the transfer of H, a seconded Legal Officer of the EU Police Mission in Sarajevo, to the post of Prosecutor in another regional office of the same country. The General Court (GC) held that it lacked jurisdiction to hear the complaint and therefore found that the action was inadmissible. The GC reasoned that the exclusion of jurisdiction under Art 24(1) TEU only encounters two exceptions: monitoring compliance with Article 40 TEU (ie the division of competence between CFSP and non-CFSP external measures) and the review of the legality of sanctions under the second paragraph of Article 275 TFEU.

The General Court took the view that the appellant’s situation did not fall under one of the exceptions to the general rule that EU Courts do not have jurisdiction in CFSP matters (it was not, therefore, one of the two “exceptions to the exception”). The General Court considered that the contested decisions were adopted by the Head of Mission pursuant to powers that had been delegated to him by the Italian authorities. It thus concluded that it was for Italian courts to review the legality of the contested decisions and to hear the action for damages. It finally added that, should the Italian court having jurisdiction consider the contested decisions unlawful, it could make that finding and draw the necessary conclusions, even with respect to the very existence of those decisions.

The applicant appealed the decision before the ECJ. Applicant, Council, and Commission all wanted to set aside the GC’s order, albeit each for different reasons, which will be briefly outlined below with regards to the issue of the extent of the Court’s jurisdiction on CFSP matters.

The position of the Applicant

The Applicant took the view that the exclusion of the Court’s jurisdiction does not cover merely administrative measures (such as the decision at stake in the present case) but only the acts provided for in Article 25 TEU: general guidelines, decisions on actions and positions to be taken by the EU (and implementation thereof), and acts of systemic cooperation between Member States

The position of the Council

Par 32 of the Advocate General opinion explains that “The Council is of the view that the statement of reasons in the order under appeal does contain two legal errors. First, in deciding to relocate H, the Head of Mission did not exercise powers delegated to him by the Member State of origin, but by the competent EU institution (the Council itself). Second, the national court hearing the case does not have the power to annul the act challenged. Nevertheless, those errors do not — in the opinion of the Council — invalidate the conclusion reached by the General Court”

The position of the Commission

The Commission argued that the Court lacks jurisdiction only on acts that are “expression of sovereign foreign policy”, thus leaving the Court empowered, for example, to review the lawfulness of (a) acts of implementation, or (b) adopted in the framework of the CFSP when the alleged invalidity stems from a possible infringement of non-CFSP provisions. The Commission took the view, nonetheless, that the contested decision was not an implementing act.

The findings of the Court

Somewhat unsurprisingly, the Court reversed the order of the GC and found that the circumstance that the decision was a CFSP measure “does not necessarily lead to the jurisdiction of the EU judicature being excluded” (par 43).

The Court interpreted the exclusion of jurisdiction very narrowly. It gave a systematic reading of the general provisions of EU law (Article 2) and of CFSP (Articles 21 and 23 TEU) to recall that the EU is founded, in particular, on the values of equality and the rule of law ( Segi and Others v Council; Opinion 2/13). It stated that “The very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law (Schrems)” (par 41).

In the current case, the Court considered that the decision of the Head of Mission was subject to legal scrutiny because under Article 270 TFEU the EU judicature has jurisdiction to rule on all actions brought by EU staff members having been seconded to the EUPM. They remain subject to the Staff Regulations during the period of their secondment to the EUPM and, therefore, fall within the jurisdiction of the EU judicature, in accordance with Article 91 of those regulations (even though H was seconded by a Member State, the two situations were considered similar). The decision of the Head of Mission was considered to be merely “staff management”.

Therefore, the Court concluded, “the scope of the limitation, by way of derogation, on the Court’s jurisdiction, which is laid down in the final sentence of the second subparagraph of Article 24(1) TEU and in the first paragraph of Article 275 TFEU, cannot be considered to be so extensive as to exclude the jurisdiction of the EU judicature to review acts of staff management relating to staff members seconded by the Member States the purpose of which is to meet the needs of that mission” (par 55).

The ECJ concluded that “[the] jurisdiction stems, respectively, as regards the review of the legality of those acts, from Article 263 TFEU and, as regards actions for non-contractual liability, from Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, taking into account Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union” (par 58). It therefore referred the case back to the GC.

Rosneft

A similar question recurs in Rosneft, the first request ever for a preliminary ruling on a CFSP act, currently pending before the Court. The case stems from a Russian gas company, Rosneft, challenging sectorial measures (not target sanctions) prohibiting EU natural or legal persons, from engaging in contractual relations with certain Russian state-owned companies and banks, and from providing such companies and banks access to financial markets.

A central question is the admissibility, as discussed at the hearing and in paragraphs 32-76 of AG Wathelet’s opinion.

The AG believes that the measure can be reviewed if it meets these cumulative two conditions: if (a) it relates to Articles 23 to 46 TEU (the foreign policy rules) and or EU acts adopted on the basis of those provisions; and if (b) its substantive content also falls within the sphere of CFSP implementation.

The first condition is derived, for Wathelet, from the consideration that the last sentence of the second subparagraph of Article 24(1) TEU excludes the Court’s jurisdiction only ‘with respect to these provisions’, and the reference thus made is to Chapter 2 of Title V of the EU Treaty, entitled ‘Specific provisions on the common foreign and security policy’, of which Article 24 forms part.

In the AG’s opinion, in particular, the court should have jurisdiction to hear actions for annulment and preliminary rulings on decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the EU Treaty – and not, therefore, regulations implementing them. For the AG, therefore, the Court has jurisdiction, but the challenged decision, to the extent that it is directly addressed to Rosneft, is not invalid. The very long opinion explains in detail why, but here we limit the scope of the analysis to the question on jurisdiction.

Comment

Judicial protection and uniformity of interpretation of EU law

The decision of the ECJ in H should be welcomed because it avoids the potential deterioration of the protection of fundamental rights which would derive from each national court being able to monitor CFSP decisions in the absence of a centralised mechanism. If national Courts had jurisdiction when the CJEU does not, this might lead to diverging and potentially even conflicting interpretations of the same CFSP measure.

Uniformity of interpretation of EU law would be further guaranteed if the Court affirmed jurisdiction to hear requests for preliminary rulings (and AG Walthelet in paras 61-62 of his opinion in Rosneft suggests that the Court can rule on CFSP preliminary rulings). The importance of judicial dialogue between the CJEU and national courts has been repeatedly affirmed in the Court’s case law (Opinion 1/09; CILFIT; Adeneler; Kamberaj). Moreover, absence of the Court jurisdiction to hear on preliminary rulings would be at issue with the third paragraph of Article 267 and the CILFIT doctrine.

The prohibition of judicial dialogue and cooperation between national and EU courts in CFSP may very well be a breach of the right to effective judicial remedy as enshrined in Article 47 EU Charter of Fundamental Rights. Article 47 Charter creates what has been described as a “composite, coherent, and autonomous” standard of EU judicial protection. Pursuant to Article 19(1) TEU, national Courts shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law, with the standard set and as determined by the CJEU (which has the final saying on interpretation and application of the Treaties). Completely excluding the Court’s jurisdiction from an area of EU law such as CFSP would seriously hinder the system of judicial protection (see to a similar effect  Gestoras Pro Amnistía and Others v Councilpar 53; Segi and Others v Council par 53).

