Full text of EU Rule of Law Opinion against Poland

On Friday August 19 Professor Laurent Pech published the full text of the Commission Opinion regarding the Rule of Law in Poland adopted on 1 June 2016 (via EUobserver):

EU Law Analysis -- Commission Opinion of 1 June 2016 regarding the Rule of Law in Poland: Full text now available (Aug 19, 2016)

To deal with what a number of EU officials have described as an increasing number of rule of law crises, the European Commission adopted a new framework to strengthen the rule of law in March 2014. The Commission explicitly designed this new instrument to deal with situations where ‘a systemic threat to the rule of law’ may be detected in a Member State. Soon afterwards, Frans Timmermans was appointed First Vice-President of the European Commission in charge of, inter alia, the Rule of Law.

The Commission’s rule of law framework takes the form of an early warning tool whose primary purpose is to enable the Commission to enter into a structured dialogue with the relevant Member State. The overall aim is to prevent any emergent systemic threat to the rule of law from developing into a situation where there is a clear risk of a serious breach of EU values laid down in Article 2 TEU¹. This procedure is supposed to precede the eventual triggering of what is often (albeit misleadingly) labelled as the ‘nuclear option’ laid down in Article 7 TEU² (namely the suspension of a Member State’s rights for violating EU values), hence the informal label of ‘pre-Article 7 procedure’ given to the 2014 Framework.

The Opinion sets out the concerns of the Commission in three bullet points:

1. Scope of the opinion

39 - The present opinion sets out the current concerns of the Commission in regard of the rule of law in Poland concerning the following issues:

· the appointment of judges of the Constitutional Tribunal and the implementation of the judgments of the Constitutional Tribunal of 3 and 9 December 2015 relating to these matters 21; [21 The Commission considers the issue of the shortening of the mandate of the President and the Vice-President of the Constitutional Tribunal as resolved in view of the judgment of the Tribunal of 9 December 2015 and the clarifications received from the Polish Government.]

· the Law of 22 December 2015 amending the Law on the Constitutional Tribunal, the judgment of the Constitutional Tribunal of 9 March 2016 relating to this law, as well as the respect of the judgments rendered by the Constitutional Tribunal since 9 March 2016;

· the effectiveness of Constitutional review of new legislation, in particular the new media law, and certain other laws which have been adopted and enacted in 2016.

With regards to the appointment of judges the Commission concludes:

52 - In view of the above the Commission considers that the Polish authorities should respect and fully implement the judgments of the Constitutional Tribunal of 3 and 9 December 2015. These judgments require that the State institutions cooperate loyally in order to ensure, in accordance with the rule of law, that the three judges that have been nominated by the previous legislature can take up their function of judge in the Constitutional Tribunal, and that the three judges nominated by the new legislature without a valid legal basis do not take up the post of judge without being validly elected.

With regards to the amendments of 22 December 2015 on the Law on the Constitutional Tribunal:

74 - In view of the above, the Commission takes the view that the effect of the amendments, in particular their combined effect, undermines the effectiveness of the Constitutional Tribunal as a guarantor of the Constitution. The Commission also notes with concern the fact that certain amendments increase the involvement of other institutions of the State in disciplinary proceedings concerning judges of the Tribunal, raising concerns as regards the separation of powers and the independence and integrity of the Constitutional Tribunal.

75 - The Commission notes that the amendments have been declared unconstitutional by the Constitutional Tribunal in its judgment of 9 March 2016. However, the fact that the Polish Government has so far refused to publish the judgment of the Constitutional Tribunal in the Official Journal, creates uncertainty about the legal effect of the judgment and hence on the legal basis on which the Tribunal must act. This uncertainty undermines the effectiveness of constitutional review and raises serious concerns in regard of the rule of law.

76 - This legal uncertainty has already manifested itself in the fact that the further judgments rendered by the Constitutional Tribunal have not been published, and are not recognised by the Government. This situation of non-recognition of judgments of the Constitutional Tribunal is liable to create profound legal uncertainty in the Polish legal system across a wide range of areas.

77 - Refusing to publish and to act upon the judgment of the Constitutional Tribunal of 9 March 2016, as well as all the judgments of the Tribunal rendered subsequently, falls short of the required respect for the Tribunal as the guarantor of the Constitution, and is not compatible with the rule of law.

With regard to the effectiveness of Constitutional review, in particular of the new media law:

79 - The Commission considers that as long as the Constitutional Tribunal is prevented from fully ensuring an effective constitutional review, there will be no effective scrutiny of compliance with the Constitution, including fundamental rights, of legislative acts such as those referred to above. The Commission notes for example that new legislation (such as the media law) [Law of 30 December 2015 amending the Broadcasting Law, published in Official Journal on 7 January 2016, item 25.] raises concerns relating to freedom and pluralism of the media. More specifically, the new media law modifies the rules for the appointment of the Management and Supervisory Boards of the public service broadcasters, putting them under the control of the Treasury Minister, rather than an independent body. The new law also provides for the immediate dismissal of the existing Supervisory and Management Boards. In that respect the Commission questions in particular the possibilities of judicial redress for the persons affected by the law.

[...]

84 - The Commission considers that as long as the Constitutional Tribunal is prevented from fully ensuring an effective constitutional review, there will be no effective scrutiny of compliance with fundamental rights of legislative acts. This raises serious concerns in regard of the rule of law, notably as a number of particularly sensitive new legislative acts have been adopted recently by the Sejm for which constitutional review should be available.