Pech, Laurent

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7 Years Later: Poland as a Legal BlackHoleLaurent Pech 2023-01-17T12:34:317 years after the activation of the pre-Article 7 procedure in January 2016, Polandhas become a “legal black hole”, to borrow the expression used as a warning byAdvocate General Bobek in a case concerning Poland’s arbitrary secondmentregime for judges.In short, the EU is faced with a Member State where all of its top courts are nowunlawfully composed; where every single judicial appointment procedure since2018 is inherently defective due to the involvement of an unconstitutional body;and where core EU and ECHR requirements relating to effective judicial protectionand the fundamental right to an independent court established by law have beenheld “unconstitutional” in 2021 and 2022 by the body masquerading as Poland’sConstitutional Tribunal (CT).This led the Secretary General of the Council of Europe to report last monththat Poland’s obligation to ensure the enjoyment of the right to a fair trial byan independent and impartial tribunal established by law to everyone under itsjurisdiction “is not, at this stage, fulfilled”. Read that again and let it sink in.In another unprecedented warning, the Secretary General identified a threat “tothe future efficiency of the Convention system”. The reason? An exponential rise inthe number of similar applications relating to Poland’s rule of law crisis: more than70 complaints were communicated to Polish authorities by the European Court ofHuman Rights (ECtHR) with the Strasbourg Court also issuing more than 20 interimmeasures in respect of 15 judges in the past year alone.It is difficult not to conclude that the ECtHR is paying the price of the EU’s persistentfailure to act promptly and decisively after years of acting in a too little, too latefashion. In a period of seven years, the European Commission has indeed lodgedwith the ECJ a grand total of four infringement actions and has been sitting on a fifthone regarding Poland’s unlawfully composed CT for more than a year. By contrast,Polish judges have referred no fewer than 39 requests for a preliminary ruling tothe ECJ. In doing the Commission’s job, the referring judges have sacrificed theirprofessional careers in addition to making themselves the target of repeated unlawfulproceedings, sanctions, abuse and threats.It is not that the Commission is not aware of the gravity of the situation. In 2017, theCommission rightly emphasised how the situation “has continuously deteriorated”since the end of 2015 and how the combined effects of multiple legislative changeshave “put at serious risk” the separation of powers. In 2019, the Commission wenta step further and stressed how “the executive and legislative powers now caninterfere throughout the entire structure and output of the justice system”. Most- 1 -recently, in its submissions to the ECJ in Case C-791/19 and Case C-204/21, theCommission accurately stated that the combination and simultaneous introductionof various legislative changes “have given rise to a structural breakdown” anddescribed the changes made to the disciplinary regime for judges as amounting to a“systemic rupture” with Poland’s pre-2015 regime.Considering the above, Poland must no longer be considered as facing a rule of lawcrisis but rather a rule of law breakdown whose key features will be outlined below.This post will then very briefly address the latest bill of January 2023 and whichoffers more façade of change so as to get the Commission to unlock EU recoveryfunding.A bird’s eye view of Poland’s rule of law breakdownPoland’s rule of law breakdown began with the capture of the Constitutional Tribunal.Where are we now, seven years later? Following a judgment of the ECtHR in May2021, it can be concluded that the CT is no longer a tribunal established by law whendeciding cases in formations including any of the three individuals occupying theseats of the properly elected judges due to the grave irregularities committed by theruling coalition in December 2015. Most recently, Poland’s Supreme AdministrativeCourt held that the whole CT is no longer a court as it is “infected” with unlawfulness.The second key body used to organise the autocratic gangrenisation of Poland’sjudicial system is known as the National Council for the Judiciary (NCJ). Thecapture of the NCJ has enabled Poland’s ruling coalition to interfere in all judicialappointment procedures. This has, in turn, led the ECtHR to establish the neo-NCJ’s lack of independence and hold that any court composed of individuals (so-called neo-judges) appointed in a procedure involving the neo-NCJ is systematicallycompromised. Notwithstanding the ECtHR demanding rapid remedial action andPoland’s Supreme Court finding the neo-NCJ to be an unconstitutional body, nothinghas been done so one may expect a continuous flow of ECtHR judgments findingagainst Poland.A third (new) body, known as the Disciplinary Chamber (DC), was used to bullyjudges and prosecutors into