Even though it is left to the discretion of national courts to decide whether to make a reference for a preliminary ruling as well as the questions to be referred, completely ruling out the opportunity for an applicant (or the national court) to make such a request may indeed be against Article 47 Charter. All the more so if one accepted the reading proposed by the Council in its appeal in H, that is, that the national court does not have the power to annul the CFSP decision. This would leave a legal vacuum in the annulment of the provision (unlike what happened in C-583-11 Inuit, where the Court found that existence of alternative legal remedies allowed for a restrictive rule on judicial remedy).

Political questions doctrine

The preferable option seems to be that only genuinely political acts of CFSP cannot be subject to the Court’s substantial judicial review, although the Court should be able to monitor compliance with the procedural rules of the Treaty and compliance with fundamental human rights. This position is very similar to that expressed by the Commission in H, where it said that only sovereign acts of foreign policy cannot be scrutinised by the Court – without saying anything of formal control.

In H, the Court seemed to conclude that if there was any other reason for the which the Court should have jurisdiction, that reason takes precedence over the exclusion of Article 24, and then the Court does have jurisdiction. This is too broad an understanding of the Court’s powers.

In its judgment in Manufacturing Support & Procurement Kala Naft v Council, the CJEU ruled that it does not have jurisdiction on a CFSP provision which is not a restrictive measure against natural or legal persons pursuant to Article 275 TFEU, and the substantial result might be similar in Rosneft (par 85 AG opinion).

For the reasons explained above, the Court should accept the request on the preliminary ruling in Rosneft, but should then take the opportunity to draw a clear distinction: on one hand, (a) EU acts which are purely political and diplomatically sensitive acts of sovereign foreign policy; on the other hand, (b) all remaining CFSP decisions, all acts of implementation, and provisions of general application.

On (a), which I submit should be assessed on a case by case basis and on their substantial content: the Court should recognise it lacks power of judicial review. Those acts, determined with a “substance over form” rule (see Les Verts par 27; AG Wathelet seems to be taking this position in paras 49-50 of his opinion in Rosneft; see alsoGestoras Pro Amnistía and Others v Council par 54; Elitaliana v Eulex Kosovo par 48-49) will have too indirect an effect on individuals (as the case law on Article 263(4) TFEU now stands)

Such acts also have such a discretionary content that courts should defer to the decision of the political actors who adopted them. The latter element, which American constitutional lawyers refer to as the “political question doctrine” is present in many jurisdiction (see par 52 AG Opinion in Rosneft): deference toward the so called “actes de gouvernement”. The Commission proposed this thesis in its written submission and at the oral hearing in Rosneft. The “political question doctrine” is the attitude of courts not to review issues which are inherently political, are best left to the discretion of the actor who took the decision, and are ultimately non-justiciable.

In the leading case on the issue, Baker v Carr, the US Supreme Court held that a question is eminently political if it presents some characteristics such as “a textually demonstrable constitutional commitment of the issue to a coordinate political department”, or “an unusual need for unquestioning adherence to a political decision already made”. While in some cases involving foreign policy decisions the need for adherence to a political decision is evident (ie the ECJ could hardly decide that the EU cannot prohibit commerce with certain Russian companies involved in Crimea at all), arguably the retention of CFSP provisions in the TEU, the preference for intergovernmental institutions in that domain, the scant role of the European Parliament in the decision-making process, not to mention the exclusion of the Court’s jurisdiction, all militate in favour of a strong constitutional preference for CFSP to be resolved by purely political departments. The doctrine could very well be embraced for the first time by the ECJ in deciding Rosneft.

On the other hand, as regards category (b), which includes the case of the “decision on staff management” in H, the Court should exercise its powers of judicial review.

Barnard & Peers: chapter 24

ORIGINAL POSTED ON EU LAW ANALYSIS 

Professor Laurent Pech

Rule of law aficionados among the readers of this blog may be interested in getting access to the full text of the yet unpublished Commission Opinion regarding the Rule of Law in Poland adopted on 1 June 2016, which is published as an Annex to this blog post.

To enable non-experts to quickly understand what is at stake, this post will briefly describe the instrument on the basis of which the Commission has adopted this Rule of Law Opinion before succinctly recalling why the Commission deemed it necessary to formalise its concerns as regards the rule of law in Poland. A short summary of the Commission’s rationale used to turn down my initial request for access to this Opinion under Regulation 1049/2001 (concerning public access to EU documents) will also be provided.

(1) The EU’s Rule of Law Framework in a nutshell

To deal with what a number of EU officials have described as an increasing number of rule of law crises, the European Commission adopted a new framework to strengthen the rule of law in March 2014. The Commission explicitly designed this new instrument to deal with situations where ‘a systemic threat to the rule of law’ may be detected in a Member State. Soon afterwards, Frans Timmermans was appointed First Vice-President of the European Commission in charge of, inter alia, the Rule of Law.

The Commission’s rule of law framework takes the form of an early warning tool whose primary purpose is to enable the Commission to enter into a structured dialogue with the relevant Member State. The overall aim is to prevent any emergent systemic threat to the rule of law from developing into a situation where there is a clear risk of a serious breach of EU values laid down in Article 2 TEU. This procedure is supposed to precede the eventual triggering of what is often (albeit misleadingly) labelled as the ‘nuclear option’ laid down in Article 7 TEU (namely the suspension of a Member State’s rights for violating EU values), hence the informal label of ‘pre-Article 7 procedure’ given to the 2014 Framework.

With respect the mechanics of this new ‘pre-Article 7 procedure’, there is a three-stage process initiated and conducted by the Commission: (1) assessment; (2) recommendation and (3) follow up. During the first stage of the procedure, the Commission may decide to send a ‘rule of law opinion’ to the national government of the Member State concerned if there are clear indications of a systemic threat to the rule of law. In the situation where the matter has not been satisfactorily resolved, the Commission may then adopt a ‘Rule of Law Recommendation’ and indicate ways and measures to resolve the situation within a prescribed deadline. Finally, the last phase foreseen by the framework consists of the Commission’s monitoring of the implementation of any recommendation previously adopted. Should there be no satisfactory implementation, the Commission would then have the possibility of triggering the Article 7 TEU mechanism.

(2) First activation of the Rule of Law Framework against Poland

On 13 January 2016, Frans Timmermans announced the Commission’s decision to carry out a preliminary assessment of the situation of the Polish Constitutional Tribunal under the Rule of Law Framework. This was the very first time this new instrument had been activated. The primary justification for this unprecedented step was the fact that binding rulings of the Polish Constitutional Tribunal were no longer respected by the government – ‘a serious matter in any rule of law-dominated state’ according to the First Vice-President of the European Commission. A period of intensive but confidential dialogue between the Commission and Polish government followed. In the absence of any concrete steps taken by the Polish government to address its concerns, the Commission deemed it necessary to formalise its assessment of the situation in Poland by adopting a ‘Rule of Law Opinion’ on 1 June 2016. The Polish government was then invited to submit observations with the view of satisfactorily resolving the Commission’s concerns within a reasonable time. The text of the Commission Opinion was however not publicly released at the time. It was rather announced via a press release.

