Poland is a European Member State since its adhesion in 2004 to the European Union and for half a decade, the Polish government has been reshaping the country’s judicial system incurring in multiple and repeated violations on the most basic tenets of the rule of law, namely, the judiciary independence.
Currently, Poland is embroiled in a legal struggle with the European Union over the legality and legitimacy of its conservative ruling party’s judicial and constitutional reforms, which could lead to serious consequences regarding the future Poland-EU relations.
Regarding the rule of law, article 47 of the Charter of Fundamental Rights of the European Union on the “Right to an effective remedy and to a fair trial” echoes Article 2 of the EU Treaty on the European Union (TEU), which considers “the rule of law and respect for human rights” as being among the values of the European Union. For its part, the second subparagraph of Article 19.1 of the TEU, states that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” Although Poland is excluded from the application of the Charter of Fundamental Rights, in practice, however, the impact of the use of the opt-out clause is minimal, given that the Charter only binds its Member States “in the application of Union law”, which is binding as such on Poland and on the institutions and other bodies of the Union, without extending the competences of the Union in this field.
Background
Focusing on the recent domestic political landscape, the 2015 democratic elections in Poland gradually led to a determined shift in democracy by Polish citizens, placing the ultra-conservative Law and Justice (PiS) at the head of government. Since its arrival in the Government in 2015, the PiS party has been rolling over the judiciary with numerous measures aimed at reducing its independence while defying the democratic values upheld by EU law (Shipley, 2021).
For the first time, on January 13, 2016, the European Commission activated its Rule of Law Framework in relation to Poland, also known as the “pre-Article 7 procedure”. This instrument provides for the launch of a “structured” dialogue with a Member State if there exist “clear indications of a systemic threat to the rule of law”. The Commission, after an assessment, sends a recommendation if it has found that there is “objective evidence of a systemic threat and that the authorities of that Member State are not taking appropriate action to redress it”. Under this procedure, the Commission adopted four successive Rule of Law Recommendations which where not followed by the Polish government and, as a result, the Commission activated the procedure laid down in article 7.1 TEU on December 2017, which is still ongoing.
Among the concerns of the European Union regarding the rule of law in Poland, the Council of the European Union highlights the following issues on its report on the hearing of Poland, held on 22 June 2021, in accordance with Article 7(1) TEU. First, the disciplinary regime for judges, which endangers the independence of the judiciary and could have a chilling effect on the referral of preliminary questions to the CJEU. Second, the continued activities of the Disciplinary Chamber of the Supreme Court, despite the order of the Court of Justice of the European Union of 8 April 2020 in Case C-791/19 R. Third, the role of the Minister for Justice as Prosecutor-General and its impact on the independence of prosecutors as well as the lack of independence of the Constitutional Tribunal and of the National Council for the Judiciary. Finally, the Council refers to the correct application of the principle of primacy of EU law and the lack of implementation by Poland of Court of Justice of the European Union rulings.
The most recent episode took place on 14 July 2021 when the Court of Justice of the European Union (CJEU) issued an interim order (ECLI:EU:C:2021:593) requesting the suspension of the Disciplinary Chamber of the Supreme Court, the functioning of which had been partly suspended by the CJEU’s interim measures on 8 April 2020. One day later, on 15 July 2021, the CJEU issued a judgement (ECLI:EU:C:2021:596) declaring that Poland was in breach of foundational principles of EU Law, particularly, the Court found a breach of Article 19(1) TEU and Article 267 TFEU.
Concerning the violation of article 19(1) TEU, the Court motivated that the Republic of Poland has failed to guarantee the independence and impartiality of the Disciplinary Chamber; has allowed the content of judicial decisions to be classified as a disciplinary offense involving judges of the ordinary courts; has conferred the President of the Disciplinary Chamber the discretionary power to designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of the ordinary courts and ultimately, Poland has failed to guarantee respect for the rights of defence of accused judges of the ordinary courts.
Concerning the violation of article 267 TFUE, the Court reasoned that the breach of EU law was produced when allowing the right of courts and tribunals to submit requests for a preliminary ruling to the Court of Justice to be restricted by the possibility of triggering disciplinary proceedings.
A similar conclusion, but in relation to the European Convention on Human Rights (ECHR), was reached by the European Court in Strasbourg on 22 July, 2021. The Court stated that the procedure for appointing judges had been unduly influenced by the legislative and executive powers. Concretely, the Court stated that the Disciplinary Chamber was not a “tribunal established by law” within the meaning of the European Convention.
However, the Polish Constitutional Tribunal, whose level independence could hardly be called adequate after the reforms by the PiS party (Cabral, 2021), directly challenged the ECJ. The Polish Constitutional Tribunal argued that the interim measures ordered by the ECJ should be considered as incompatible with the Polish Constitution, mainly, if they relate to the shape and functioning of the judiciary, and therefore, not enforced. Contrary to the EU principles, the Minister Michal Wojcik, in a statement to the press, affirmed that “the Constitution is the highest law in our country. If it were otherwise, it would mean that we are not a sovereign state. We did not agree to this in the EU treaties” (Reuters, 2021).
