Pech, Laurent

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A Letter to the European CommissionLaurent Pech 2021-03-28T18:15:1928 March 2021Ursula von der LeyenPresident of the European CommissionV#ra JourováVice-President of the European CommissionDidier ReyndersMember of the European CommissionDear President,Dear Vice-President,Dear Commissioner,Further to the letter of December 2020, endorsed by more than 5,000 judges andprosecutors of the Member States, we, the representatives of Polish civil societyorganisations and European scholars specialising in EU law and human rights,are writing to you once again in connection with the worsening rule of law crisis inPoland. We have now reached a stage where independent judges seeking to applyEU law and the Court of Justice’s judgments are threatened with abusive criminalcharges and coercive measures. We urge you therefore to urgently adopt concretelegal measures to prevent the further destruction of the rule of law in Poland.In particular, we would like to ask you to immediately refer Poland to the Courtof Justice regarding the “Muzzle Law” and the functioning of the DisciplinaryChamber, and to simultaneously submit a comprehensive application forinterim measures – with the aim of having them granted as soon as possible.The content of such a request and its grounds are set out later in this letter.The deadline set by the Commission in its additional reasoned opinion addressed tothe Polish government regarding the “Muzzle Law” and the suspended DisciplinaryChamber passed at the end of February 2021. Even so, the Polish authorities havenot stopped systematically breaching EU law and ignoring the Court of Justice’srulings.At the same time, Polish authorities have significantly and deliberately increasedtheir activities intended to produce irreversible legal effects and to organise apermanent breach of EU requirements of judicial independence before the pending- 1 -action in Case C-791/19 and the Commission’s expected action in the mentionedcase are decided by the Court of Justice.Notwithstanding Poland’s requirement to suspend the operation of the DisciplinaryChamber in disciplinary cases regarding judges, this body – which is not a “court”within the meaning of EU and Polish law – is still unlawfully suspending Polishjudges in their official duties and authorising the prosecution of national judges oncriminal charges. Apart from the well-known decisions of the Disciplinary Chamberto suspend Judges Pawe# Juszczyszyn, Beata Morawiec and Igor Tuleya, this bodyis planning further actions in the immediate future. On 21 April 2021, the DisciplinaryChamber is planning to decide on the detention and the use of coercive measuresagainst Judge Igor Tuleya in order to press criminal charges against him for thecontent of his ruling. On the following day, this body will be dealing with the matterof lifting the immunity of Judge Józef Iwulski, who is the President of the Labour andSocial Security Chamber of the Supreme Court, with the aim of preventing the Courtof Justice to decide on requests for preliminary ruling referred by this chamber.Simultaneously, the Public Prosecutor’s Office, under the total control of the Ministerof Justice, has requested the Disciplinary Chamber to authorise criminal prosecutionand to suspend a number of judges of the Criminal Chamber of the Supreme Court.These include Judge W#odzimierz Wróbel, who received overwhelming support inthe recent elections of the First President of the Supreme Court, although the PolishPresident decided to appoint another person, who was nominated to the SupremeCourt by the National Council of the Judiciary in its current unlawful membership.Other judges of the Criminal Chamber, including its President, Judge Micha#Laskowski, as well as the former First President of the Supreme Court, JudgeMa#gorzata Gersdorf, are also targeted by the Public Prosecutor’s Office. Asreported in the media, the prosecution authorities intend to press criminal chargesagainst judges who decided to transfer disciplinary cases of advocates to theCriminal Chamber rather then allowing their examination by the suspendedDisciplinary Chamber. It should be borne in mind that, having suspended thefunctioning of this body, the Court of Justice also required Poland to refrain fromreferring all cases to the Disciplinary Chamber before a panel whose membershipdoes not satisfy the requirements of independence. These requirements aremanifestly not met by any formations of this body.Simultaneously, the Polish parliament is considering further amendments to theLaw on the Supreme Court, which are important from the point of view of itsindependence. A number of its provisions are to come into force within 14 days ofthe publication of this law in the official journal, including those which allow the PolishPresident to arbitrarily appoint interim presidents of the Supreme Court’s chambers,without the need to hold an election procedure in each chamber. This measure issimilar to the new provisions on the election of the First President of the SupremeCourt of 2020, which the Commission rightly raised in Poland’s chapter of its Ruleof Law Report of September 2020. The legislative process for this law is expectedto be completed in the coming days, which means that this act will be waiting for thePresident’s signature and publication in the official journal.