Laurent Pech, Patryk Wachowiec: 1460 Days Later: Rule of Law in Poland R.I.P. (ang.)

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On 13 January 2016, exactly four years ago today, the Commission activated its rule of law framework for the very first time with respect to Poland (for our previous 2-part post 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 €100,000 per day should it continue to ignore an interim order adopted by the ECJ in July 2017;
  • to be subject to the exceptional procedure laid down in Article 7(1) TEU in December 2017;
  • to have seen its newly “redesigned” National Council of the Judiciary suspended from the European Networks of Councils for the Judiciary for its lack of independence in August 2018;
  • to have seen its self-described “judicial reforms” provisionally suspended by the Court 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 Treaty obligations under the second subparagraph of Article 19(1) TEU not once but twice in June and November 2019;
  • to have been referred to the Court of Justice by the Commission for making it 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 request preliminary rulings from the Court of Justice.

As if to outdo itself when it comes to annihilating judicial independence, Poland’s ruling party has rushed an unprecedented piece of legislation last month. This bill “raises the question of whether Poland wants to remain in the EU” by forcing non-compliance with EU rule of law requirements and strengthening an arbitrary disciplinary regime which has already enabled a multitude of kangaroo disciplinary proceedings against any judge at any point in time for as long as needed from the point of view of the ruling party.

As recently and accurately observed, “no member state in the history of the EU has ever gone as far in subjugating its courts to executive control as the current Polish government. The Polish case has become a test whether it is possible to create a Soviet-style justice system in an EU member state; a system where the control of courts, prosecutors and judges lies with the executive and a single party”.

This (two-part) post will highlight the main developments, primarily from the point of view of EU law, which took place in 2019. The most noteworthy one is the Court of Justice’s two infringements rulings which have found Poland to have violated the principles of the irremovability of judges and judicial independence and the Court of Justice’s first preliminary ruling regarding the so-called “Disciplinary Chamber” of Poland’s Supreme Court. The latter ruling has proved particularly impactful as it has directly led a not-yet-captured chamber of Poland’s Supreme Court to find the Disciplinary Chamber not to constitute a court within the meaning of EU and Polish Law. These two rulings have led in turn Polish authorities to put forward what may be described as a “de facto Polexit bill”.

This means that the warning addressed to the new President of the European Commission last month by multiple NGOs and scholars remains more valid than ever: “The attacks on judicial independence we are witnessing in Poland are unprecedented in the history of the EU and legal chaos is bound to ensue and spread because Polish authorities are openly and purposefully ignoring their duties and obligations as a matter of Polish as well as EU law. If not promptly addressed through interim measures, we have no doubt this will mark the beginning of the end of the EU’s common and interconnected legal order.”

It is time for European and national actors to WAKE UP and realise we may soon reach a tipping point, with the EU’s interconnected legal ecosystem facing a medium-term risk of collapse due to the premeditated and ongoing “destruction of the independence of the judiciary” we are witnessing in Poland, a process which seems to be inspiring an increasing number of national governments with exhibit A being Orbán’s Hungary.

1. Going M.I.A. in 2019: The Council

Before outlining the Court of Justice’s decisive contribution in 2019, one may note the Council’s failure to organise any Article 7(1) TEU hearing in respect of Poland since it held one in December 2018. One should not understand the lack of any Article 7(1) hearing as meaning that the Commission’s Article 7(1) recommendations have been met. Indeed, not a single one of them has been fully implemented by Polish authorities. In fact, the situation is worse than ever, which is why the Commission had no choice but to conclude in February 2019 that due to “the cumulative effect of the recent changes affecting the judiciary”, which “are limiting its independence” and “infringing upon the separation of powers”, the executive and legislative powers can now “interfere throughout the entire structure and output of the justice system”.

