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1825 Days Later: The End of the Ruleof Law in Poland (Part II)Laurent Pech 2021-01-18T16:14:38For Part I see here.3. Defending Judicial Independence while DenyingReality to Save Mutual Trust: The Court of Justice’sMixed ContributionFollowing its seminal 2018 ruling in the Portuguese judges case, the Court’sinfringement judgments and orders have helped limiting the amount of irreparabledamage done to judicial independence. The same cannot be said of the Court’sjudgments in preliminary ruling cases as the Court, in this context, appears reluctantto take full account of the structural reality its own infringement judgments and ordershave accurately depicted. One cannot however save mutual trust when judicialindependence is systemically gone, which is what the Court is seemingly seeking toachieve. This approach may also seem unwise as it seriously increases the risk ofinciting bottom-up resistance from national courts keen to prevent the authoritariangangrene from spreading to their systems.Joined Cases C-558/18 and C-563/18, Miasto #owicz and Prokurator GeneralnyThis judgment originates from two requests for a preliminary ruling submitted bytwo Polish judges. Possibly for the first time ever, these two requests were, inpart, motivated by the referring judges’ “fear of retribution if they do not adjudicatein favour of the State.” And indeed, in yet another unprecedented and sinisterdevelopment, the two judges “were called to account for their decisions to submitthe present requests for a preliminary ruling by way of investigation procedures.”And last November, Judge Tuleya, one of the two referring judges, was unlawfullysuspended and his judicial immunity unlawfully waived by a panel of the “DisciplinaryChamber” (DC) which included a presumed member of the Ministry of Justice’s “trollfarm” denounced by PACE in January 2020. In one last brave move before he wasdenied access to the courtroom and his case files, Judge Tuleya was able to submita preliminary request to the ECJ.While the ECJ ultimately found both requests inadmissible, the Court’s reasoningis particularly instructive, with the ruling itself containing the strongest warning todate that Polish authorities must cease to threaten or expose national judges todisciplinary proceedings for submitting references for a preliminary ruling. Indeed,“the mere prospect … of being the subject of disciplinary proceedings as a result ofmaking such a reference or deciding to maintain that reference” violates EU law.- 1 -As noted in Part I of this post, this warning has remained unheeded. Furthermore,notwithstanding the welcome warning regarding the chilling effect of disciplinaryproceedings, the Court’s ruling in #owicz suffers from three main shortcomings:1. It may be understood as abandoning national referring judges to their fates bydeciding that “not everyjudge in every procedure is in the position to remedypotential violations of judicial independence with a reference to Luxembourg”;2. It fails to adequately make clear that disciplinary investigations also violate EUlaw when they aim to dissuade judges from applying EU law, which has ledauthoritarian-minded authorities to deliberately leave targeted judges in limbo bydelaying the formal initiation of disciplinary proceedings;3. It fails to draw the logical conclusion from the Court’s own observation,to support its finding of inadmissibility, that the investigation proceedingsconcerning the referring judges have since been closed. But “in taking note ofthis, the Court contradicts its own insistence on the fact that the mere prospectof being disciplined is enough to deter judges from discharging their judicial dutyin a truly independent manner”.Case C-791/19 R, Commission v. PolandOn 8 April 2020, the Court’s Grand Chamber granted the Commission’s requestto order the suspension of the application of the national provisions relating to thepowers of Poland’s “Star Chamber” with regard to disciplinary cases concerningjudges. As noted by one of the present authors, this order is both significant andunprecedented: “It is significant, because it makes clear that EU law prohibitsMember States from setting up national disciplinary bodies which, themselves, failto satisfy the guarantees inherent in effective judicial protection. It is unprecedented,to the extent that the ECJ has demanded the immediate suspension […] of theprocessing of all disciplinary cases regarding judges pending before a body whichviews itself as a court notwithstanding multiple judgments to the contrary by threechambers of Poland’s Supreme Court.”It is also worth stressing that the ECJ ordered that Polish authorities refrain fromreferring any disciplinary cases pending before the DC before a panel whosecomposition does not meet the requirements of independence as defined by theCourt, in particular, in its AK judgment. This AK judgment, however, has since beenformally voided by the DC without, as noted in Part I, any reaction from the EuropeanCommission whatsoever.As