- 2 -Additionally, the members of the Disciplinary Chamber, as well as the currentunlawfully appointed First President of the Supreme Court, have consistentlydemanded that the said President of the Labour and Social Security Chambertransfer the files of the cases in which that chamber requested the Court of Justice togive preliminary rulings on the status of individuals appointed to the Supreme Courtin gross breach of the law following the nomination procedure before the NationalCouncil of the Judiciary in its current membership. We would like to reiterate that thecurrent First President of the Supreme Court is also in this group.Furthermore, on 28 April 2021, the Constitutional Tribunal – which is a body thatlacks independence according to the Commission’s own assessment – is to considera question of law referred to it by the Disciplinary Chamber the day after it wassuspended by the Court of Justice. The unlawfully composed Constitutional Tribunalwill pretend to have the jurisdiction to examine the constitutionality of Article 4(3)TEU and Article 279 TFEU, insofar as they require a Member State to comply withinterim measures concerning the system and the functioning of the national judiciary.These circumstances relate directly to the Commission’s recent infringementprocedure mentioned above. The continued functioning of the DisciplinaryChamber and the unlawful appointment of its members, and other individualsappointed to the Supreme Court at the request of the National Council ofthe Judiciary in its current unlawful membership, severely threatens theindependence of Polish courts and will produce irreversible legal effectsresulting in a permanent breach of EU law and the requirements of the rule oflaw.The expected decision of the Disciplinary Chamber to allow for detention againstJudge Igor Tuleya may mark the first time in the European Union when force isused against a national judge for the content of his ruling. The intention to presscriminal charges against judges, with the complicity of a body which patently doesnot constitute a “court”, would exacerbate the “chilling effect” experienced by themembers of Poland’s judiciary and seriously undermine the effective and uniformapplication of EU law by the Polish courts. Faced with the prospect of arbitrarycriminal or disciplinary sanctions, judges will be reluctant to apply EU law, inparticular the requirements related to effective judicial protection.Decisions of the Disciplinary Chamber to waive immunity and to suspend numerousjudges of the Criminal Chamber and the Labour and Social Security Chamberof the Supreme Court, including their presidents, will have equally irreparableconsequences and will mark the beginning of the end of mutual trust in respectof Poland. In this situation, the current unlawfully appointed First President of theSupreme Court will be able to decide, on her own, to transfer the files of pendingcases to two new chambers. This will mean that several preliminary references tothe Court of Justice of key importance to the entire EU legal order will be neutralisedand no longer relevant. We are convinced that the main purpose of the actions ofthe prosecutor’s office against these judges is indeed to prevent both the Courtof Justice from dealing with those essential preliminary ruling questions and theSupreme Court from applying already decided preliminary ruling cases. This riskwill be further increased by the outgoing amendments to the Law on the Supreme- 3 -Court, which allow the Polish President to appoint interim presidents of the SupremeCourt’s chambers.The expected outcome of these developments will be to block any possibility oftaking advantage of any mechanisms provided in EU law to examine the statusof individuals unlawfully appointed to the Supreme Court in gross breach of thePolish Constitution and EU law. This will seriously exacerbate Poland’s rule of lawbreakdown which has resulted, among other things, in the lack of respect for theeffective judicial protection and the requirements of the rule of law in proceedingsbefore Poland’s top court.At the same time, the continued operation of the remaining solutions that arechallenged by the Commission in its infringement procedure undermine EU law.The mere prospect of disciplinary and criminal sanctions for the content of judicialdecisions will exacerbate the “chilling effect” which we have already mentioned. Theexclusive jurisdiction of the Extraordinary Appeals and Public Affairs Chamber –a body which suffers from the same legal flaws as the Disciplinary Chamber – incases regarding the