You have read this correctly: Poland’s executive and legislative powers, de facto controlled by Poland’s de facto Great Leader, can now interfere at will with the functioning and outputs of Polish courts (one may note in passing that the Commission’s diagnosis confirms the ill-advised nature of the so-called Celmer test devised by the ECJ as we noted last year). This interference is now happening openly, through disciplinary charges or administrative measures, such as early dismissals from secondment or temporary suspension by captured presidents of courts, but also more indirectly by putting pressure on judges not to adjudicate in a certain way whenever the interests of the ruling party demand it.

What has the Council done to address the situation? Not much or rather, as little as possible. Two explanations may be advanced: the Romanian government, in charge of the rotating presidency of the Council, was too busy undermining the rule of law in Romania to organise a hearing while the otherwise very active Finnish Presidency did not want to be seen as interfering with Poland’s parliamentary elections of October 2019, which is why it prioritised the organisation of the first Article 7(1) TEU hearing held in respect of Hungary in September 2019 followed by another one in December 2019.

In concrete terms, this means we only saw the Commission give a few updates on the rule of law situation in Poland during the past 12 months:

18 February 2019: The Commission provided the Council with an update on the latest developments regarding judicial reform in Poland. Member states considered that recent legislative changes concerning the Supreme Court law were a positive development and encouraged the Polish authorities to address the remaining issues raised by the Commission.

9 April 2019: The Commission provided an update on the state of play in relation to Poland.

18 July 2019: The Council took stock of the state of play as regards the rule of law in Poland in the light of recent developments, in particular the judgment of the European Court of Justice on Poland’s Supreme Court law.

16 September: The Commission updated ministers on the developments regarding the rule of law in Poland following the meeting of the General Affairs Council in July.

10 December 2019: The Commission updated ministers on the latest developments, including the recent judgments of the European Court of Justice concerning Polish rules on the retirement age of judges and public prosecutors and the new Disciplinary Chamber of the Polish Supreme Court.

Beyond the issue of the two rotating presidencies of the Council’s own priorities, it would appear that an additional pretext was used by some EU governments to justify their not untypical torpor: the alleged need to wait to see how Polish authorities would comply (or not) with the Court of Justice’s forthcoming infringement and preliminary rulings considering the increasing number of pending cases before the Court, and which directly or indirectly raise most of the issues highlighted in the Commission’s Article 7(1) reasoned proposal.

As we shall now see, Polish authorities have only publicly accepted to comply with the Court’s two infringement rulings to date primarily because these rulings did not prevent them from progressively capturing the Supreme Court from within. As soon 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 sham bodies established or captured by the ruling party (i.e. the “Disciplinary Chamber” 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 judicial independence requirements established in EU law, in obvious breach of both the Polish Constitution and the EU Treaties.

2. The Court of Justice’s entrée en piste

As of today, two infringement rulings – Case C-192/18 and Case C-619/18 – and one preliminary ruling – joined Cases C-585/18, C-624/18 and C-625/18 – have been issued by the Court of Justice. In addition, one infringement case regarding Poland’s new disciplinary regime for judges (C-791/19) and, to the best of our knowledge, eighteen requests for a preliminary ruling raising judicial independence issues, are now pending before the Court.

The two infringement rulings previously mentioned went against Poland, which was not in the slightest surprising considering the obvious arbitrary nature of the changes pushed by Polish authorities regarding the retirement regime of Polish Supreme Court judges, Polish ordinary court judges and public prosecutors. These infringement 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 authorities when it comes to the real reasons underlying their so-called “reforms”. Indeed, while members of Poland’s ruling party have been keen to constantly emphasise the need to “decommunise” the judiciary (even claiming that younger judges educated post 1989 would allegedly follow the behavioural patterns of their older, allegedly “communist”, colleagues), the justifications put forward before the Court to justify the retirement “reforms” were of a different nature. For instance, the lowering of the retirement age of Supreme Court judges to 65 was allegedly needed to standardise their regime “with the general retirement age applicable to all workers in Poland” while in the case of female ordinary court judges, Polish authorities explained the lowering of their retirement age to 60 (from 67) “on account of their particular social role connected with motherhood and child raising”.