(3) Application for access to the full text of the Commission Opinion

My initial request to gain access to the full text was rejected by the Commission on the ground that the disclosure of the Commission Opinion of 1 June 2016 ‘would undermine the protection of the purpose of the ongoing investigation’ as any disclosure ‘at this point in time would affect the climate of mutual trust between the authorities of the Member state and the Commission, which is required to enable them to find a solution and prevent the emergence of a system threat to the rule of law’ (my application was lodged on 7 June 2016 and turned down on 18 July 2016). Partial access was also rejected on the same ground.

This reasoning is not unreasonable. The Commission’s Communication regarding the Rule of Law Framework itself provides that ‘while the launching of the Commission assessment and the sending of its opinion will be made public by the Commission, the content of the exchanges with the Member State concerned will, as a rule, be kept confidential, in order to facilitate quickly reaching a solution.’ While the reference to ‘exchanges’ may be understood as suggesting that the Commission did not intend to keep any Opinion itself confidential but rather the mere ‘exchanges’ between itself and a relevant government, one may accept that a certain degree of confidentiality could in principle help at this particular juncture.

That being said, the Commission’s initial refusal to disclose the full text of the Rule of Law Opinion of 1 June 2016 was difficult to reconcile with the full disclosure on 11 March 2016 of the Venice Commission’s Opinion on amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland. It also meant, more problematically, that there could be no external scrutiny of the Commission’s action. It also deprived Polish citizens and their national elected representatives of the opportunity to discuss the Commission’s diagnosis and eventually work out solutions to address the Commission’s concerns alongside their government.

Be that at it may, the Commission’s subsequent decision to publish a Rule of LawRecommendation on 27 July 2016 led me to ask the Commission to review their initial refusal to disclose the Opinion adopted on 1 June 2016. I argued inter alia that the period of ‘mutual trust’ had neither led the Polish government to cooperate in good faith, nor produce the expected results required not only by the European Commission but also the Venice Commission. I furthermore emphasised that no harm would result from the disclosure of the Opinion as far as the conduct of the Commission’s investigation is concerned following the public release of the Commission’s Rule of Law Recommendation.

Having reviewed my application, the Secretariat General of the Commission accepted the disclosure of the full text of the Opinion on the basis that the exception laid down in Article 4(2) of Regulation 1049/2001 no longer applied following ‘the Commission’s issuance, on 27 July 2016, of a Recommendation regarding the rule of law in Poland.’

Readers familiar with the Commission Recommendation of 27 July 2016 will quickly detect that the Recommendation closely reflects the content of the Opinion. It does however put more emphasis on the issue of the effective functioning of the Polish Constitutional Tribunal following inter alia the adoption of the law on the Constitutional Tribunal adopted by the Polish Parliament on 22 July 2016.

 

Professor Kochenov and I are planning to offer readers of this blog a more comprehensive analysis of the Commission’s Rule of Law Framework as applied in the case of Poland in November, at which point the deadline for implementing the Commission’s recommendations will have passed (there are clear indications that the Polish government has opted for confrontation over compromise with the EU and will not implement them). Meanwhile, interested readers may find this special rule of law issue of the Journal of Common Market Studies, and the articles contained therein, of special interest.

Barnard & Peers: chapter 8

Photo credit: http://www.dw.com

Annex

COMMISSION OPINION of 1.6.2016 regarding the Rule of Law in Poland

1) Introduction

1. This opinion sets out the concerns of the European Commission in regard of the rule of law in Poland and provides an opportunity for the Republic of Poland to respond to these concerns.

2. The European Union is founded on a common set of values enshrined in Article 2 of the Treaty on European Union, which include in particular the respect for the rule of law. The Commission, beyond its task to ensure the respect of EU law, is also responsible, together with the European Parliament, the Member States and the Council, for guaranteeing the common values of the Union.

3. For this reason the Commission, taking account of its responsibilities under the Treaties, adopted on 11 March 2014 a Communication “A new EU Framework to Strengthen the Rule of Law” [1 COM(2014) 158 final, hereinafter “the Communication”.] This Rule of Law Framework sets out how the Commission will react should a threat to the rule of law emerge in a Member State of the Union and explains the principles which the rule of law entails.

4. The Commission considers after a careful assessment of the facts, that the following issues in Poland raise serious concerns in regard of these principles.

Rule of Law Framework

5. The Rule of Law Framework provides guidance for a dialogue between the Commission and the Member State concerned to prevent the escalation of systemic threats to the rule of law.

6. The purpose of this dialogue is to enable the Commission to find a solution with the Member State concerned in order to prevent the emergence of a systemic threat to the rule of law that could develop into a “clear risk of a serious breach” which would potentially trigger the use of the ‘Article 7 TEU Procedure’. Where there are clear indications of a systemic threat to the rule of law in a Member State, the Commission can initiate a dialogue with that Member State under the Rule of Law Framework.

7. Case law of the Court of Justice of the European Union and of the European Court of Human Rights, as well as documents drawn up by the Council of Europe, building notably on the expertise of the Venice Commission, provides a non-exhaustive list of these principles and hence defines the core meaning of the rule of law as a common value of the Union in accordance with Article 2 of the Treaty on European Union (TEU). Those principles include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law2. [2 See COM(2014) 158 final, section 2, Annex I.] In addition to upholding those principles and values, State institutions also have the duty of loyal cooperation.

8. The Framework is to be activated in situations where the authorities of a Member State are taking measures or are tolerating situations which are likely to systematically and adversely affect the integrity, stability or the proper functioning of the institutions and the safeguard mechanisms established at national level to secure the rule of law3. [3 See para 4.1 of the Communication.]  The purpose is to address threats to the rule of law which are of a systemic nature4. [4 See para 4.1 of the Communication.] The political, institutional and/or legal order of a Member State as such, its constitutional structure, separation of powers, the independence or impartiality of the judiciary, or its system of judicial review including constitutional justice where it exists, must be threatened5 . [5 See para 4.1 of the Communication.]The Framework is to be activated in particular in situations when national “rule of law safeguards” do not seem capable of effectively addressing those threats.

9. The Rule of Law Framework has three stages:

• Commission assessment: in this stage the Commission collects and examines all the relevant information and assesses whether there are clear indications of a systemic threat to the rule of law. If, on this evidence, the Commission believes that there is a systemic threat to the rule of law, it will initiate a dialogue with the Member State concerned, by sending a “rule of law opinion”, substantiating its concerns. The opinion could be the result of an exchange of correspondence and meetings with the relevant authorities and be followed by further exchanges.
• Commission Recommendation: in a second stage, if the matter has not been satisfactorily resolved, the Commission can issue a “rule of law recommendation” addressed to the Member State. In this case, the Commission would recommend that the Member State solves the problems identified within a fixed time limit, and inform the Commission of the steps taken to that effect. The Commission will make public its recommendation.
• Follow-up to the Commission Recommendation: in a third stage, the Commission will monitor the follow-up given by the Member State to the recommendation. If there is no satisfactory follow-up within the time limit set, the Commission can resort to the ‘Article 7 Procedure’.

The entire process is based on a continuous dialogue between the Commission and the Member State concerned.

Factual context

10 In November 2015, the Commission became aware of an ongoing dispute in Poland concerning the composition of the Constitutional Tribunal, as well as the shortening of the mandates of its current President and Vice-President. The Constitutional Tribunal rendered two judgments on these matters, on 3 and 9 December 2015.