status of individuals appointed to Polish courts at the requestof the National Council of the Judiciary in its current membership, in parallel withthe requirement to discontinue such proceedings, is resulting in tens of thousandsof decision existing in the Polish legal system which are issued by bodies whichflagrantly violate the EU criteria for effective judicial protection. The new provisionsrequiring judges to disclose specific information about their non-professionalactivities, in particular their membership in judicial associations, also aim to createthe “chilling effect” by stigmatising judges and restricting their ability to exercise theirfundamental rights. As currently drafted, these provisions are disproportionate andincompatible with the right to respect for private life, freedom of association, and theright to the protection of personal data as guaranteed by the Charter and the GeneralData Protection Regulation.For all these reasons, we urge you to refer the case to the Court of Justicewithout more delay and to apply for a broad set of interim measures, evenbefore the Polish government submits its observations, pursuant to Article160(7) of the Rules of Procedure – to avoid the usual dilatory tactics of thePolish authorities. Only in this way will it be possible to stop the imminentthreat to the rule of law and to contain the crisis.In this respect, it is essential that the proposed application for interim measurescovers as broad a set of issues as possible. Accordingly, we would like to ask youto consider submitting a request to require the Republic of Poland, immediately andpending the final judgment:1) to suspend the application of the provisions of Article 110 § 1(1)(b) and (2) andArticle 110 § 2a and 2b of the Law on the organisation of the ordinary courts of 27July 2001, as well as Article 3(5), Article 27 and Article 73 § 1 of the Law on theSupreme Court of 8 December 2017 – which form the basis for the jurisdiction of theDisciplinary Chamber in cases concerning judges;- 4 -2) to suspend the application of the provisions of Article 42a § 1 and 2 and Article107 § 1(2) and (3) of the Law on the organisation of the ordinary courts of 27 July2001, as well as Article 29 § 2 and 3 and Article 72 § 1(2) and (3) of the Law on theSupreme Court of 8 December 2017 – which prohibit the courts from examining theauthority of other judges or courts to adjudicate and provide for disciplinary sanctionsfor judges for undertaking such an examination;3) to take all necessary measures to ensure that the pending disciplinary andcriminal proceedings against judges, as well as investigations before the initiation ofdisciplinary proceedings, regarding both the violation of Article 107 § 1(1)(2) and (3)of the Law on the organisation of the ordinary courts of 27 July 2001 or Article 72 §1(2) and (3) of the Law on the Supreme Court of 8 December 2017, as well as thoserelated to the content of judicial decisions – conducted before competent authoritiesor courts – are suspended;4) to refrain from allowing individuals appointed to the Supreme Court – including theDisciplinary Chamber and the Extraordinary Appeals and Public Affairs Chamber –on the motion of the National Council of the Judiciary formed in accordance with theprocedure established by the provisions of the Law of 8 December 2017 amendingthe Law on the National Council of the Judiciary and certain other acts to refer andexamine cases;5) to take all necessary measures to ensure that the judges with respect to whomthe Disciplinary Chamber has authorised criminal prosecution or detention have theopportunity to have these decisions examined by the Supreme Court composed ofjudges other than those referred to in point 4, and in proceedings which satisfy therequirements of effective judicial protection;6) to take all necessary measures to ensure that information contained in thedeclarations submitted by judges, as referred to in Article 88a § 1 of the Law on theorganisation of the ordinary courts of 27 July 2001, are not publicly available;7) to inform the European Commission, no later than one month after being notifiedof the order regarding the interim measures, and then regularly – every month –thereafter, of all the measures it has adopted or plans to adopt in order to fullycomply with that order.For obvious reasons, we do not have access to the documents from the pendinginfringement procedure. Nevertheless, we are convinced that this will be one of themost important cases ever brought before the Court of Justice in the history of theEuropean Union. We are also aware of the Commission’s long-standing policy ofreferring only those cases where the Commission is certain of winning to the Court ofJustice. But we also know that, in its recent case-law, the Court of Justice confirmedthe extended scope of the second subparagraph of Article 19(1) TEU, which nowcovers a remarkably wide range of measures and practices of the Member Statesthat might jeopardise effective