Pech, Laurent

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1460 Days Later: Rule of Law in PolandR.I.P. (Part I)Laurent Pech 2020-01-13T08:13:34On 13 January 2016, exactly four years ago today, the Commission activated its ruleof law framework for the very first time with respect to Poland (for our previous 2-partpost assessing the situation as of 13 January 2019 see here).During this time, Poland has become the first EU Member State:• to be threatened with the payment of a penalty payment of at least €100,000per day should it continue to ignore an interim order adopted by the ECJ in July2017;• to be subject to the exceptional procedure laid down in Article 7(1) TEU inDecember 2017;• to have seen its newly “redesigned” National Council of the Judiciary suspendedfrom the European Networks of Councils for the Judiciary for its lack ofindependence in August 2018;• to have seen its self-described “judicial reforms” provisionally suspended by theCourt of Justice via two interim orders in October and December 2018;• to have been found by the Court of Justice to have failed to fulfil its Treatyobligations under the second subparagraph of Article 19(1) TEU not once buttwice in June and November 2019;• to have been referred to the Court of Justice by the Commission for makingit possible to subject ordinary court judges to disciplinary investigations,procedures and sanctions on the basis of the content of their judicial decisions,including the exercise of their right under Article 267 TFEU to requestpreliminary rulings from the Court of Justice.As if to outdo itself when it comes to annihilating judicial independence, Poland’sruling party has rushed an unprecedented piece of legislation last month. Thisbill “raises the question of whether Poland wants to remain in the EU” by forcingnon-compliance with EU rule of law requirements and strengthening an arbitrarydisciplinary regime which has already enabled a multitude of kangaroo disciplinaryproceedings against any judge at any point in time for as long as needed from thepoint of view of the ruling party.As recently and accurately observed, “no member state in the history of the EU hasever gone as far in subjugating its courts to executive control as the current Polishgovernment. The Polish case has become a test whether it is possible to create aSoviet-style justice system in an EU member state; a system where the control ofcourts, prosecutors and judges lies with the executive and a single party”.This (two-part) post will highlight the main developments, primarily from the pointof view of EU law, which took place in 2019. The most noteworthy one is the Court- 1 -of Justice’s two infringements rulings which have found Poland to have violated theprinciples of the irremovability of judges and judicial independence and the Courtof Justice’s first preliminary ruling regarding the so-called “Disciplinary Chamber”of Poland’s Supreme Court. The latter ruling has proved particularly impactful as ithas directly led a not-yet-captured chamber of Poland’s Supreme Court to find theDisciplinary Chamber not to constitute a court within the meaning of EU and PolishLaw. These two rulings have led in turn Polish authorities to put forward what may bedescribed as a “de facto Polexit bill”.This means that the warning addressed to the new President of the EuropeanCommission last month by multiple NGOs and scholars remains more valid thanever: “The attacks on judicial independence we are witnessing in Poland areunprecedented in the history of the EU and legal chaos is bound to ensue andspread because Polish authorities are openly and purposefully ignoring their dutiesand obligations as a matter of Polish as well as EU law. If not promptly addressedthrough interim measures, we have no doubt this will mark the beginning of the endof the EU’s common and interconnected legal order.”It is time for European and national actors to WAKE UP and realise we may soonreach a tipping point, with the EU’s interconnected legal ecosystem facing amedium-term risk of collapse due to the premeditated and ongoing “destruction ofthe independence of the judiciary” we are witnessing in Poland, a process whichseems to be inspiring an increasing number of national governments with exhibit Abeing Orbán’s Hungary.1. Going M.I.A. in 2019: The CouncilBefore outlining the Court of Justice’s decisive contribution in 2019, one may notethe Council’s failure to organise any Article 7(1) TEU hearing in respect of Polandsince it held one in December 2018. One should not understand the lack of anyArticle 7(1) hearing as meaning that the Commission’s Article 7(1) recommendationshave been met. Indeed, not a single one of them has been fully implementedby Polish authorities. In fact, the situation is worse than ever, which is why theCommission had no choice but to conclude in February 2019 that due to “thecumulative effect of the recent