Sadurski, Wojciech

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Open Letter to the President of theEuropean Commission regardingPoland’s “Muzzle Law”Wojciech Sadurski 2020-03-09T09:34:48Dear President von der Leyen, As experts specialising in the rule of law, we wrote to you on 11 December to urgeyou to apply for interim measures to put an end to the persecution of Polish judgesand prosecutors both by Polish authorities and by the two (unlawful) bodies they defacto control, the so-called Disciplinary Chamber and the new National Council of theJudiciary. We were gratified that you acted at that time.But now there are new and even more pressing dangers to the integrity of theEuropean Union presented by the Polish situation, and we urge you to take furtheraction.The Polish Government has enacted a “muzzle law” that bars judges from ensuringobservance of the right to a fair trial and from guaranteeing rights deriving from theEU Treaties, including effective judicial protection. The law also prevents judges fromcontrolling the validity of judicial appointments and from criticizing authorities, at therisk of being sent for disciplinary action to the very chamber of the Supreme Courtwhich has already been found to constitute an unlawful body by the Supreme Courtitself following a ruling from the European Court of Justice. In response to this “muzzle law”, which itself must be understood as the Polishgovernment openly refusing to obey the case law of the ECJ, the German DistrictCourt of Appeals in Karlsruhe has now refused to extradite a person sought byPolish authorities because of its assessment that Polish courts can no longer actindependently given that Polish judges can now be subject at any point to arbitrarydisciplinary proceedings and sanctions. This follows on the heels of Norwegiangovernment support for the decision of its national Board of Court Administration towithdraw from planned cooperation with the Polish judiciary for the same reason.The European Union is an integrated matrix of laws and interrelated systems, withfrontline enforcement done by national courts. If the other member states can nolonger rely on the independence of national courts in a particular country, mutualtrust must be suspended as mutual trust is and cannot be “blind trust”. The decisionsby the German judiciary and the Norwegian Court Administration are a sign that theEU’s legal system is already unravelling, and if judicial cooperation can no longer beassured, a major pillar that holds up the EU will soon collapse. - 1 -We commend the Commission for following our December letter with action on 14January 2020 asking the European Court of Justice to suspend the functioning ofthe Disciplinary Chamber. But the action came late. Had interim measures beenrequested last October when the Commission finally announced its decision torefer Poland to the ECJ regarding its extraordinary and scandalous new disciplinaryregime for judges, it might have prevented the damage that we now see. Alarmingly but not surprisingly, the situation has continued to deteriorate further withirreparable damage now being done following the entry into force of the “muzzle law”on 14 February 2020. We urge the Commission to learn from these events. Waitingto bring infringement actions and to fail to simultaneously seek interim measureswhen the rule of law in a Member State is so obviously and blatantly deterioratingon an industrial scale only means that the Commission faces a far more serious andintractable problem to deal with later. The problem does not disappear by ignoring it.This is an urgent moment for action. The Commission must quickly bring anexpedited infringement action against this “muzzle law” and must at the same timeconsider requesting additional interim measures to prevent the “muzzle law” frombeing enforced by connecting these measures to the already pending infringementaction with respect to Poland’s new disciplinary regime for judges. We also askthe Commission to seek to get out ahead of Polish authorities’ obvious attempts todestroy the independence of the Supreme Court which, on current trajectory, willhave been crushed by early May due to the rigging of the rules on the basis of whichthe next First President of Poland’s Supreme Court will be selected when the term ofthe current incumbent expires.Furthermore, the time has come for two infringement actions directly targeting theConstitutional Tribunal, which was unlawfully captured in December 2016 and is nowbeing increasingly used to undermine the application of EU law in Poland, and alsotargeting the new National Council of the Judiciary, which was established on theback of an evident violation of the Polish Constitution and whose active complicityin destroying judicial independence has been established beyond any reasonabledoubt by the European Network for Councils of the Judiciary and Poland’s SupremeCourt. As V#ra Jourová and Didier Reynders themselves have both correctly pointed out,we are not dealing with “judicial reforms” but are facing “a case of carpet bombing”which aims to destroy the Polish judiciary by creating a chilling effect on Polishjudges, that is, to scare them into submission by threatening them with politicallytilted disciplinary action. Given the dangers involved, the Commission’s failure topromptly bring an infringement action against the “muzzle law” is irresponsible if notunforgivable in a situation where multiple judges have already been and continue tobe repeatedly harassed, vilified, sanctioned and threatened with dismissals, jail timeand even death for seeking to uphold the rule of law. We are alarmed that the Commission has yet to act.Adding to our growing sense of alarm, we were disheartened to read that you haveyet to find the time to meet with the Presidents of the European Network of Councils- 2 -for