11. In addition, the Commission noted that the Sejm adopted on 22 December 2015 a law amending the law on the Constitutional Tribunal, which concerns the functioning of the Tribunal as well as the independence of its judges6. [6 Law of 22 December 2015 amending the Law of 25 June 2015 on the Constitutional Tribunal. The amending Law was published in the Official Journal on 28 December; item 2217.]

12. In a letter of 23 December 2015 to the Polish Government7, [7 Letter of 23 December 2015 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski and Minister of Justice Mr Ziobro.] the Commission asked to be informed about the constitutional situation in Poland, including the steps envisaged by the Polish authorities with respect to the above-mentioned two judgements of the Constitutional Tribunal. As regards the amendments contained in the Law of 22 December 2015 on the Constitutional Tribunal, First Vice President Timmermans stated he would expect that this law is not finally adopted or at least not put into force until all questions regarding the impact of this law on the independence and the functioning of the Constitutional Tribunal have been fully and properly assessed. The Commission also recommended the Polish authorities to work closely with the Council of Europe’s Venice Commission8. [8 European Commission for Democracy through Law (Venice Commission)].

13. On 23 December 2015 the Polish Government asked for an opinion of the Venice Commission on the Law of 22 December 2015. However, the Polish Parliament did not await this opinion before taking further steps, and the Law was published in the Official Journal and entered into force on 28 December 2015.

14. On 30 December 2015 the Commission wrote to the Polish Government9 [9 Letter of 30 December 2015 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski and Minister of Justice Mr Ziobro.] to seek additional information about the proposed reforms to the governance of Poland’s Public State Broadcasters. First Vice President Timmermans asked the Polish Government how relevant EU law and the need to promote media pluralism were taken into account in the preparation of the new “small media law”.

15. On 31 December 2015, the Polish Senate adopted the “small media law” concerning the management and supervisory boards of the Polish public television broadcaster and public radio broadcaster. The new law modifies the rules for the appointment of the Management and Supervisory Boards of the public service broadcasters, putting them under the control of the Treasury Minister, rather than an independent body. The new law also provided for the immediate dismissal of the existing Supervisory and Management Boards.

16. On 7 January 2016, the Commission received a response from the Polish Government10 [10 letter of 7 January 2016 from Undersecretary of State Mr Stepkowski to First Vice President Timmermans] on the letter on the media law denying any adverse impact on media pluralism. On 11 January, the Commission received a response from the Polish Government on the Constitutional Tribunal reform11. [11 letter of 11 January 2016 from Minister of Justice Mr Ziobro to First Vice President Timmermans] These responses did not remove existing concerns.

17. On 13 January 2016, the College of Commissioners held a first orientation debate in order to assess the situation in Poland. The Commission decided to examine the situation under the Rule of Law Framework and mandated First Vice President Timmermans to enter into a dialogue with the institutions of the Republic of Poland in order to clarify the issues at hand and identify possible solutions.

18. On the same day, First Vice-President Timmermans wrote to the Polish Government12 [12 Letter of 13 January 2016 from First Vice President Timmermans to Minister of Justice Mr Ziobro.] informing the Government that the Commission is examining the situation under the Rule of Law Framework and wished to enter into a dialogue with the institutions of the Republic of Poland in order to clarify the issues at hand and identify possible solutions.

19. On 19 January 2016 the Commission wrote to the Polish Government13 [13 Letter of 19 January 2016 from Commissioner Oettinger to Minister of Justice Mr Ziobro.] offering to contribute expertise and discuss matters related to the new media law.

20. On 19 January 2016 the Polish Government wrote to the Commission14 [14 Letter of 19 January 2016 from Minister of Justice Mr Ziobro to First Vice President Timmermans.] setting out its views on the dispute concerning the appointment of judges, referring inter alia to a constitutional custom relating to the appointment of judges. Regarding the amendment to the Act on the Constitutional Tribunal this letter sets out its positive effects.

21. On 1 February 2016 the Commission wrote to the Polish Government15 [15 Letter of 1 February 2016 from First Vice President Timmermans to Minister of Justice Mr Ziobro.] noting that the judgements of the Constitutional Tribunal on the appointment of judges have still not been implemented. The letter also underlines the need to further examine the amendment to the Act on the Constitutional Tribunal, in particular the “combined effect”, requesting more detailed explanations. The letter also requests information about other laws which have been adopted recently, in particular the new Civil Service Act, the Act amending the law on the Police and certain other laws, as well as the Law on the Public Prosecution Service, and about legislative reforms which are being envisaged, notably further reforms of the media legislation.

22. On 29 February 2016 the Polish Government wrote to the Commission16 [16 Letter of 29 February 2016 from Minister of Foreign Affairs Mr Waszczykowski to First Vice President Timmermans.] providing further clarifications on the mandate of the President of the Constitutional Tribunal. The letter clarifies that the Tribunal’s judgment of 9 December 2015 states that the interim provisions of the amending law that provided for ending the mandate of the President were pronounced unconstitutional and lost their legal effect. As a result, the current President of the Tribunal will continue to exercise his mandate pursuant to the old legislative provisions until his mandate expires on 19 December 2016. The letter also states that the mandate of the next President will be 3 years long. The letter furthermore requests clarifications as to what the Commission means by insisting that the binding and final judgments of the Constitutional Tribunal have still not been implemented as well as clarifications why according to the Commission the resolutions electing three judges of the Constitutional Tribunal on 2 December 2015 run counter to the Tribunal’s subsequent judgement.

23. On 3 March 2016 the Commission wrote to the Polish Government17, [17 Letter of 3 March 2016 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski.] providing clarifications concerning the issue of the appointment of judges as requested by the Polish Government in the letter of 29 February 2016. Regarding the amendment to the Act on the Constitutional Tribunal the letter notes that according to a preliminary assessment certain amendments, both individually and taken together, make more difficult the conditions under which the Constitutional Tribunal may review the constitutionality of newly passed laws and requests more detailed explanations on this. The letter also asks for information about other laws which have been adopted recently and further legislative reforms which are being envisaged.

24. On 9 March 2016 the Constitutional Tribunal ruled that the Law of 22 December 2015 is unconstitutional. That judgment has so far not been published in the Official Journal.

25. On 11 March 2016 the Venice Commission adopted its opinion “on amendments to the Act of 25 June 2015 on the Constitutional Tribunal”18 . [18 Opinion no. 833/2015, CDL-AD(2016)001.]

26. On 21 March 2016, Minister of Foreign Affairs of Poland Mr Waszczykowski wrote to First Vice President Timmermans inviting him to a meeting in Poland to assess the dialogue carried out so far between the Polish Government and the Commission and to determine how to continue it in an impartial, evidence-based and cooperative way.

27. On 31 March 2016 Secretary of State for European Affairs Mr Szymanski wrote to FVP Timmermans with recent information and legal assessments regarding the dispute around the Constitutional Tribunal in Poland. A note was included from Undersecretary of State Mr Stępkowski “Polish Constitutional Tribunal and the current controversy around it”.

28. On 5 April 2016, meetings took place in Warsaw between First Vice-President Timmermans and Minister of Foreign Affairs Mr Waszczykowski, Minister of Justice Mr Ziobro, Deputy Prime Minister Mr Morawiecki, as well as with the President and the Vice-President of the Constitutional Tribunal, Mr Rzepliński and Mr Biernat.