regards the Court’s order of 8 April 2020, it suffers from one key weakness whichderives from the Commission’s failure to take into account the obvious potentialfor a bad faith and arbitrary use of the procedure to waive judicial immunity underthe auspices of the DC acting hand in hand with Poland’s National ProsecutionOffice. In this respect, one may helpfully recall that in 2016 the office of PublicProsecutor General was merged with that of the Minister of Justice on the basis ofa law described by the Venice Commission as “unacceptable in a State governedby the rule of law”. The ECJ could have prevented this entirely predictable abusivelifting of judicial immunity by tighter language regarding how the notion of disciplinaryproceeding must be understood; by better emphasising that measures which may- 2 -lead to “any dismissal of those who have the task of adjudicating” form part of thedisciplinary regime; and holding that the processing of all cases pending before theDC must be suspended as it appears, prima facie, to be a body not established bylaw.That said, it has always been ludicrous to pretend that the waiving of judicialimmunity by the DC does not amount to a violation of the ECJ order as this wouldallegedly amount to a procedure of a criminal nature. Suffice it to point out in thisrespect that the DC has continued to impose disciplinary sanctions when lifting thejudicial immunity of judges who happened – pure coincidence no doubt – to be themost vocal defenders of judicial independence. It was good but still exasperatingto see the Commission waking up about six months too late when it finally issuedan additional letter of formal notice making clear that Poland is violating EU lawby allowing the DC to decide matters such as cases for the lifting of immunity.Meanwhile, the number of victims of Poland’s rule of law breakdown continues toincrease.Joined Cases C#354/20 PPU and C#412/20 PPU Openbaar MinisterieOn 17 December 2020, the Court’s Grand Chamber held that the existence ofevidence of systemic or generalised deficiencies concerning judicial independencein Poland (or indeed, even evidence of an increase in those deficiencies) cannotin itself suffice to justify a refusal to execute European arrest warrants (EAWs)issued by Polish courts. Instead, each national court (when acting as an executingjudicial authority) must continue to assess in each case whether there is a specificrisk of a breach of the right to a fair trial of the person concerned should he/she besurrendered.Notwithstanding some minor improvements such as the new emphasis on the needto “exercise vigilance” in a situation where rule of law deficiencies have increased,this ruling mostly reiterates the flawed logic of the Celmer ruling. What’s more, tosave mutual trust, the ECJ omitted from its reasoning inconvenient facts such asthe legalisation of the systemic violation of EU judicial independence requirementsorganised by the muzzle law, and the DC’s decision of 23 September 2020 whichformally voided its own ruling in AK.As we wrote in January 2019, by requiring national courts to implement a two-pronged case-by-case assessment before refusing any surrender, the ECJ refusedto accept that “in a situation of systemic attacks targeting the whole judicial system,there is, by definition, already a “real risk” of a breach of the fundamental rights to anindependent tribunal and to a fair trial in every single case.”We must maintain our position. As the Irish Supreme Court diplomatically put it in a2019 judgment, one may question whether “there is then room or need for furtherinquiry” once systemic deficiencies have been found. Indeed, the Court’s reasoningmeans that even if Poland were to become a formal dictatorship and no unanimousagreement was found to sanction Poland under Article 7(2) and (3) TEU, nationalcourts from other EU countries would still need to assess each EAW on a case-by-case basis. EU primary law does not warrant this (misguided) interpretation. Holding- 3 -that the EU law “requirement that courts be independent precludes the possibilitythat they may be subject to a hierarchical constraint or subordinated to any otherbody” is of no help when Polish courts are already subject to systemic interferencesfrom the executive. The compliance of the Celmer two-step test with Article 6(1)ECHR requirements may also be questioned due inter alia to the disproportionateand unworkable burden it imposes on those subjects to EAWs.The right to a fair trial can be said to be systematically violated following the adoptionof the muzzle law in a situation where furthermore the ECJ order of 8 April 2020 isopenly violated and the ECJ judgment of 19 November 2019 formally nullified. At thevery least, the burden of proof should be on the Polish judicial issuing authority. Thepragmatic concern of ensuring the proper working of the judicial cooperation systemembodied by the preliminary mechanism cannot justify disregarding the structuralviolation of the principle of judicial independence, which the ECJ itself described