With respect to the Supreme Court, the Court observed, in a highly unusual fashion but commensurate to the Polish government’s bad faith, that the “explanatory memorandum to the draft New Law on the Supreme Court contains information that is such as to raise serious doubts [our emphasis] as to whether the reform of the retirement age of serving judges of the Sąd Najwyższy (Supreme Court) was made in pursuance of such objectives, and not with the aim of side-lining a certain group of judges of that court [our emphasis]”. The Court therefore had no choice but to conclude that Polish authorities did not pursue a legitimate objective when they sought to lower the retirement age of the Supreme Court judges in post prior to the adoption of the law in dispute. Similarly, the Court of Justice found the new Polish rules relating to the retirement age of judges of ordinary courts and public prosecutors, adopted in July 2017, to be in violation inter alia of the principle of irremovability of judges, which is inherent in judicial independence.

In another seminal (preliminary) ruling (analysed e.g. here and here), the Court of Justice meticulously explained how the referring chamber of Poland’s Supreme Court can ascertain whether the so-called Disciplinary Chamber (hereinafter: DC) – which is also one of the problems highlighted by the Commission in its Article 7(1) reasoned proposal –  is sufficiently independent to constitute a court within the meaning of EU law. In the same preliminary ruling, the Court also explains how to ascertain the independence (or lack thereof) of the new National Council of the Judiciary (hereinafter: NCJ) – another body which has been highlighted as problematic by the Commission and many other organisations. Overall, the ECJ’s interpretation makes it implicitly obvious that neither the DC nor the NCJ satisfy the basic requirements of independence established by EU law, as previously made explicitly clear by Advocate General Tanchev.

Unsurprisingly, therefore, the referring court (the Labour and Social Security Chamber of the Supreme Court) subsequently found on 5 December 2019, on the basis of a meticulous and compellingly argued judgment, that the neo-NCJ does not offer a sufficient guarantee of independence from the legislative and executive authorities 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 Polish law as well.

With respect to the neo-NCJ, one may recall that it has been suspended from the ENCJ since August 2018 and that it was not merely established in breach of the Polish Constitution but also most likely unlawfully constituted on the basis of the 2017 (unconstitutional) law which changed the appointment procedure for the judicial members of the NCJ while also providing “for the early termination of the mandate of all judicial members on the Council”. To put it simply, it is likely that the judicial members of the NCJ were not supported by the required number of judges provided by the new (unconstitutional) law and/or only supported by each other or judges seconded to the Ministry of Justice. This is likely the reason why national authorities have openly ignored (you read that correctly) a final ruling from the Supreme Administrative Court ordering the Sejm to disclose the names of the judges supporting the NCJ candidates.

This blatant but far from unique violation of the most basic understanding of the rule of law by Polish authorities was rightly deplored by the Supreme Court in its judgment of 5 December 2019 which applied the ECJ preliminary ruling of 19 November 2019.

3. Problems left unaddressed by the Court of Justice’s rulings to date

Notwithstanding the seminal and welcome rulings issued this year by the Court of Justice, a number of important and urgent issues have been left unaddressed. This is not to say, however, that the Court of Justice is necessarily at fault as e.g. the Court cannot approve interim measures if it does not receive an application from the Commission as it did in the case relating to the independence of Poland’s Supreme Court and most recently in the case relating to the Disciplinary Chamber.