29. Following these meetings, several meetings took place between the Polish Government, represented by the Ministry of Justice, and the Commission.

30. Following the judgment of 9 March 2016, the Constitutional Tribunal started again adjudicating cases. The Polish Government did not participate in these proceedings and the judgements rendered by the Constitutional Tribunal since 9 March 2016 have so far not been published by the Government in the Official Journal19. [19 Since 9 March 2016 nine judgments have been rendered by the Constitutional Tribunal which have not been published.]

31. On 6 April 2016 the President of the Constitutional Tribunal informed the public that he had received a letter from Minister of Justice Mr Ziobro, dated 5 April 2016, stating inter alia that the Tribunal is legally required to proceed in accordance with the provisions of the Law of 22 December 2015, that any attempts by the Tribunal to act outside the framework of the Constitution and the Law of 22 December 2015 will not be granted legitimacy by any form of participation therein from the Minister of Justice in his capacity as Prosecutor-General, and that the Prosecutor-General’s role is to monitor the lawfulness of such attempts.

32. On 20 April 2016 a meeting took place between the Commission and representatives of the Network of Presidents of Supreme Judicial Courts of the EU and of the Conference of European Constitutional Courts to discuss about the situation in Poland. The President of the Network of Presidents, Chief Justice Denham, contributed in writing to this meeting.

33. On 26 April 2016, the General Assembly of the Supreme Court of Poland adopted a resolution attesting that the rulings of the Constitutional Tribunal are valid, even if the Polish Government refuses to publish them in the Official Journal.

34. On 28-29 April 2016, a delegation of the Venice Commission visited Warsaw to discuss the recent amendments to the Law on the Police and certain other laws20, [20 Law of 15 January 2016 amending the Law on Police and other laws, published in Official Journal on 4 February 2016, item 147.] in view of delivering an opinion on 10-11 June 2016.

35. An expert group was composed in the Sejm to help prepare a new law on the Constitutional Tribunal. On 29 April 2016 a group of members of the Sejm submitted to the Sejm a legislative proposal for a new Constitutional Tribunal Act with a view to replacing the current Act. The proposal contains several provisions which were already criticised by the Venice Commission in its opinion of 11 March 2016 and declared unconstitutional by the Tribunal in its ruling of 9 March 2016. This includes the requirement of a two-thirds majority for adopting decisions for “abstract” constitutional review of newly adopted laws.

36. On 5 May 2016 the President of the Constitutional Tribunal Mr Rzepliński informed the public that he had received a letter from the Minister of Finance of Poland Mr Szałamacha, dated 2 May 2016, calling for restraint in making public statements on the current situation around the Tribunal until 13 May 2016 as on that date a credit rating agency would take a decision on its rating for Poland.

37. On 24 May 2016, First Vice-President Timmermans had meetings in Warsaw with Prime Minister Ms Szydło, with the President and the Vice President of the Polish Constitutional Tribunal Mr Rzepliński and Mr Biernat, with the Ombudsman Mr Bodnar, with the Mayor of the City of Warsaw Ms Gronkiewicz-Waltz and with members of the opposition parties in the Sejm. On 26 May 2016 First Vice-President Timmermans had a meeting in Brussels with Deputy Prime Minister Mr Morawiecki. Subsequently, further exchanges and meetings took place between the Commission and the Polish government.

38. However, despite the detailed and constructive nature of the exchanges between the Commission and the Polish Government, they were not able to resolve the concerns of the Commission.

2) Scope of the opinion

39. The present opinion sets out the current concerns of the Commission in regard of the rule of law in Poland concerning the following issues:

• the appointment of judges of the Constitutional Tribunal and the implementation of the judgments of the Constitutional Tribunal of 3 and 9 December 2015 relating to these matters 21; [21 The Commission considers the issue of the shortening of the mandate of the President and the Vice-President of the Constitutional Tribunal as resolved in view of the judgment of the Tribunal of 9 December 2015 and the clarifications received from the Polish Government.]
• the Law of 22 December 2015 amending the Law on the Constitutional Tribunal, the judgment of the Constitutional Tribunal of 9 March 2016 relating to this law, as well as the respect of the judgments rendered by the Constitutional Tribunal since 9 March 2016;
• the effectiveness of Constitutional review of new legislation, in particular the new media law, and certain other laws which have been adopted and enacted in 2016.

3) Appointment of judges of the Constitutional Tribunal

1. The Facts

40. Ahead of the general elections for the Sejm of 25 October 2015, on 8 October the outgoing legislature nominated five persons to be ‘appointed’ as judges of the Constitutional Tribunal by the President of the Republic. Three judges would take seats vacated during the mandate of the outgoing legislature while two would take seats vacated during that of the incoming legislature which commenced on 12 November 2015.

41. On 19 November 2015, the new legislature, through an accelerated procedure, amended the Law on the Constitutional Tribunal, introducing the possibility to annul the judicial nominations made by the previous legislature and to nominate five new judges. The amendment also shortened the terms of office of the President and Vice-President of the Tribunal from nine to three years, with the current terms coming to an automatic end 2 within three months of the amendment’s adoption. On 25 November 2015 the new legislature passed a motion annulling the five nominations by the previous legislature and on 2 December nominated five new judges.

42. The Constitutional Tribunal was seized concerning the decisions of both the previous legislature and the incoming legislature. The Tribunal delivered two judgements, on 3 and 9 December 2015.

43. In its judgment of 3 December22, [22 K 34/15] the Constitutional Tribunal ruled inter alia that the previous legislature of the Sejm was entitled to nominate three judges replacing the judges whose terms expired on 6 November 2015. At the same time, the Tribunal clarified that the Sejm had not been entitled to elect the judges replacing those whose term expired in December. The judgment also specifically referred to the obligation for the President of the Republic to immediately take the oath from a judge elected by the Sejm.

44. On 9 December23, [23 K 35/15.] the Constitutional Tribunal inter alia invalidated the legal basis for the nominations by the new legislature of the Sejm of the three judges for the vacancies opened up on 6 November 2015 for which the previous legislature had already lawfully nominated judges. In this judgment the Constitutional Tribunal also considered that a reduction of the duration of the mandate of the President and Vice-President from nine to three years was constitutional only in so far as the reduction applied to future mandates and as long as a renewal of the mandate would not be possible.

45. Despite these judgments, the three judges that have been nominated by the previous legislature have not taken up their function of judge in the Constitutional Tribunal and their oath has not yet been taken by the President of the Republic. Conversely, the oath of the three judges nominated by the new legislature without a valid legal basis has been taken by the President of the Republic.
46. The two judges elected by the new legislature replacing the two judges outgoing in December 2015, Ms Przyłębska and Mr Pszczółkowski, have in the meantime taken up their function of judge in the Constitutional Tribunal.

47. On 28 April 2016 the President of the Republic took the oath of Mr Jędrzejewski who had been nominated by the new legislature earlier that month to replace Mr Granat whose term as judge in the Constitutional Tribunal had ended.