the Judiciary, the Network of Presidents of the Supreme Courts of the EU and theEuropean Judges Association to discuss the worsening rule of law crisis in Poland.To make a bad situation worse, media reports are suggesting that Commissionaction against the “muzzle law” may have been purposefully delayed so as to beused as a bargaining chip to ease ongoing negotiations regarding the EU’s futureMultiannual Financial Framework and to generate support for the Commission’sclimate change legislative proposal. Adding insult to injury, it was recently suggestedthe Commission may not even discuss any eventual infringement action againstPoland for several more weeks.The Commission over which you preside has still a chance to avoid the mistakesmade by the Barroso and Juncker Commissions, so let us repeat the key lessonof the past ten years: When it comes to the deliberate and systemic dismantling ofchecks and balances in a Member State’s constitutional order, time is absolutely ofthe essence. Autocrats always move in quickly to change the facts on the groundso as to present the EU with faits accomplis such as the unlawful appointment ofindividuals masquerading as judges and establishment of new bodies masqueradingas courts. Unless the Commission is prepared to seek the removal of sitting “judges,”require the rehiring of suspended and fired formerly independent judges and demandthe dismantling of existing “judicial” institutions, it must act before these changesbecome entrenched and before the Member State has the chance to complete itsthorough destruction of the rule of law.Following the belated but positive decision of your Commission in finally applyingfor interim measures in respect of the “Disciplinary Chamber”, we had assumed thelesson has been learned that it is important to stop unlawful changes before theyoccur. It would seem we were wrong. We therefore urge you to promptly initiate anexpedited infringement action whose scope ought to be as wide as possible so as toalso prevent the forthcoming planned capture of both Poland’s Supreme Court andSupreme Administrative Court, for instance, by targeting the new rules which haveessentially rigged the election of the next President of the Supreme Court. The current procrastination is akin to dereliction of duty. We are indeed talking about the first EU Member State to be simultaneouslysubject to both the EU’s exceptional monitoring process following the Commission’sactivation of the Article 7 procedure and to the Council of Europe’s ParliamentaryAssembly’s special monitoring procedure. Both were launched due to the relentlessdestruction of judicial independence we have seen since the end of 2015. Theprocess of judicial destruction has been going on for more than four years nowand yet the Commission appears not to have fully grasped how close Poland isto politically capturing its entire judiciary and ending the rule of law in a MemberState of the EU. It is similarly difficult to understand the ongoing delay to bringan infringement action against the “muzzle law” considering the already existingcomprehensive legal assessments of this law, whose only parallels can be foundin authoritarian states. One may for instance refer to the legal opinions producedby Polish Commissioner for Human Rights, the OSCE-ODIHR or the VeniceCommission.- 3 -The Commission under your Presidency must develop a sense of urgency in thisbroader and unprecedented context in which, according to the Commission itself, theend result of the changes pushed by Poland’s ruling party “is that the executive andlegislative powers now can interfere throughout the entire structure and output of thejustice system.”This is not merely a clear and present danger as far as the Polish legal orderis concerned but represents an existential threat to the functioning of the EU’sinterconnected legal system as a whole. To borrow an analogy from computerprogramming, the rule of law may be considered the EU’s legal order’s “operatingsystem”. What is happening in Poland and also in Hungary constitutes a systemthreat which will sooner or later corrupt and cause the failure of the EU’s entiresystem network. If the Commission does not act, then Member States (and other) judiciaries willhave to act to defend themselves by withdrawing judicial cooperation with the Polishjudiciary and ultimately, failing to recognise and enforce the decisions of Polishcourts. To prevent further unravelling of the EU’s core legal system, it is imperativefor the Commission to act without delay. Yours faithfully, Professor Laurent Pech, Middlesex University London Professor Kim Lane Scheppele, Princeton UniversityProfessor Wojciech Sadurski, University of Sydney, University of WarsawProfessor Alberto Alemanno, HEC ParisProfessor Leszek Balcerowicz, Warsaw School of EconomicsProfessor Petra Bárd, Central European UniversityProfessor Gráinne de Búrca, New York UniversityProfessor Paul Craig, University of OxfordDr Tom Gerald Daly, Melbourne School of GovernmentDr Joelle Grogan, Middlesex University London Professor Gábor Halmai, European University InstituteProfessor R. Daniel Kelemen, Rutgers UniversityProfessor Dimitry Kochenov, Groningen UniversityProfessor Tomasz Tadeusz Koncewicz, University of Gda#skDr. Kriszta Kovács, WZB Berlin Social Science Center- 4 -Professor John Morijn, Groningen UniversityProfessor Jan-Werner Müller, Princeton University Professor Vlad Perju, Boston College Professor Sébastien Platon, Bordeaux UniversityTo co-sign this open letter, please leave a comment with your name and affiliation!- 5 -

Open Letter to the President of the European Commission regarding Poland’s “Muzzle Law”

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Open Letter to the President of the European Commission regarding Poland’s “Muzzle Law”

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