judicial protection and the rule of law. Instead ofalways waiting for the Court of Justice to lead the way, the Commission must fulfilits role as Guardian of the Treaties, must stop acting in a too little too late fashion,- 5 -and finally face the reality that Poland has become the country which has dismantleddemocracy and the rule of law the most in the world since 2015.The requested application for interim measures must reflect this reality and theexistential threat to the functioning and future of the EU legal order. We do hopethat the Commission’s legal service is aware of the extreme gravity of the situationin Poland and stands ready to argue accordingly. In any case, we remain at yourdisposal should you require additional information on the points outlined above. Weonce again urge you to act promptly and meaningfully.What is at stake in this case is the independence of the whole of the judiciary inPoland. More statements, dialogue and reports are not going to contain, let alonesolve Poland’s rule of law crisis. It is indeed no longer a crisis that Poland is facingbut a total breakdown in the rule of law which, in turn, represents a threat to theinterconnected legal order that underpins the European Union.Yours faithfully,Justice Defence Committee (KOS):Amnesty InternationalAssociation of Judges “THEMIS”Association pro memoriam prof. Zbigniew Ho#daCivil Development Forum (FOR Foundation)Free CourtsHelsinki Foundation for Human RightsInstitute of Law and Society INPRIS“Lex Super Omnia” Association of ProsecutorsPolish Judges’ Association “Iustitia”Polish Association of Judges of Administrative CourtsPresidium of the Judges Cooperation ForumWiktor Osiaty#ski ArchiveandCracow Institute of Criminal Law Foundation“Defensor Iuris” Association of Attorneys-at-LawDr Vigjilenca Abazi, Maastricht University- 6 -Professor Joana Covelo de Abreu, University of MinhoProfessor Alberto Alemanno, HEC ParisProfessor Matej Avbelj, New UniversityProfessor Asl# Ü. Bâli, UCLA School of LawProfessor Petra Bárd, Eötvös Lorand University, Central European UniversityProfessor Samo Bardutzky, University of LjubljanaProfessor Gavin Barrett, University College DublinDr Uladzislau Belavusau, T.M.C. Asser InstituteProfessor Paul Blokker, University of BolognaProfessor Bojan Bugaric, University of SheffieldProfessor Antoine Buyse, Utrecht UniversityDr Matthieu Burnay, Queen Mary University of LondonProfessor Ba#ak Çal#, Hertie School in BerlinProfessor Ramona Coman, Université Libre de BruxellesDr John Cotter, Keele UniversityDr Kati Cseres, University of AmsterdamDr Egl# Dagilyt#, Anglia Ruskin UniversityDr Tom Gerald Daly, Melbourne School of GovernmentProfessor Giacomo Di Federico, University of BolognaProfessor Peter Van Elsuwege, Ghent UniversityDr Cassandra Emmons, Harvard UniversityProfessor Iris Goldner Lang, University of ZagrebDr Barbara Grabowska-Moroz, University of GroningenDr Joelle Grogan, Middlesex University LondonProfessor Xavier Groussot, Lund UniversityProfessor Michaela Hailbronner, University of Gießen- 7 -Professor Gabor Halmai, European University InstituteDr Daniel Hegedüs, The German Marshall Fund of the United StatesProfessor Christophe Hillion, University of OsloProfessor Hristo Hristev, Sofia UniversityProfessor R Daniel Kelemen, Rutgers UniversityProfessor Jeff King, University College LondonProfessor Dimitry Kochenov, CEU Democracy InstituteDr Constantinos Kombos, University of CyprusProfessor Tomasz Tadeusz Koncewicz, University of Gda#skDr Kriszta Kovács, WZB Berlin Social Science CenterJaka Kukavica, European University InstituteDr Dilek Kurban, Hertie SchoolProfessor Rui Lanceiro, University of LisbonProfessor Rick Lawson, Leiden UniversityProfessor Ronan McCrea, University College LondonProfessor Christoph Möllers, Humboldt UniversityProfessor John Morijn, University of GroningenProfessor Jan-Werner Müller, Princeton UniversityProfessor Tommaso Pavone, University of OsloProfessor Laurent Pech, Middlesex University LondonProfessor Vlad Perju, Boston College Law SchoolProfessor Thomas Perroud, Panthéon-Assas University (Paris II)Professor Roman Petrov, National University Kyiv-Mohyla AcademyProfessor Sébastien Platon, University of BordeauxProfessor Ji#í P#ibá#, Cardiff UniversityProfessor Daniel Sarmiento, Complutense University of Madrid- 8 -Julian Scholtes, European University InstituteProfessor Wojciech Sadurski, University of Sydney, University of WarsawProfessor Kim Lane Scheppele, Princeton UniversityProfessor Alessandra Silveira, University of MinhoDr Rui Tavares, New York UniversityDr Radosveta Vassileva, University College LondonProfessor Marlene Wind, University of CopenhagenProfessor Jan Wouters, KU LeuvenProfessor Miros#aw Wyrzykowski, University of WarsawProfessor Lorenzo Zucca, King’s College London- 9 -

A Letter to the European Commission

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A Letter to the European Commission

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