1. Assessment

Appointment of judges of the Constitutional Tribunal

48. The Commission considers that the binding and final judgments of the Constitutional Tribunal of 3 and 9 December 2015 as far as the appointment of judges is concerned have still not been implemented. These judgments require that the State institutions of Poland cooperate loyally in order to ensure, in accordance with the rule of law, that the three judges that have been nominated by the previous legislature of the Sejm can take up their function of judge in the Constitutional Tribunal, and that the three judges nominated by the new legislature without a valid legal basis do not take up this function. The fact that these judgments have not been implemented raises serious concerns in regard of the rule of law, as compliance with final judgments is an essential requirement inherent in the rule of law.

49. In the exchange of letters the Polish Government referred to the existence of a constitutional custom in Poland regarding the nomination of judges which would justify the position taken by the new legislature of the Sejm. The Commission notes however, as did the Venice Commission24, [24 Opinion, para 112.] that it is for the Constitutional Tribunal to interpret and apply the national constitutional law and custom, and that the Constitutional Tribunal did not refer to such a custom in its judgments. The judgment of 3 December which has validated the legal basis for the nominations of the three judges by the previous Sejm for the posts which became vacant on 6 November cannot be overturned by invoking a supposed constitutional custom which the Tribunal did not recognize.

50. Also, limiting the impact of these judgments to a mere obligation for the Government to publish them, as put forward by the Polish authorities, would deny any legal and operational effect of the judgments of 3 and 9 December. In particular, it denies the obligation of the President of the Republic to take the oath of the judges in question, which has been confirmed by the Constitutional Tribunal.

51. Finally, the Commission notes that also the Venice Commission considers that a solution to the current conflict over the composition of the Constitutional Tribunal “must be based on the obligation to respect and fully implement the judgments of the Constitutional Tribunal” and “therefore calls on all State organs and notably the Sejm to fully respect and implement the judgments”25. [25 Opinion, para 136.]

Conclusion

52. In view of the above the Commission considers that the Polish authorities should respect and fully implement the judgments of the Constitutional Tribunal of 3 and 9 December 2015. These judgments require that the State institutions cooperate loyally in order to ensure, in accordance with the rule of law, that the three judges that have been nominated by the previous legislature can take up their function of judge in the Constitutional Tribunal, and that the three judges nominated by the new legislature without a valid legal basis do not take up the post of judge without being validly elected.

4) Amendment of 22 December 2015 to the Law on the Constitutional Tribunal

1. The Facts

53. On 22 December 2015, following an accelerated procedure, the Sejm amended the Law on the Constitutional Tribunal26. [26 Law of 25 June 2015 on the Constitutional Tribunal, published in Official Journal on 30 July 2015, item 1064, as amended. The Law of 22 December 2015 was published in the Official Journal on 28 December; item 2217.] The amendments inter alia increased the attendance quorum of judges for hearing cases27, [27 See Article 1(9) new, replacing Article 44(1-3).] raised the majorities needed in the Constitutional Tribunal to hand down judgments in full configuration28, [28 See Article 1(14) new, replacing Article 99(1).] required the handling of cases in chronological order29 [29 See Article 1(10) new, inserting a new Article 80(2).] and provided a minimum delay for hearings30. [30 See Article 1(12) new, replacing Article 87(2).] Certain amendments31 [31 See Article 1(5) new, inserting a new Article 28a and Article 1(7) new, inserting a new Article 31a.] increased the involvement of other institutions of the State in disciplinary proceedings concerning judges of the Tribunal. These amendments are set out in more detail below.

Attendance quorum

54. The amended Article 44(3) states that “Adjudicating in full bench shall require the participation of at least 13 judges of the Court”. 32 [32 This new attendance quorum also applies for resolutions of the General Assembly, unless otherwise provided in the Law, see Article 1(3) new, amending Article 10(1).] According to the amended Article 44(1) under 1) the Constitutional Tribunal shall rule sitting in its full configuration, unless otherwise specified by law. This applies in particular to what are described as “abstract cases” of constitutional review of newly adopted laws. The amended Article 44(1) under 2) and 3) provides for exceptions, notably for individual complaints or cases submitted by ordinary courts. The former version of the Law required, for a decision by the full bench, the presence of at least nine judges (Article 44 (3), item 3 of the Law before the amendment).

Voting majority

55. According to the amended Article 99(1), judgments of the Constitutional Tribunal sitting as a full bench (for “abstract cases”) require a majority of two-thirds of the judges sitting. With a view to the new (higher) attendance quorum (see above) this means that a judgment must be approved by at least nine judges if the Constitutional Tribunal adjudicates as a full bench33. [33 According to the amendment, the same rules – attendance quorum and a two-third majority of votes – also apply to the General Assembly of the Court.] Only if the Tribunal adjudicates in a panel of seven or three judges (individual complaints and preliminary requests from ordinary courts), a simple majority of votes is required. The former version of the Law required, for a decision by the full bench, a simple majority of votes (Article 99(1) of the Law before the amendment).

Handling of cases in chronological order

56. According to amended Article 80(2)34, [34 See Article 1(10) new, inserting a new Article 80(2).] the dates for hearings or proceedings in camera, where applications in abstract constitutional review proceedings are considered, “shall be established by order in which the cases are submitted to the Court”. There are no exceptions foreseen to this rule and according to the amendment this rule applies to all pending cases for which no date for a hearing has been set yet35. [35 See Article 2 new.] The former version of the Law did not include such rule.

Minimum delay for hearings

57. According to amended Article 87(2)36, [36 See Article 1(12) new.] ”[t]he hearing may not take place earlier than after three months from the day the notification on the date of the hearing has been delivered to the participants of the proceedings, and for cases adjudicated in full bench – after six months”. The former version of the Law stated that the hearing cannot be held earlier than after 14 days from the delivery date of the notification of its date to participants of the proceedings.

Disciplinary proceedings

58. According to amended Article 28a37, [37 See Article 1(5) new.] “[d]isciplinary proceedings may also be instituted further to an application from the President of the Republic of Poland or the Minister for Justice no later than three weeks after the date of receipt of the application, unless the President of the Court decides that the application is unfounded.” Furthermore, according to the new Article 31a(1) of the Law38 [38 See Article 1(7) new.] “[i]n particularly gross cases, the General Assembly shall apply to the Sejm to depose the judge of the Court.” This action of the General Assembly could be initiated by an application by the President of the Republic or the Minister of Justice pursuant to Article 31a(2) new, although the Constitutional Tribunal remains free to decide. The final decision will be taken by the Sejm. According to the former version of the Law the Executive branch was not entitled to institute disciplinary proceedings and the Sejm was not granted the power to depose a judge of the Court. The Constitutional Tribunal itself had the power to depose of a judge of the Tribunal.

Judgment of 9 March 2016 of the Constitutional Tribunal

59. In its judgment of 9 March 2016, the Constitutional Tribunal declared unconstitutional the Law of 22 December 2015 in its entirety as well as specific provisions thereof, in particular those referred to above. So far the Polish authorities have failed to publish the judgment in the Official Journal. The Polish Government contests the legality of the judgment, as the Constitutional Tribunal did not apply the procedure foreseen by the Law of 22 December 2015. The same position is taken by the Government towards the judgments rendered by the Tribunal after 9 March 2016.

1. Assessment

60. As set out in more detail below, the Commission takes the view that the effect of the amendments concerning the attendance quorum, the voting majority, the handling of cases in chronological order and the minimum delay for hearings, in particular their combined effect, undermine the effectiveness of the Constitutional Tribunal as a guarantor of the Constitution.