changes affecting the judiciary”, which “are limitingits independence” and “infringing upon the separation of powers”, the executive andlegislative powers can now “interfere throughout the entire structure and output ofthe justice system”.You have read this correctly: Poland’s executive and legislative powers, defacto controlled by Poland’s de facto Great Leader, can now interfere at will withthe functioning and outputs of Polish courts (one may note in passing that theCommission’s diagnosis confirms the ill-advised nature of the so-called Celmertest devised by the ECJ as we noted last year). This interference is now happeningopenly, through disciplinary charges or administrative measures, such as earlydismissals from secondment or temporary suspension by captured presidents ofcourts, but also more indirectly by putting pressure on judges not to adjudicate in acertain way whenever the interests of the ruling party demand it.- 2 -What has the Council done to address the situation? Not much or rather, as little aspossible. Two explanations may be advanced: the Romanian government, in chargeof the rotating presidency of the Council, was too busy undermining the rule of lawin Romania to organise a hearing while the otherwise very active Finnish Presidencydid not want to be seen as interfering with Poland’s parliamentary elections ofOctober 2019, which is why it prioritised the organisation of the first Article 7(1) TEUhearing held in respect of Hungary in September 2019 followed by another one inDecember 2019.In concrete terms, this means we only saw the Commission give a few updates onthe rule of law situation in Poland during the past 12 months: 18 February 2019: The Commission provided the Council with an update onthe latest developments regarding judicial reform in Poland. Member statesconsidered that recent legislative changes concerning the Supreme Courtlaw were a positive development and encouraged the Polish authorities toaddress the remaining issues raised by the Commission.9 April 2019: The Commission provided an update on the state of play inrelation to Poland.18 July 2019: The Council took stock of the state of play as regards therule of law in Poland in the light of recent developments, in particular thejudgment of the European Court of Justice on Poland’s Supreme Court law.16 September: The Commission updated ministers on the developmentsregarding the rule of law in Poland following the meeting of the GeneralAffairs Council in July.10 December 2019: The Commission updated ministers on the latestdevelopments, including the recent judgments of the European Court ofJustice concerning Polish rules on the retirement age of judges and publicprosecutors and the new Disciplinary Chamber of the Polish SupremeCourt.Beyond the issue of the two rotating presidencies of the Council’s own priorities, itwould appear that an additional pretext was used by some EU governments to justifytheir not untypical torpor: the alleged need to wait to see how Polish authoritieswould comply (or not) with the Court of Justice’s forthcoming infringement andpreliminary rulings considering the increasing number of pending cases before theCourt, and which directly or indirectly raise most of the issues highlighted in theCommission’s Article 7(1) reasoned proposal.As we shall now see, Polish authorities have only publicly accepted to comply withthe Court’s two infringement rulings to date primarily because these rulings didnot prevent them from progressively capturing the Supreme Court from within. Assoon as the Court of Justice provided an interpretation of EU law which led a not-yet-captured chamber of Poland’s Supreme Court to find unlawful two of the shambodies established or captured by the ruling party (i.e. the “Disciplinary Chamber”- 3 -of the Supreme Court and the ENCJ-suspended National Council of the Judiciary),a new bill was put forward to organise and legalise non-compliance with the judicialindependence requirements established in EU law, in obvious breach of both thePolish Constitution and the EU Treaties.2. The Court of Justice’s entrée en pisteAs of today, two infringement rulings – Case C-192/18 and Case C-619/18 – andone preliminary ruling – joined Cases C-585/18, C-624/18 and C-625/18 – havebeen issued by the Court of Justice. In addition, one infringement case regardingPoland’s new disciplinary regime for judges (C-791/19) and, to the best of ourknowledge, eighteen requests for a preliminary ruling raising judicial independenceissues, are now pending before the Court.The two infringement rulings previously mentioned went against Poland, whichwas not in the slightest surprising considering the obvious arbitrary nature of thechanges pushed by Polish authorities regarding the retirement regime of PolishSupreme Court judges, Polish ordinary court judges and public prosecutors. Theseinfringement rulings having been analysed elsewhere (see e.g. here and here),let us just emphasise how they show the lack of good faith of Polish authoritieswhen it comes to the real reasons underlying their so-called “reforms”. Indeed, whilemembers of Poland’s ruling party have been keen to constantly emphasise theneed to “decommunise” the judiciary (even claiming that younger judges educatedpost 1989 would allegedly follow the behavioural patterns of their older, allegedly“communist”, colleagues), the justifications put forward before the Court to justifythe retirement “reforms” were of a different nature. For instance, the lowering of theretirement age of Supreme Court judges to 65 was allegedly needed to standardisetheir regime “with the general retirement age applicable to all workers in Poland”while in the case of female ordinary court judges, Polish authorities explained thelowering of their retirement age to 60 (from 67) “on account of their particular socialrole connected with motherhood and child raising”.With respect to the Supreme Court, the Court observed, in a highly unusual fashionbut commensurate to the Polish government’s bad faith, that the “explanatorymemorandum to the draft New Law on the Supreme Court contains informationthat is such as to raise serious doubts [our emphasis] as to whether the reform ofthe retirement age of serving judges of the S#d Najwy#szy (Supreme Court) wasmade in pursuance of such objectives, and not with the aim of side-lining a certaingroup of judges of that court [our emphasis]”. The Court therefore had no choicebut to conclude that Polish authorities did not pursue a legitimate objective whenthey sought to lower the retirement age of the Supreme Court judges in post priorto the adoption of the law in dispute. Similarly, the Court of Justice found the newPolish rules relating to the retirement age of judges of ordinary courts and publicprosecutors, adopted in July 2017, to be in violation inter alia of the principle ofirremovability of judges, which is inherent in judicial independence.In another seminal (preliminary) ruling (analysed e.g. here and here), the Court ofJustice meticulously explained how the referring chamber of Poland’s Supreme- 4 -Court can ascertain whether the so-called Disciplinary Chamber (hereinafter: DC)– which is also one of the problems highlighted by the Commission in its Article7(1) reasoned proposal –  is sufficiently independent to constitute a court withinthe meaning of EU law. In the same preliminary ruling, the Court also explainshow to ascertain the independence (or lack thereof) of the new National Councilof the Judiciary (hereinafter: NCJ) – another body which has been highlighted asproblematic by the Commission and many other organisations. Overall, the ECJ’sinterpretation makes it implicitly obvious that neither the DC nor the NCJ satisfy thebasic requirements of independence established by EU law, as previously madeexplicitly clear by Advocate General Tanchev.Unsurprisingly, therefore, the referring court (the Labour and Social SecurityChamber of the Supreme Court) subsequently found on 5 December 2019, on thebasis of a meticulous and compellingly argued judgment, that the neo-NCJ doesnot offer a sufficient guarantee of independence from the legislative and executiveauthorities before ruling that the “Disciplinary Chamber” does not constitute a “court”within the meaning of EU law and therefore not a court within the meaning of Polishlaw as well.With respect to the neo-NCJ, one may recall that it has been suspended from theENCJ since August 2018 and that it was not merely established in breach of thePolish Constitution but also most likely unlawfully constituted on the basis of the2017 (unconstitutional) law which changed the appointment procedure for thejudicial members of the NCJ while also providing “for the early termination of themandate of all judicial members on the Council”. To put it simply, it is likely thatthe judicial members of the NCJ were not supported by the required number ofjudges provided by the new (unconstitutional) law and/or only supported by eachother or judges seconded to the Ministry of Justice. This is likely the reason whynational authorities have openly ignored (you read that correctly) a final ruling fromthe Supreme Administrative Court ordering the Sejm to disclose the names of thejudges supporting the NCJ candidates.This blatant but far from unique violation of the most basic understanding of therule of law by Polish authorities was rightly deplored by the Supreme Court inits judgment of 5 December 2019 which applied the ECJ preliminary ruling of 19November 2019.(Part II forthcoming)- 5 -

1460 Days Later: Rule of Law in Poland R.I.P. (Part I)

1460 Days Later: Rule of Law in Poland R.I.P. (Part II)

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1460 Days Later: Rule of Law in Poland R.I.P. (Part II)

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