Commission Recommendation (EU) 2017/1520 of 26 July 2017 regarding the rule of law in Poland complementary to Recommendations (EU) 2016/1374 and (EU) 2017/146

• Published date: 02 September 2017
• Subject Matter: area of freedom, security and justice,General principles of Community law
• Official Gazette Publication: Official Journal of the European Union, L 228, 2 September 2017

2.9.2017 EN Official Journal of the European Union L 228/19

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COMMISSION RECOMMENDATION (EU) 2017/1520

of 26 July 2017

regarding the rule of law in Poland complementary to Recommendations (EU) 2016/1374 and (EU) 2017/146

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 292 thereof,

Whereas:

(1) On 27 July 2016, the Commission adopted a Recommendation regarding the rule of law in Poland (1), setting out its concerns on the situation of the Constitutional Tribunal and recommending how these should be addressed. On 21 December 2016, the Commission adopted a complementary Recommendation regarding the rule of law in Poland (2).

(2) The Recommendations of the Commission were adopted under the Rule of Law Framework (3). The Rule of Law Framework sets out how the Commission will react should clear indications of a threat to the rule of law emerge in a Member State of the Union and explains the principles which the rule of law entails. The Rule of Law Framework provides guidance for a dialogue between the Commission and the Member State in order to prevent the emergence of a systemic threat to the rule of law that could develop into a ‘clear risk of a serious breach’ which would potentially trigger the use of the ‘Article 7 TEU Procedure’. Where there are clear indications of a systemic threat to the rule of law in a Member State, the Commission can initiate a dialogue with that Member State under the Rule of Law Framework.

(3) The European Union is founded on a common set of values enshrined in Article 2 of the Treaty on European Union (‘TEU’), which include the respect for the rule of law. The Commission, beyond its task to ensure the respect of EU law, is also responsible, together with the European Parliament, the Member States and the Council, for guaranteeing the common values of the Union.

(4) Case law of the Court of Justice of the European Union and of the European Court of Human Rights, as well as documents drawn up by the Council of Europe, building notably on the expertise of the European Commission for Democracy through Law (‘Venice Commission’), provides a non-exhaustive list of these principles and hence defines the core meaning of the rule of law as a common value of the Union in accordance with Article 2 TEU. Those principles include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law (4). In addition to upholding those principles and values, State institutions also have the duty of loyal cooperation.

(5) In its Recommendation of 27 July 2016, the Commission explained the circumstances in which it decided, on 13 January 2016, to examine the situation under the Rule of Law Framework and in which it adopted, on 1 June 2016, an Opinion concerning the rule of law in Poland. The Recommendation also explained that the exchanges between the Commission and the Polish Government were not able to resolve the concerns of the Commission.

(6) In its Recommendation, the Commission found that there was a systemic threat to the rule of law in Poland and recommended that the Polish authorities take appropriate action to address this threat as a matter of urgency.

(7) In its Recommendation of 21 December 2016, the Commission took into account the latest developments in Poland that had occurred since the Commission's Recommendation of 27 July 2016. The Commission found that whereas some of the issues raised in its last Recommendation had been addressed, important issues remained unresolved, and new concerns had arisen in the meantime. The Commission also found that the procedure which had led to the appointment of a new President of the Tribunal raised serious concerns as regards the rule of law. The Commission concluded that there continued to be a systemic threat to the rule of law in Poland. The Commission invited the Polish Government to solve the problems identified as a matter of urgency, within 2 months, and to inform the Commission of the steps taken to that effect. The Commission noted that it remained ready to pursue a constructive dialogue with the Polish Government on the basis of the Recommendation.

