Rule of law procedure for Poland – European Commission takes another step

On December 21, the European Commission adopted a second, complementary recommendation regarding the rule of law in Poland. According to the European Commission, there is still a systemic threat to the rule of law in Poland, which should be addressed as a matter of urgency.

Constructive dialogue

The European Commission commenced the procedure concerning the rule of law in January after the Polish Sejm had adopted the second amendment to the Act of the Constitutional Tribunal. A constructive dialogue between the Polish government and the European Commission pursued by nearly six months did not bring about the desired results. As a result, in July 2016 the European Commission presented a recommendation regarding the protection of the rule of law in Poland, and thereby proceeded to the second stage of the procedure.

In July 2016, the European Commission requested, among other things, that the Polish Government publish all the judgments of the Constitutional Tribunal and ensure that the CT can review the constitutionality of subsequent laws on the functioning of the CT and that the oath be taken from three judges lawfully nominated in October 2015.

Despite appeals issued by, among others, non-governmental organisations from across the world (more information is available here) the Polish Government has failed to implement the recommendation.

Balancing on the edge

In the new recommendation, the European Commission recommended that the Polish Government:

• ensure that the Constitutional Tribunal can as a matter of urgency effectively review the constitutionality of the new Law on the functioning of the CT,
• ensure that no appointment of the new President of the Constitutional Tribunal take place as long as the constitutionality of the new laws has not been reviewed and as long as the three judges that were lawfully nominated in October 2015 have not taken up their judicial functions in the Tribunal;
• ensure that as long as a new President of the Constitutional Tribunal has not been lawfully appointed, he is replaced by the Vice-President of the Tribunal and not by an acting President, or by the person appointed as President of the Tribunal on 21 December 2016.

Around the time when the European Commission discussed the wording of the additional recommendation, President Andrzej Duda appointed judge Julia Przyłębska as the President of the Constitutional Tribunal. The appointment of the new President of the CT took place on the basis of the three new laws on the Constitutional Tribunal. Thus, at least one of the Commission’s requests has already been rejected.

Under the rule of law framework, a failure to implement recommendations gives the European Commission the discretion to file an application to the Council for the activation of the procedure laid down in Article 7 TEU. At its most severe, the Article allows for the imposition of sanctions on a Member State, including the suspension of its voting rights.

The adherence to the second recommendation of the framework may be treated as stalling for time. The events of the last year show that the Polish Government is not interested in solving the crisis over the Constitutional Tribunal in any other manner than by taking over control of the latter. On the other hand, the European Commission is reticent to set in motion the sanctioning procedure. In this situation, a crucial role may be played by the European Parliament, which as well as the European Commission, has the discretion to appeal to the Council for the commencement of the Article 7 TEU procedure.

Constitutional crisis continues

The adoption of the new package of laws on the Constitutional Tribunal and the appointment of the new President of the CT do not solve the one-year long crisis concerning the functioning of this institution. Two 2016 judgements of the Constitutional Tribunal still remain unpublished. One of the first decisions of the new President of the Constitutional Tribunal was to assign cases to the judges that were elected in December 2015 without a legal basis.

The Constitutional Tribunal plays an important role in the entire system of human rights protection in Poland and its effectiveness and independence translated into effectiveness and independence of the whole system. No wonder, then, that the international community is watching closely the situation around the CT.