Rule of Law Conditionality:
In December 2020, the European Parliament and the Council adopted a new piece of legislation aimed at protecting the rule of law in the Member States of the Union by linking the funds of the European Union to rule of law standards. The notion of a connection between the rule of law and European funding was emerged in 2017 (Pech and Scheppele, 2017) after other attempts to rein in rule of law backsliding Member States, especially through art. 7 TEU, had failed.
The mechanism, which was adopted in December 2020 after a compromise with Warsaw and Budapest, which were threatening to block the EU’s multi-annual budget, went into effect in January 2021 and will be implemented as soon as the Court of Justice, which Hungary and Poland referred to in March, rules on its conformity with the treaties (Joannin, 2021).
The Regulation 2020/2092 of the European Parliament and of the Council, of 16 December 2020, on a general regime of conditionality for the protection of the Union budget, also known as rule of law conditionality, gives the Commission an unprecedented power to request that a Member State be punished by suspending payment of some or all budget funds in certain circumstances and by a qualified majority vote (Bogdanowicz and Buras, 2021). The Regulation’s comprehensive definition of the rule of law includes legality, legal certainty, the prohibition of executive arbitrariness, effective judicial protection, separation of powers, non-discrimination, and equality before the law.
The main caveat of this Regulation is that it is firmly related to the Union’s budget, which is a significant restraint on its future implementation. In fact, this implies that if a violation of the rule of law is discovered, the Commission must then prove an impact on the Union’s budget in a second phase. The Regulation’s scope specifically includes violations of the rule of law that risk affecting the Union’s budget in a “sufficiently direct way”. Therefore, a simple violation of the rule of law norms in a Member State would not be enough to activate the mechanism.
Conclusion:
The Rule of Law Conditionality constitutes a big incentive and a step towards the solution regarding the rule of law crisis in the case of Poland as it is the largest overall recipient of EU funds. Moreover, the Council and Parliament, are free to amend the Regulation at any time in the future, using qualified majority voting, to tighten the sanctions, reduce the conditions, and broaden the scope of the Regulation to better protect the rule of law in the Member States.
Bibliography:
Amnesty International (2021), “Poland: briefing on the rule of law and independence of the judiciary in poland in 2020-2021”
Cabral, T. (September, 2021), “On the recent Polish challenges to the primacy of EU Law”, available at: https://officialblogofunio.com/2021/09/02/editorial-of-september-2021/.
Council of the European Union (July, 2021), “Rule of Law in Poland – Article 7(1) TEU Reasoned Proposal – Report on the hearing held by the Council on 22 June 2021”.
Drinóczi, T. And Bień-Kacała, A. (July, 2020), “Rule of Law, Common Values, and Illiberal Constitutionalism: Poland and
Hungary within the European Union”, Routledge.
Forthomme, C. (September, 2021), “European Law Under Attack from Hungary and Poland”, Impakter, available at: https://impakter.com/european-law-under-attack-hungary-poland/.
Garot, MJ. (2020), “The EU and the Principle of Judicial Independence”, Global and Business Law, Science and Humanities.
Joannin, P. (April, 2021), “Protecting the checks and balances to save the Rule of Law”, Robert Schuman, available at: https://www.robert-schuman.eu/en/european-issues/0590-protecting-the-checks-and-balances-to-save-the-rule-of-law.
Kirst, N. (April, 2021), “Rule of Law Conditionality: The Long-awaited Step Towards a Solution of the Rule of Law Crisis in the European Union?”, Insight European Papers, vol. 6, nº1.
Lacny, J. (April, 2021), “The Rule of Law Conditionality Under Regulation No 2092/2020—Is it all About the Money?”, Hague Journal on the Rule of Law.
Łazowski, A. (July, 2021), “Is Polexit on the cards?”, CEPS, available at: https://www.ceps.eu/is-polexit-on-the-cards/.
López, J. (2019), “De nuevo (y todavía) Polonia: Rule of Law y art. 7 TUE en el Parlamento Europeo y el Tribunal de Justicia”, Teoría y Realidad Constitucional, nº 44.
Mangas, M. (2018), “Polonia en el punto de mira: ¿Solo riesgo de violación grave del Estado de Derecho?”, Revista General de Derecho Europeo.
Nguyen, T. (December, 2020), “The EU’s new rule of law mechanism: How it works and why the ‘deal’ did not weaken it”, Hertie School Jacques Delors Centre.
Pech, L. and Scheppele, K. (2017), “Illiberalism Within: Rule of Law Backsliding in the EU”, Cambridge Yearbook of European Legal Studies 3.
Pech, L., Mazur, D. And Wachowiec, P. (January, 2021), “1825 Days Later: The End of the Rule of Law in Poland”, available at: verfassungsblog.de/1825-days-later-the-end-of-the-rule-of-law-in-poland-part-i/.
Pech, L., Mazur, D. And Wachowiec, P. (March, 2021), “Poland’s Rule of Law Breakdown: A Five‐Year Assessment of EU’s (In)Action”, Hague Journal on the Rule of Law.
Zelazna, E. (January, 2020), “The Rule of Law Crisis Deepens in Poland after A.K. v. Krajowa Rada Sadownictwa and CP, DO v. Sad Najwyzszy”, Insight European Papers, vol. 4, nº2.
Zerka, P. (August, 2020), “Poland in the EU: How to lose friends and alienate people”, European Council on Foreign Relations.
By Blanca Prat: The European Institute for International Law and International Relations.