Attendance quorum

61. The Commission considers that the attendance quorum of 13 out of 15 Judges for the full configuration of the Constitutional Tribunal (which deals with the “abstract” constitutional review of newly adopted laws) represents a serious constraint on the decision-making process of the Constitutional Tribunal, with the risk of blocking it. The Commission notes, as confirmed by the Venice Commission, that an attendance quorum of 13 out of 15 judges is unusually high compared to requirements in other Member States. It is indeed entirely imaginable that for various reasons, such an attendance quorum might on occasion not be reached, which would then leave the Tribunal at least temporarily unable to adjudicate. In fact, such a situation would be present in the current circumstances, as the Tribunal has only 12 judges at this stage.

62. The impact of this requirement on the functioning of the Constitutional Tribunal must be assessed within the context of other provisions, notably by taking into account its combination effect with other requirements as amended.

Voting majority

63. In addition to the increased attendance quorum, a two-third majority for adopting decisions (for “abstract” constitutional review of newly adopted laws) significantly aggravates the constraints on the decision-making process of the Constitutional Tribunal. The Commission notes, as also confirmed by the Venice Commission, that in the vast majority of European legal systems, only a simple voting majority is required. In any event, the Constitutional Tribunal found that the Polish Constitution prescribed voting by simple majority, and that the requirement of a qualified majority was thus unconstitutional.

Handling of cases in chronological order

64. The “sequence rule” according to which the Constitutional Tribunal must hear cases in the sequence in which they have been registered negatively affects the capacity to render rapidly decisions on the constitutionality of new laws, in particular in view of the current number of pending cases. The impossibility to take into account the nature of a case (in particular when involving fundamental rights issues), its importance and the context in which it is presented, can prevent the Constitutional Tribunal from meeting the requirements for a reasonable length of proceedings as enshrined in Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights. As also noted by the Venice Commission, the sequencing rule may also discourage the putting of preliminary ruling questions to the Court of Justice, particularly if a hearing is required after the preliminary ruling has been received.

Minimum delay for hearings

65. Finally, this issue is to be seen in combination with the requirement concerning the scheduling of cases, in particular the minimum delay for hearings (participants of the proceedings must be notified of a hearing before the Constitutional Tribunal at least three – and in important cases six – months before the date of the hearing) risks slowing down proceedings unnecessarily. As set out above, the absence of a general provision that would allow the Constitutional Tribunal to reduce these deadlines in urgent cases is incompatible with the requirements for a reasonable length of proceedings under Article 6 of the European Convention on Human Rights and Article 47 of the EU Charter of Fundamental Rights.

Overall findings on procedural issues

66. As an overall conclusion the Commission considers that the combined impact of these provisions on the effectiveness of the constitutional review is a matter of concern in regard of the rule of law, as it prevents the Constitutional Tribunal from fully ensuring an effective constitutional review and fulfilling its function as a safeguard mechanism established at national level to secure the rule of law. This conclusion is shared by the Venice Commission.

Disciplinary proceedings

67. The Commission also notes with concern the fact that certain amendments increase the involvement of other institutions of the State in disciplinary proceedings concerning judges of the Tribunal. In particular, the President of the Republic or the Minister of Justice have been given the power to initiate disciplinary proceedings against a Constitutional Tribunal judge39 [39 See Article 1(5) new, inserting a new Article 28a.] and, in particularly serious cases, it is for the Sejm to take the final decision on the dismissal of a judge following a request to that effect by the Constitutional Tribunal40 . [40 See Article 1(7) new, inserting a new Article 31a.]

68. The Commission considers that the fact that a political body decides on (and hence may refuse to impose) a disciplinary sanction as proposed by the Constitutional Tribunal may pose a problem regarding independence of the judiciary, as the Parliament (as a political body) is likely to also decide on the basis of political considerations. Similarly it is not clear why political institutions such as the President of the Republic and the Minister of Justice should have the power to initiate disciplinary proceedings. Even if such proceedings require approval by the Tribunal or its President, already the fact that they may be initiated by political institutions may have an impact on the independence of the Tribunal. This raises concerns as regards the separation of powers and the independence of the Constitutional Tribunal as the proposal of the Tribunal to dismiss a judge could be rejected by the Sejm.

Lack of implementation of the judgment of 9 March 2016

69. The Constitutional Tribunal ruled in its judgment of 9 March that the amendments of the Law of 22 December 2015 referred to in this section are unconstitutional.

70. The Commission notes that the Polish Government contests the legality of the judgment, as the Constitutional Tribunal did not apply the procedure foreseen by the Law of 22 December 2015. For this reason the Polish authorities have not published the judgment in the Official Journal.

71. The Commission considers that the Constitutional Tribunal was correct not to apply the procedure foreseen by the Law of 22 December 2015. In that respect the Commission agrees with the Venice Commission, which states on this point that “a simple legislative act, which threatens to disable constitutional control, must itself be evaluated for constitutionality before it can be applied by the Court. […] The very idea of the supremacy of the Constitution implies that such a law, which allegedly endangers constitutional justice, must be controlled – and if need be, annulled – by the Constitutional Tribunal before it enters into force”.41 [41 Opinion, para 41.] The Commission furthermore underlines that as the Constitutional Tribunal is currently composed of 12 judges only, it could otherwise not have reviewed the constitutionality of the amendments of 22 December 2015 as requested by the First President of the Supreme Court, the Ombudsman and the National Council of the Judiciary. This would have been contrary to the Polish Constitution which has tasked the Constitutional Tribunal with the role of ensuring constitutional review. Similarly, the Tribunal could not have decided on the constitutionality of the qualified majority requirement while voting in accordance with the very requirement the constitutionality of which it was examining.

72. The refusal of the Government to publish the judgment of the Constitutional Tribunal of 9 March raises serious concerns in regard of the rule of law, as compliance with final judgments is an essential requirement inherent in the rule of law. In particular, where the publication of a judgment is a prerequisite for its taking effect and where such publication is incumbent on a State authority other than the court which has rendered the judgment, an ex post control by that State authority regarding the legality of the judgment is incompatible with the rule of law. The refusal to publish the judgment denies the legal and operational effect of a binding and final judgment, and breaches the principles of legality and separation of powers.

73. The refusal to publish the judgment of 9 March creates a level of uncertainty and controversy which will adversely affect not only the present judgment, but all future judgments of the Tribunal. Since these judgments will, following the judgment of 9 March, be rendered in accordance with the rules applicable before 22 December 2015, the risk of a continuous controversy about every future judgment will undermine the proper functioning of constitutional justice in Poland. This risk has already materialized as the Tribunal has to date rendered nine rulings since its ruling of 9 March 2016, and none of these rulings have been published in the Official Journal.

Conclusion

74. In view of the above, the Commission takes the view that the effect of the amendments, in particular their combined effect, undermines the effectiveness of the Constitutional Tribunal as a guarantor of the Constitution. The Commission also notes with concern the fact that certain amendments increase the involvement of other institutions of the State in disciplinary proceedings concerning judges of the Tribunal, raising concerns as regards the separation of powers and the independence and integrity of the Constitutional Tribunal.