(8) On 20 February 2017, within the time limit of 2 months, the Polish Government replied to the Commission's complementary Recommendation. The reply disagrees with all the issues raised in the Recommendation and does not announce any new action to address the concerns identified by the Commission. The reply emphasises that the appointment of the new President of the Tribunal on 21 December 2016 as well as the entry into force of provisions of the law on Organisation and Proceedings before the Constitutional Tribunal, the law on the Status of Judges of the Constitutional Tribunal and the law Implementing the law on Organisation and Proceedings and the law on the Status of Judges have created the proper conditions for the functioning of the Tribunal after a period of paralysis caused by political quarrels of politicians of the opposition in which the former President of the Tribunal was also engaged.

(9) On 21 December 2016, Mr Mariusz Muszyński, who was nominated by the 8th term of the Sejm without a valid legal basis and was admitted to take up the function of judge in the Constitutional Tribunal on 20 December 2016 by the then acting President of the Tribunal, was appointed to substitute the new President of the Tribunal in case of her absence.

(10) On 10 January 2017, the Vice-President of the Constitutional Tribunal was obliged by the newly appointed President of the Tribunal to use his remaining leave. On 24 March 2017, the President of the Tribunal prolonged the leave of absence of the Vice-President of the Tribunal until the end of June, despite the request of the Vice-President to resume his work as judge in the Tribunal as of 1 April 2017.

(11) On 12 January 2017, the Minister of Justice launched a procedure before the Constitutional Tribunal to review the constitutionality of the election, in 2010, of three judges of the Tribunal. Following this procedure, cases have no longer been assigned to these three judges.

(12) On 16 January 2017, the President of the Venice Commission issued a statement expressing his concerns about the worsening situation within the Tribunal.

(13) On 20 January 2017, the Government announced a comprehensive reform of the judiciary. The Minister of Justice presented a draft law on the National Council for the Judiciary.

(14) On 25 January 2017, the Minister of Justice presented a draft law on the National School of Judiciary and Public Prosecution.

(15) On 10 February 2017, the Court of Appeals in Warsaw referred a question of law to the Supreme Court which relates to the assessment of the legality of the appointment of judge Julia Przyłębska to the office of President of the Constitutional Tribunal. The Supreme Court has not yet rendered a judgement.

(16) On 24 February 2017, the Sejm appointed a new judge in replacement to a judge who resigned from his position in the Constitutional Tribunal to become a judge in the Polish Supreme Court.

(17) On 1 March 2017, a group of 50 members of the Sejm asked the Constitutional Tribunal to establish the unconstitutionality of the provisions of the law on the Supreme Court on the basis of which the First President of the Supreme Court had been elected.

(18) On 13 March 2017, the National Council for the Judiciary withdrew four motions lodged with the Constitutional Tribunal due to the changes introduced to the composition of the relevant hearing panels following a decision by the President of the Tribunal.

(19) On 12 April 2017, a group of 50 members of the Sejm presented a draft law amending the law on Common Courts Organisation.

(20) On 11 May 2017, the Sejm adopted the law amending the law on the National School of Judiciary and Public Prosecution, the law on Ordinary Courts Organisation and certain other laws (‘law on the National School of Judiciary’). The law was published on 13 June 2017.

(21) On 16 May 2017, the Commission informed the General Affairs Council on the situation of the rule of law in Poland. There was broad agreement around the table that the rule of law is a common interest and a common responsibility of EU institutions and Member States. A very broad majority of Member States supported the Commission's role and efforts to address this issue. Member States called upon the Polish government to resume the dialogue with the Commission with a view to resolving the pending issues and looked forward to being updated as appropriate in the General Affairs Council.

(22) On 23 June 2017, the European Council generally endorsed the country-specific recommendations addressed to the Member States in the context of the 2017 European Semester. The recommendation addressed to Poland contains a recital underlining that ‘Legal certainty and trust in the quality and predictability of regulatory, tax and other policies and institutions are important factors that could allow an increase in the investment rate. The rule of law and an independent judiciary are also essential in this context. Addressing serious concerns related to the rule of law will help improve legal certainty’. On 11 July 2017, the country-specific recommendations were adopted by the Economic and Financial Affairs Council (5).

(23) On 5 July 2017,

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