To begin with, the situation has not improved one iota as far as the (captured) Constitutional Tribunal (hereinafter: CT) is concerned. Despite a sharp decline in the number of cases submitted to it due to the widespread concerns about its lack of independence, the CT is fully operating and continuing to pretend to be a court. Last October, it even acted like a truly “European” court by declaring, for the first time, that a statute is not consistent with the TFEU (case P 1/18). This may be viewed positively at first sight but it should not be. Indeed, what we have here is a body masquerading as a court enforcing EU law (but only when it suits the ruling party) whereas according to the Commission itself, there is no longer any effective constitutional review in Poland following the failure of Polish authorities to take any steps with the view of restoring the independence of the CT. In addition to this damning diagnosis, one may refer to a series of letters to the (unlawfully appointed) “President” of the CT by a fellow judge. These letters offer multiple examples of obvious abuse of power such as an arbitrary allocation of cases to please the ruling party, an arbitrary make-up of judicial panels as well as an arbitrary (and unconstitutional) prohibition of dissenting opinions. To put it concisely, the time for an infringement action directly targeting the captured CT has come considering the damage it has done and its role when it comes to giving a veneer of legality to fellow sham bodies such as the Disciplinary Chamber (DC) and the National Council of the Judiciary (NCJ).

Speaking of the NCJ, people may be surprised (or not) to learn that it is continuing to function in a “business as usual” fashion notwithstanding the ruling of the Supreme Court of 5 December 2019 finding it to lack sufficient independence from legislative and executive authorities. In addition, some of its members have been busy spreading falsehoods about the content and binding nature of the ECJ preliminary ruling of 19 November 2019. Since its (unconstitutional) establishment on the back of the premature termination of the four-year term of office of its previous members, the neo-NCJ has recommended more than 650 individuals to be appointed as judges or for promotion. Its enthusiastic participation in the (unconstitutional) attempted purge and simultaneous court-packing of the Supreme Court has been well documented, not least by the European Commission. Furthermore, it was revealed last August that some NCJ members secretly took part in a smear campaign targeting judges, including the First President of the Supreme Court (alleged members of what has been described as a “troll form” have of course denied the allegations). As of today, we are still waiting for meaningful investigations and sanctions but how can one hope for any given that “it is clear that the alleged smear campaign was organised from within the Ministry, with the involvement of high ranking officials in the Ministry and National Council of Justice”, with the investigations undertaken by the NCJ and the prosecution service which is controlled by the Minister of Justice, the alleged main guilty party.

Similarly, the two captured chambers of Poland’s Supreme Court – the DC and the Extraordinary Control and Public Affairs Chamber – continue to function and continue to pretend to be independent judicial bodies. To give a veneer of legality to their existence, they have involved the captured CT by requesting it confirm the constitutionality of their status and deliberately referring cases to extended panels within them (7 “judges” or the whole chamber) in order to make their “judgments” more difficult to overrule as other benches, composed of 3 judges, normally need to refer cases to even bigger formation should they wish to override it. The “judges” belonging to the Disciplinary Chamber also did not shy away from self-certifying themselves. In April 2019, they adopted a resolution proclaiming that their appointment is lawful and that the ENCJ-suspended NCJ was similarly established in a lawful manner as confirmed by the ruling of the (unlawfully composed) panel of the CT. They must not be aware of the nemo judex in causa sua principle among other basic legal principles.

To complete our brief outline of the yet to be addressed issues by the ECJ (but a third infringement action is now pending before it), the overall operation of the new disciplinary system needs to be mentioned. While an alleged involvement in a smear campaign organised by the Ministry of Justice will not cause you any major inconvenience (disciplinary or otherwise), multiple judges have faced disciplinary charges for such “major crimes” as seeking to implement the Court of Justice ruling of 19 November 2019, being publicly critical about the so-called “judicial reforms” and “their effect on judicial independence”, or, even more alarmingly, for the content of the “decisions they have taken when adjudicating cases”. Yes, we are talking about a Member State of the EU in 2019 and not the Soviet Union. This is why, one may note in passing, that the analysis of Advocate General Tanchev in Miasto Łowicz and Others (C-558/18 and C-563/18) may appear excessively formalistic and disconnected from the reality on the ground. As noted in a recent and worth reading report by two members of the Council of Europe’s Parliamentary Assembly:

A key issue of concern is the fact that after prosecutors and judges have been informed by the Disciplinary Inspectors that a disciplinary investigation has been started against them, these investigations often continue indefinitely without formal disciplinary charges being brought [our emphasis] before the relevant disciplinary chambers … The Chairperson of the National Council of the Judiciary informed us that, in the last year and a half, 1174 disciplinary investigations were started. Only in 71 instances had disciplinary cases been opened … Irrespective of the small number of actual disciplinary cases opened, the large number of investigations started by disciplinary officers directly accountable to the Minster of Justice, and the time it takes to close these investigations, if at all, clearly has a chilling effect on the judiciary and affects their independence.

This is now the reality of the state of the rule of law in Poland. It is to be hoped that the ECJ will not exclusively focus on whether formal disciplinary charges have been brought but instead take full account of the overall context and the impact of the multiple (kangaroo) disciplinary investigations leaving judges and prosecutors the ruling party has targeted in a “precarious limbo” as they are being investigated without “being able to defend themselves”.

4. Going for broke: The “de facto Polexit” bill

Having initially reacted positively to the Court of Justice’s ruling of 19 November 2019 – according to the Minister of Justice/Prosecutor General, the Court’s ruling was a “great defeat for the extraordinary caste” – representatives of the ruling party and members of the bodies concerned by the Court’s judgment (the DC and NCJ) quickly changed tack when they finally understood that the Court’s reasoning had to lead the referring court to find both the DC and NCJ as lacking basic guarantees of independence.

Another important aspect of the Court of Justice’s ruling, not widely noted, is that “the EU test for the ‘appearances’ of independence can now be applied by ‘old’ Supreme Court judges also to assess the independence of the Chamber for Extraordinary Control and Public Affairs, the second chamber set up in the same way, from scratch, by the ruling parliamentary majority”.

This led the ruling party, following their usual modus operandi, to rush a new piece of legislation via some acquiescent MPs although the wording of the bill and the explanatory memorandum attached to it make it obvious that the bill was drafted in the Ministry of Justice. The purpose of this modus operandi is evident: to circumvent public consultation and prevent a meaningful parliamentary and public debate.

According to the initial version of the bill, it would be a disciplinary offence inter alia to disregard a provision of Polish law in a situation where its non-compliance with the Constitution (which has been violated on multiple occasions by members of the ruling party, not least the Polish President) has not been not confirmed by the (captured) CT. To put it bluntly, the ruling party “wants to force judges not to assess the conformity of the laws passed by the current authority on their own or through legal questions to the Supreme Court or the CJEU, with the Constitution or European law, under the threat of a penalty”.

Other provisions of the bill are similarly alarming. For instance, the proposal aims to prohibit judges from discussing “political matters” or engaging in activities or omissions which would allegedly undermine the functioning of the judiciary or more generally the functioning of Polish authorities and Poland’s constitutional bodies. This was defended inter alia on the ground that French law would similarly restrict the freedoms of expression and of association of French judges. As demonstrated here, this is pure, and deliberately misleading nonsense.

Another worth noting provision, which is so typical of the institutional capture strategy pursued by Poland’s ruling party, aims to secure the speedy replacement of the current First President of Poland’s Supreme Court when her term of office expires next April. According to the contemplated new three-step procedure, the General Assembly of Supreme Court judges, whose task is to present candidates for this post to the President of the Republic, must consist of at least 84 out of 110 judges. If this quorum is not met, the second meeting must be held with a presence of 75 judges while the third must include not less than 32 of them. The bill also gives each judge of the Supreme Court a right to propose one candidate for the said position.