asessential to guarantee the effective judicial protection of individual’s rights under EUlaw. The ECJ ought instead to establish a rebuttable presumption that Polish courtsare no longer independent. This would acknowledge reality without cutting off accessto the ECJ and violating Article 6(1) ECH requirements.One may further consider that Polish courts can no longer be considered “judicialauthorities” notwithstanding the continuing bravery of so many individual judges. Wecannot however leave the right to a fair trial at the mercy of individual judges’ braveryin a situation where each Polish judge may be subject to arbitrary disciplinarysanctions for applying EU judicial independence requirements or refusing to obeyministerial instructions which compel them not to directly answer Celmer-relatedquestions. In practice, the intention of these instructions is to prohibit Polish judgesfrom directly emailing their EU counterparts and force them to correspond via thegovernment. One may also mention additional instructions issued in 2020 (madepublic by Rule of Law in Poland on 11 January 2021) which require presidents ofcommon courts to report to the Ministry of Justice any application of the ECJ AKjudgment and connected rulings issued by Poland’s Supreme Court. The underlyingaim of this reporting system is obvious: to facilitate the initiation of disciplinaryinvestigations should an ordinary court judge dare assessing the independence ofthe “judges” appointed on the back of Poland’s so-called reforms from the standpointof EU law and/or ECHR law. Justice cannot be done in such a situation regardless ofwhether the executive directly or does not directly interfere in a specific case.4. The end of the road and the purge aheadAs observed by Adam Bodnar and Pawe# Filipek, EU institutions, including the ECJ,must always bear in mind that time is absolutely of the essence when it comes topreserving judicial independence in a situation where compliance with EU legalrequirements relating to judicial independence has been made a disciplinary tort!Beyond all else, a widespread judicial purge has already been announced byPoland’s de facto leader last month and preliminary steps have also been taken toorganise non-compliance with the recent seminal judgment of the European Court ofHuman Rights in the case of Guðmundur Andri Ástráðsson v. Iceland.- 4 -Enough report. Enough dialogue. The time to decisively act was yesterday but it isnever too late to do the right thing and implacably enforce the rule of law.- 5 -

1825 Days Later: The End of the Rule of Law in Poland (Part II)

1825 Days Later: The End of the Ruleof Law in Poland (Part I)Laurent Pech 2021-01-13T17:22:56On 13 January 2016, exactly five years ago, the European Commission activatedits rule of law framework for the very first time with respect to Poland. Five yearslater, Poland has become the first ever EU Member State to be simultaneouslysubject to an Article 7 TEU procedure and the special monitoring procedure of theCouncil of Europe.Poland can now be considered the first EU Member State to no longer have anindependent judicial branch following years of sustained attacks targeting Polishcourts, judges and prosecutors culminating in the adoption of the “muzzle law”which has “legalised” the systemic violation of EU and ECHR judicial independencerequirements.To achieve this outcome and reinstate a Soviet-style justice system at the heart ofthe EU legal order, Polish authorities have repeatedly and deliberately violated thePolish Constitution and EU law. As they have done so on so many occasions thesepast twelve months, it is difficult to give a concise account. This two-part post willnonetheless attempt to do so (see here for a comprehensive account by DariuszMazur).Part I below will offer an overview of twelve months of annihilation of judicialindependence before presenting the Commission and the Council’s action – orrather inaction. In light of this pattern of inaction, not to say dereliction of duties, itis submitted that Member States must now follow the lead of the Netherlands and“resort to self-help to protect themselves from a politically compromised judiciary ina Member State where national judges are forbidden from enforcing EU rule of lawstandards”. Forthcoming Part II will offer a critical overview of the Court of Justice’s2020 case law.1. Twelve months of further annihilation of judicialindependence in PolandPrior to 2020, Poland had already become a country where national rulings wereopenly and regularly disregarded; where violation of national and European rulingswere publicly encouraged; and where judges were routinely subject to harassmentand smear campaigns while a plethora of unlawful judicial appointments were made.The year 2020 saw the culmination of this process with the adoption of the“muzzle law”, which, in a nutshell, aims to neutralise the application of EU judicialindependence requirements by introducing new types of disciplinary offences forjudges; politicising criminal proceedings even further by granting the “Disciplinary- 1 -Chamber” (DC) exclusive competence to lift a judge’s immunity; granting theexclusive right to assess whether a judge is independent to the new ExtraordinaryControl and Public Affairs Chamber (ECPAC), which itself lacks independence.Furthermore, major pre-2020 rule of law problems remain.Without being exhaustive (see here for more details), one may mention thecontinuing lack of effective constitutional review. The most significant developmentin this respect is the flagrant violation of EU law committed in April 2020 when, in two“judgments”, the unlawfully composed Constitutional Tribunal (CT) de facto voidedthe ECJ AK judgment in in the name of EU law and without referring the matter tothe ECJ so as not to give it the opportunity to confirm it is no longer a court withinthe meaning of EU law (see however the pending ECHR case of Xero Flor). Mostrecently, and in a particularly ironic development, the government has unlawfullyrefused to publish the (pseudo) abortion “judgment” of its own unlawfully composed“court” following Poland’s biggest demonstrations since the fall of communism.With respect to the Supreme Court, the most noteworthy development is theadoption of resolution of 23 January 2020 by three at that time still independentchambers in which they established that the DC is not a court tout court. And whilethe unlawful nature of the appointment procedure followed by the Polish President isa matter of ongoing litigation before the ECJ, this resolution also makes already clearthat all the appointments made by the Polish President to the Supreme Court sufferfrom flagrant legal flaws. Unsurprisingly Polish authorities have since unlawfullydisregarded this resolution while also organising the unlawful appointment of newFirst President on 25 May 2020.With respect to Poland’s new National Council of the Judiciary (NCJ), evidenceemerged in February 2020 that the new NCJ has been unlawfully composed with thePolish Minister of Justice furthermore publicly confirming that the judges nominatedto the new NCJ were selected by himself on the basis that they “were ready to workon the reforms of the judiciary”. In light of the active role played by the neo-NCJ inhelping with the destruction of judicial independence in Poland, the ENCJ is nowfinalising its expulsion due inter alia to the fact it is now acting “in blatant violationof the ENCJ rule to safeguard the independence of the Judiciary, to defend theJudiciary, as well as individual judges”.With respect to Poland’s new disciplinary regime for judges, the situation hasgone from bad to worse to devastating in this area with currently an infringementaction pending before the ECJ (Case C-791/19) and an additional infringementprocedure launched by the Commission in relation to the “muzzle law”. While theseinfringement procedures are ongoing, Polish judges and prosecutors have continuedto be persecuted on an industrial scale by captured bodies as well as harassed bya secret “troll farm” set up within Poland’s Ministry of Justice. Regarding the latter,the Parliamentary Assembly of the Council of Europe to demand the establishmentof an independent public inquiry no later than 31 March 2020. Unsurprisingly, to thisday, no independent public inquiry has been set up and no one held accountable.By contrast, those seeking to hold these individuals accountable or defend judicialindependence continue to be harassed in a way which is “unworthy of a democracyand a law-governed State.”- 2 -Faced with these multiple and repeated violations on the most basic tenets of therule of law, the Commission and the Council have oscillated  between procrastinationand dereliction of duties.2. Between procrastination and dereliction of duties:The Commission and the Council’s (in)action in2020Little has been done by the Commission and virtually nothing by the Council. Bycontrast, the European Parliament must be commended for repeatedly denouncingthe rule of law situation in Poland and the inaction of both the Commission and theCouncil.In the Council, not a single Article 7 hearing was organised in 2020, with COVID19being used as a convenient pretext first by the Croatian and subsequently by theGerman presidencies of the Council, with the latter not even bothering attendinga debate organised by the European Parliament on this issue on 30 November2020. In other words, in 12 months, the Council was only able to find one hour toorganise a confidential “state of play” discussion on the “developments” in Polandon 22 September 2020. That’s it. About one hour in one year. This is from the sameCouncil which committed itself on 17 November 2020 to “advance the rule of law,support the strengthening of independent and impartial judiciary, oppose externalpressure against judges and national justice systems” when adopting the EU ActionPlan on Human Rights and Democracy 2020-2024. One can only image what wouldbe the situation if the Council had not decided to “advance the rule of law”.With respect to the European Commission, 2020 was yet another year of actingin