submission. Multiple rulings have established thatthe DC is no more than a kangaroo body. This explains why the lawful judges ofPoland’s Supreme Court ruled in January 2020 that all of its resolutions must beheld null and void. A key legal aspect the Von der Leyen Commission irresponsiblydecided to ignore last year.Another new body, known as the Extraordinary Chamber, has been set up byPoland’s ruling coalition to protect its irregularly appointed “judges” and itself frompotential adverse electoral results. It was also established not to be a proper courtby the ECtHR and suspended, in part, by the ECJ in July 2021, yet it continues tooperate.Another chamber of the Supreme Court – the Civil Chamber – was held by theECtHR not to be a court established by law when consisting of individuals appointed- 2 -post 2018 via the neo-NCJ. It follows that any Supreme Court bench consisting of“neo-judges” must be considered an irregular bench in breach of Article 6(1) ECHR.As of today, we have reached a stage where the fundamental right to anindependent court established by law under the Polish Constitution, the ECHR andthe EU Treaties is systemically violated with Polish authorities also casually andopenly violating an increasing number of rule of law related rulings of the ECtHR andECJ (non-exhaustive list):• ECJ judgment of 19 November 2019 in Joined Cases C-585/18, C-624/18 andC-625/18, AK (Independence of the DC)• ECJ judgment of 2 March 2021 in C-824/18, AB (Appointment of judges to theSupreme Court – Actions)• ECtHR judgment of 7 May 2021 in the case of Xero Flor• ECtHR judgment of 29 June 2021 in the cases of Judges Broda and Bojara• ECJ order of 14 July 2021 in Case C-204/21 R, Commission v Poland(Indépendance et vie privée des juges)• ECJ judgment of 15 July 2021 in Case C-791/19, Commission v Poland(Disciplinary regime for judges)• ECtHR judgment of 22 July 2021 in the case of Judge Reczkowicz• ECJ judgment of 6 October 2021 in Case C-487/19, W.#. (Chamber ofExtraordinary Control and Public Affairs of the Supreme Court-Appointment)• ECJ order of 27 October 2021 in Case C-204/21 R, Commission v Poland• ECtHR judgment of 8 November 2021 in the cases of Judges Doli#ska-Ficekand Ozimek• ECJ judgment of 16 November 2021 in Joined Cases C-748/19 to C-754/19,Criminal proceedings against WB and Others• ECtHR judgment of 3 February 2022 in the case of Advance Pharma• ECtHR judgment of 15 March 2022 in the case of Judge Grz#da• ECtHR judgment of 16 June 2022 in the case of Judge #urek• ECtHR judgment of 6 October 2022 in the case of Judge Juszczyszyn• ECtHR interim measure of 6 December 2022 in the cases of JudgesLeszczy#ska-Furtak, Gregajtys and Piekarska-Dr##ekMore lipstick-on-a-pig changes in latest attempt tounlock EU recovery fundingLast June, Polish authorities pretended to meet the Commission’s (irresponsiblyinadequate) judicial milestones by replacing the DC with a new chamber comprisinga majority of neo-judges and introducing a new but bogus judicial independence test.Nothing was done however regarding the unlawfully composed/presided CT; theunconstitutional neo-NCJ; the fake Extraordinary Chamber; the Supreme Court’susurpers; and the “unconstitutionalisation” of core requirements relating to Article19(1) TEU and Article 6(1) ECHR as interpreted by the CJEU and the ECtHR.Cherry on the autocratisation cake, Polish authorities continue to disregard all“inconvenient” CJEU and ECtHR rulings.- 3 -Last month, the Committee of Ministers of the Council of Europe stressed thatthe legislative amendments of June 2022 do “not constitute adequate remedialaction” because, inter alia, they failed to address the neo-NCJ’s deficiencies; thestatus of judges appointed in deficient procedures; the decisions adopted with theirparticipation; the lack of an adequate framework for examining judicial appointments;the continuing risks of disciplinary liability for judges who implement Article 6 ECHRrequirements. In addition, and importantly, Advocate General Collins recently opinedthat the abolition of the DC “does not have the consequence that its resolutions aredeemed to be null and void” as required by EU law due to the “particularly grave”nature of the breach of Article 19(1) TEU committed by Polish authorities.Does the latest (unconstitutional) bill approved by the Sejm last Friday fare better inthis respect? Due to space constraints, let me put it bluntly: It does not and merelyamounts to adding more lipstick on the proverbial pig while plainly disregarding theCommission’s law-making milestone and Article 7(1) recommendation (d).It is to be hoped the von der Leyen Commission has learned from last June’sdebacle and will not (again) prioritise political expediency over the strict enforcementof EU rule of law requirements, including its own (inadequate, in part unlawful)judicial milestones.- 4 -

7 Years Later: Poland as a Legal Black Hole

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7 Years Later: Poland as a Legal Black Hole

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