Bearing in mind that at least 43 nominees of the (unlawfully operating) neo-NCJ are members of the Supreme Court, the new procedure virtually guarantees that the post will fall to one of (the ruling party’s) chosen ones. And should the said procedure fail, which is unlikely but better safe than sorry as the saying goes, the President of the Republic will be given an exclusive right to appoint an interim First President. In other words, it is only a matter of time before the ruling party captures the Supreme Court as a whole as it has already captured the CT and the NCJ, but also the Supreme Administrative Court. Indeed, and for the first time since the beginning of the rule of law crisis, the bill also targets the Supreme Administrative Court with the Polish President being given once again the exorbitant power to decide the new rules of procedure of that court.

The bill contains so many outrageous provisions and laughable claims – for instance the bill claims to be mindful of the need to protect the principle of irremovability of judges by which one should of course understand the irremovability of individuals whose appointments are legally tainted due to the unlawful character of the NCJ – it is difficult to be concise. Space constraints precluding further details here, we will refer readers to Professor Marcisz’s analysis:

The provisions in the bill are all designed as an assault on judicial independence. They aim at crushing the opposition against previous illegal reforms among the judiciary. No need to discuss their details: res ipsa loquitur. The bill is blatantly unconstitutional but without a functioning Constitutional Court it does not matter much. It is also contrary to EU law. Not only does it infringe the judicial independence … but also the principle of primacy of EU law.

It was good therefore to see Vice-President Jourová making clear her multiple concerns in a letter to the Polish authorities on 19 December 2019. However, if there is anything the last four years should have taught the Commission is that Polish authorities are never acting in good faith and will not shy away from deliberately and repeatedly violating the principle of loyal cooperation in order to create faits accomplis. The Commission should face up to this unfortunate reality and stop wasting time by repeatedly trying to “engage in a constructive dialogue” with a repeated offender.

What is needed from the Commission is strong leadership via concrete deeds. In this respect, European Commission Vice President Věra Jourová and the European Commissioner for Justice Didier Reynders must be commended for their leadership. The Commission’s decision “to ask the Court of Justice to impose interim measures on Poland, ordering it to suspend the functioning of the Disciplinary Chamber of the Supreme Court” on the back of the pending infringement case 791/19 was an absolutely essential step to take at this point in time. As accurately noted by the Commission, Polish authorities’ refusal to comply with the ECJ ruling of 19 November 2019 and the subsequent ruling of the Supreme Court of 5 December 2019 has created “a risk of irreparable damage for Polish judges and increasing the chilling effect on the Polish judiciary”.

In addition, the Commission should stand ready to launch a fourth infringement action modelled on the infringement action initiated against the attempted purge of the Supreme Court as soon as the pending bill is adopted (and to shorten pre-litigation stage as much as possible so as not to let Polish authorities capture the Supreme Court in the meantime). As for national governments who care about the rule of law, they should systematically join pending proceedings and should the Commission fail to act promptly, they should stand ready to put their money where their mouth is and initiate rule of law infringement actions on the basis of Article 259 TFEU.

5. A fictional country or an EU Member State in 2020?

Imagine a country where national authorities (non-exhaustive list below):

This country is not a fictional one. This country is now Poland under the Soviet-style moniker of the mislabelled “Law and Justice” party.

As accurately observed on 16 October 2019 by the First President of Poland’s Supreme Court: “The end result is that the rule of law in Poland is not simply at risk: it is being erased.”

Writing a year ago, we warned that the situation in Poland “has deteriorated further to the point of threatening the functioning of the whole EU legal order and therefore, the future of the EU’s internal market itself.” This is no longer a mere threat but a clear and present danger. Poland should now be considered, to borrow an expression from the financial world, as a country in default from a rule of law point of view. EU institutions and EU Member States will soon have to decide on the nature of their losses: Sacrifice their good relations with Polish national authorities or sacrifice the EU legal order.

Stalling for time would be irresponsible. On current trajectory, it is only a matter of time before Poland’s rule of law default eventually triggers a knock-on process of legal disintegration.

Laurent Pech, Patryk Wachowiec

Verfassungsblog.de (part I)

Verfassungsblog.de (part II)

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