Rule of Law: European Commission acts to defend judicial independence in Poland

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Series Details IP/17/5367 (20.12.17)
Publication Date 20/12/2017
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Background and further information:

The European Commission decided on 12 September 2017 to send a Reasoned Opinion to Poland regarding the Polish law on the Ordinary Courts Organisation, following the analysis conducted of the response of the Polish authorities to the Letter of Formal Notice sent in July 2017.

The European Commission updated EU foreign ministers ministers on the state of play as regards its dialogue with Poland on the rule of law at the General Affairs Council, Brussels, 25 September 2017.

Separately, Polish President Andrzej Duda proposed changes on the 25 September 2017 to the country’s constitution amid the row over sweeping legal reforms that had caused protests at home and warnings from the European Commission. He presented his own versions of the two draft bills that he had refused to sign into law in July 2017.

European Commissioner Timmermans said he would 'carefully examine' the Polish President's proposals.

The European Commission maintained its position that the Polish Law was incompatible with EU law because by introducing a different retirement age for female judges (60 years) and male judges (65 years), it discriminated against individuals on the basis of gender. The Commission also raised legal concerns that by giving the Minister of Justice the discretionary power to prolong the mandate of judges who have reached retirement age, as well as to dismiss and appoint Court Presidents, the independence of Polish courts was undermined.

The Commission therefore decided to move to the second stage of infringement procedure by sending a Reasoned Opinion (RO). The Polish authorities were given one month to take measures to comply with this RO, otherwise the Commission could decide to refer the case to the Court of Justice of the European Union.

The systemic threat over the rule of law in Poland was first identified formally by the European Commission in January 2016. An investigation was then launched into Poland's first set of measures on the judicial system and engaged in a dialogue with the country's authorities in the framework of a Rule of Law procedure.

The Commission published an Opinion on 1 June 2016 and was met with criticism by the Polish government. Following up on this document, a Recommendation was published on 27 July 2016, reflecting some changes to the judicial reform proposed by the Polish government to address the issues raised but pointing out these had not been enough.

In December 2016, the Commission discussed the state of play of the procedure concerning the Rule of Law in Poland and decided to issue a complementary Rule of Law Recommendation. In February 2017, the country's foreign minister considered the issue to be a 'closed case', without addressing the indications from the Commission.

The government later decided to put forward a further set of four legislative measures reforming the judiciary as a whole - proposals on the National School of Judiciary, on the National Council for the Judiciary, on the Ordinary Courts Organisation and on the Supreme Court.On the 20 December 2017 the European Commission proposed to the Council to adopt a decision under Article 7(1) of the Treaty on European Union against Poland. The Commission had concluded that there was a clear risk of a serious breach of the rule of law in Poland.

Judicial reforms in Poland meant that the country's judiciary was now under the political control of the ruling majority. In the absence of judicial independence, serious questions were raised about the effective application of EU law.

In addition, the Commission decided to take the next step in its infringement procedure against Poland for breaches of EU law by the Law on the Ordinary Courts Organisation, referring Poland to the Court of Justice of the European Union.

Whilst taking these unprecedented measures, the Commission maintained its offer for a constructive dialogue to remedy the situation.

In response, the Polish government said it regretted the development, which it felt was political not legal. It would put an unnecessary burden on mutual relations between Poland and the European Commission. It argued that the recently introduced changes to laws reforming the system of justice in Poland accommodated the expectations of the Commission. Poland was ready to defend its claims at the Court of Justice of the European Union (ECJ) as an independent and impartial judicial body.

In a separate but related development Polish President Andrzej Duda signed into law on the 20 December 2017 two bills reforming the country's key judicial bodies. The two bills reformed the Supreme Court (SN) and the National Judicial Council (KRS). The European Commission had already referred these laws to the ECJ.

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Related Links
EUR-Lex: COM(2017)835: Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law
Conservative Home, 27.01.18: Daniel Kawczynski: The Polish Government is right to pursue judicial reform
Blog: Polish Politics, 09.01.18: How will the European Commission triggering Article 7 affect Polish politics?
Politico, 09.01.18: Polish reshuffle removes controversial ministers
The Guardian, 09.01.18: Poland's prime minister sacks ministers in move to mend ties with EU
Blog: Verfassungsblog, 01.03.18: The Rule of Law in Poland: A Sorry Spectacle
The Conversation, 02.02.18: If you’re not sure why what’s happening in Poland matters so much, here’s what you need to know
Blog: Verfassungsblog, 26.01.18: Free Men and Genuine Judges will Remember about Free Courts
ECFR: Commentary, 22.12.17: Poland’s black Wednesday: Crossing the Rubicon
EurActiv, 21.12.17: Tusk says hopes Poland will avoid more conflicts with Brussels
Poland: Ministry of Foreign Affairs: Press Release, 20.12.17: MFA statement on the European Commission’s decision to launch the disciplinary process against Poland laid out in Article 7 of the TEU
EUObserver, 21.12.17: Hungary veto sets scene for EU battle on Poland
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Poland: President: Press Release, 20.12.17: President signs judiciary reforms,636,president-signs-judiciary-reforms.html
European Commission: DG Communication: RAPID: MEMO/17/5368 (20.12.17): Fact Sheet: Commission action on the Rule of Law in Poland: Questions & Answer
The Guardian, 20.12.17: Poland cries foul as EU triggers ‘nuclear option’ over judicial independence
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Radio Poland, 20.12.17: European Commission triggers Article 7 against Poland,European-Commission-triggers-Article-7-against-Poland
Blog: EU Law Analysis, 23.12.17: The European Commission’s Activation of Article 7: Better Late than Never?
The Guardian, 27.12.17: [Opinion]: Europe’s unprecedented challenge from the authoritarians in the east
Blog: Verfassungsblog, 03.01.18: The Commission takes a step back in the fight for the Rule of Law
The Conversation, 04.01.18: Europe’s illiberal states: why Hungary and Poland are turning away from constitutional democracy

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