a too little too late fashion when time is absolutely of the essence. Indeed, intwelve months, the Commission was only able to lodge a single application forinterim measures with the ECJ regarding Poland’s “Disciplinary Chamber” (DChereinafter) and launch a single infringement action with respect to Poland’s muzzlelaw. To make matters worse, the Commission failed to react for months in the faceof repeated violations of the ECJ order of 8 April 2020 which granted the interimmeasures the Commission requested. When finally shamed into action followingthe unusual statement by a sitting ECJ judge making it publicly clear that the ECJorder was being violated, the Commission, instead of returning to the ECJ to askfor the imposition of a daily penalty payment, went for the least possibly effectiveway forward by adopting an additional letter of formal notice on 3 December 2020 inconnection to its pending action against the “muzzle law”. While the Commission’sassessment is correct that Poland continues to violate EU law by allowing the DC “todecide on further matters which directly affect judges”, including  cases for the liftingof judicial immunity, the Commission ought to have returned to the ECJ directly andrequest the ECJ to fine Polish authorities for their violation of the ECJ order as it hadindeed done in the past.Adding insult to injury, the Commission has continued to fail to project any senseof urgency in respect of what is arguably the most flagrant and systemic violation- 3 -of the most fundamental principles underlying the EU legal order committed by aMember State in the history of EU law. This is indeed what the Commission itselfcompellingly demonstrated in its letter of formal notice adopted on 29 April 2020.Considering the damning assessment offered in this letter, one would have thoughtthat the Commission would have done its utmost to bring the muzzle law to theECJ as quickly as possible. Yet one would have been wrong to think so. To brieflydemonstrate the von der Leyen Commission’s irresponsible procrastination on thisfront (further details here, here and here), one may compare its record to the JunckerCommission’s handling of the Polish law relating to the attempted purge of theSupreme Court:• “Supreme Court Purge law” adopted on 8 December 2017 and amended on10 May 2018; LFN adopted on 2 July 2018; Reasoned opinion adopted on 14August 2020; Referral to the ECJ announced on 24 September 2018;Total: Less than 8 months for action to reach ECJ from date of adoption.• “Muzzle law” adopted on 20 December 2019; LFN adopted on 29 April 2020;Reasoned opinion adopted on 30 October 2020; Additional LFN adopted on 3December 2020;Total: 13 months and counting from date of adoption and no ECJ referralyet.This is not to say that the Juncker Commission is beyond reproach. Far from it.Indeed, when looking at the overall number of infringement actions ever since thepre-Article 7 procedure was activated in January 2016, we reach a dismal average ofless than one action per year. Instead of always looking for mostly spurious reasonsnot to act or further delay action, the Commission ought to urgently launch severalinfringement actions in relation to the following issues:1. The unlawfully composed CT considering to violation of the EU Treaties itcommitted in the two cases highlighted above;2. The unlawfully composed and unconstitutionally set up new NCJ due to its rolein repeatedly undermining judicial independence and presiding over flagrantlyunlawful judicial appointments;3. The ECPAC “since its composition suffers from the same flaws” as the DC;4. The unlawful appointment of the current individual presiding Poland’s SupremeCourt;5. The special unit established in 2016 within the national prosecutor’s officetasked with investigating judges and prosecutors, as well as the special team ofdisciplinary commissioners under Poland’s new disciplinary regime for judges asthey both flagrantly violate EU law by inter alia failing to demonstrate any degreeof operational and investigative independence;6. The adoption of unlawful ministerial instructions which aim to create a chillingeffect so as to dissuade Polish judges from complying with inter alia the ECJjudgments in Celmer and AK.In addition, it would be good to see the Commission ceasing to defend the mostpossibly restrictive interpretation of the scope of application of EU law in pendingpreliminary ruling cases as it did most recently in Case C-824/18. This givesthe impression of a “Guardian of the Treaties” keen not to do its job by almost- 4 -systematically refusing to adopt a rule of law enhancing interpretation of EU lawin judicial independence preliminary cases. The von der Leyen Commission hasa choice: Either take its job as Guardian of the Treaties seriously or face theembarrassment of seeing more national parliaments follow the lead of the DutchParliament which recently required the Dutch government to report back by 1February 2021 on the possible launch of an infringement action under Article 259TFEU.(Part II forthcoming)- 5 -