75. The Commission notes that the amendments have been declared unconstitutional by the Constitutional Tribunal in its judgment of 9 March 2016. However, the fact that the Polish Government has so far refused to publish the judgment of the Constitutional Tribunal in the Official Journal, creates uncertainty about the legal effect of the judgment and hence on the legal basis on which the Tribunal must act. This uncertainty undermines the effectiveness of constitutional review and raises serious concerns in regard of the rule of law.

76. This legal uncertainty has already manifested itself in the fact that the further judgments rendered by the Constitutional Tribunal have not been published, and are not recognised by the Government. This situation of non-recognition of judgments of the Constitutional Tribunal is liable to create profound legal uncertainty in the Polish legal system across a wide range of areas.

77. Refusing to publish and to act upon the judgment of the Constitutional Tribunal of 9 March 2016, as well as all the judgments of the Tribunal rendered subsequently, falls short of the required respect for the Tribunal as the guarantor of the Constitution, and is not compatible with the rule of law.

5) Effectiveness of Constitutional review of new legislation – Media law and other laws

1. The Facts

78. A number of particularly sensitive new legislative acts have been adopted by the Sejm, often through accelerated legislative procedures, such as, in particular, a media law42, [42 Law of 30 December 2015 amending the Broadcasting Law, published in Official Journal on 7 January 2016, item 25.] a new Civil Service Act43, [43 Law of 30 December 2015 amending the Law on Civil Service and certain other acts, published in Official Journal on 8 January 2016, item 34.] a law amending the law on the Police and certain other laws44 [44 Law of 15 January 2016 amending the Law on Police and other laws, published in Official Journal on 4 February 2016, item 147.] and laws on the Public Prosecution Service45, [45 Law of 28 January 2016 on the Prosecutor’s Office, published in Official Journal on 15 February 2016, item 177; Law of 28 January 2016 – Regulations implementing the Act – Law on the Prosecutor’s Office, published in Official Journal on 15 February 2016, item 178.] and a new law on the Ombudsman and amending certain other laws46. [46 Law of 18 March 2016 on the Ombudsman and amending certain other laws. The law was signed by the President of the Republic on 4 May 2016.] The Commission has asked the Polish Government about the state of play and content of these legislative reforms in its letters of 1 February 2016 and 3 March 2016, but so far this information has not been provided. Furthermore, a number of other sensitive draft legislative acts have been submitted to the Sejm, such as drafts for a new media law47 [47 Draft legislation submitted to the Sejm on 25 April 2016.] and a new anti-terrorism law48. [48 Draft legislation submitted to the Sejm on 11 May 2016. The Commission is furthermore aware that a new law amending the Law on the National Judicial Council and certain other laws has been submitted on 5 May 2016 by the Minister of Justice to the National Legislative Centre.]

1. Assessment

79. The Commission considers that as long as the Constitutional Tribunal is prevented from fully ensuring an effective constitutional review, there will be no effective scrutiny of compliance with the Constitution, including fundamental rights, of legislative acts such as those referred to above. The Commission notes for example that new legislation (such as the media law49) [49 Law of 30 December 2015 amending the Broadcasting Law, published in Official Journal on 7 January 2016, item 25.] raises concerns relating to freedom and pluralism of the media. More specifically, the new media law modifies the rules for the appointment of the Management and Supervisory Boards of the public service broadcasters, putting them under the control of the Treasury Minister, rather than an independent body. The new law also provides for the immediate dismissal of the existing Supervisory and Management Boards. In that respect the Commission questions in particular the possibilities of judicial redress for the persons affected by the law.

81. Legislation such as the new Civil Service Act50 [50 Law of 30 December 2015 amending the Law on Civil Service and certain other acts, published in Official Journal on 8 January 2016, item 34.] is equally important from the perspective of the rule of law and fundamental rights. In that respect the Commission has asked to Polish Government about the possibilities of judicial redress for the persons affected by the law in its letters of 1 February and 3 March 201651. [51 Letter of 1 February 2016 from First Vice President Timmermans to Minister of Justice Mr Ziobro; Letter of 3 March 2016 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski.] The Polish Government has so far not replied to the Commission on this point.

82. Also the Law on the Public Prosecution Service52 [52 Law of 28 January 2016 on the Prosecutor’s Office, published in Official Journal on 15 February 2016, item 177; Law of 28 January 2016 – Regulations implementing the Act – Law on the Prosecutor’s Office, published in Official Journal on 15 February 2016, item 178.] is important from the perspective of the rule of law and fundamental rights, and requires a fully effective constitutional review, including in individual cases.

83. The law amending the law on the Police and certain other laws53 [53 Law of 15 January 2016 amending the Law on Police and other laws, published in Official Journal on 4 February 2016, item 147.] may also raise questions relating to its compliance with fundamental rights, including privacy and data protection. On 28-29 April 2016, a delegation of the Venice Commission visited Warsaw to discuss the amendments to the Law on the Police and certain other laws, with a view to delivering an opinion on 10-11 June 2016.

Conclusion

84. The Commission considers that as long as the Constitutional Tribunal is prevented from fully ensuring an effective constitutional review, there will be no effective scrutiny of compliance with fundamental rights of legislative acts. This raises serious concerns in regard of the rule of law, notably as a number of particularly sensitive new legislative acts have been adopted recently by the Sejm for which constitutional review should be available.

6) Conclusion

85. For the reasons set out above the Commission is of the opinion that there is a situation of a systemic threat to the rule of law in Poland. The fact that the Constitutional Tribunal is prevented from fully ensuring an effective constitutional review adversely affects its integrity, stability and proper functioning, which is one of the essential safeguards of the rule of law established in Poland. Where a constitutional justice system has been established, its effectiveness is a key component of the rule of law.

86. Respect for the rule of law is not only a prerequisite for the protection of all fundamental values listed in Article 2 of the Treaty on European Union. It is also a prerequisite for upholding all rights and obligations deriving from the Treaties and from international law, and for establishing mutual trust of all EU citizens and national authorities in the legal systems of all other Member States.

87. The Commission is of the opinion that this threat to the rule of law must be addressed as a matter of urgency. The Polish authorities should respect and fully implement the judgments of the Constitutional Tribunal of 3 and 9 December 2015 concerning the appointment of judges. This means in particular that the President should take the oath of the three judges that have been nominated by the previous legislature.

88. Moreover, it is necessary that the Polish authorities respect and publish the judgment of the Constitutional Tribunal of 9 March 2016 concerning the rules on the functioning of the Constitutional Tribunal. They should also publish and comply with all judgments that have been rendered by the Constitutional Tribunal since 9 March or will be rendered in the future.

89. More generally, the Commission underlines that the loyal cooperation which is required amongst the different state institutions in rule of law related matters is essential in order to find a solution in the present situation. This includes that all Polish authorities refrain from actions and public statements which could undermine the legitimacy and efficiency of the Constitutional Tribunal.

90. The Commission invites the Polish Government to submit its observations on the foregoing within two weeks of receipt of this opinion. On the basis of these observations, the Commission stands ready to pursue the constructive dialogue with the Polish government with a view to finding solutions to the concerns set out in this opinion. If the concerns have not been satisfactorily resolved within a reasonable time, the Commission may issue a recommendation.

Done at Brussels, 1.6.2016

For the Commission

Frans TIMMERMANS Member of the Commission