The IBA’s response to the war in Ukraine
Court of Justice of the European Union protects rule of law in Poland
In early November, the Court of Justice of the European Union (CJEU) ruled that new laws lowering the retirement age of judges in Polish courts are unlawful. This is the latest in a series of cases addressing rule of law concerns in Poland and follow the landmark ruling in June in which the CJEU found that the lowering of the retirement age of Supreme Court justices was unlawful - understood to be the first ruling ever of a violation of judicial independence in the EU’s history.
The two decisions result from a series of judicial reforms put forward by Poland’s governing Law and Justice Party over the past few years. The Polish government argues these reforms are needed because the judiciary is still steeped in its Communist past. It says that judges ‘who once sentenced people to years in prison for distributing anti-communist leaflets, organising strikes… are sitting there even today’. The Polish government says that, as a result, the Polish public has no trust in the judiciary and the court system is mired in inefficiencies.
The reforms include changes to the body that appoints judges and to the way judges are disciplined. The changes have, however, led to intense criticism. Observers have argued they are a ‘step-by-step capture’ of Poland’s institutions, designed to exert political control over the judiciary and amount to violations of the rule of law.
This is no less than a purge of the judiciary. They are able to remove existing judges and appoint new ones in an obvious breach of basic rule of law requirements
Professor of European Law, Middlesex University
Some of Poland’s new laws have already been revoked, meaning that justices in the Supreme Court who were forced to retire have returned to work. In other instances, there has been a greater impact. For example, judges in the ordinary courts have been removed and new ones appointed. ‘To use the language of the Communist past, this is no less than a purge of the judiciary,’ says Laurent Pech, Professor of European Law at Middlesex University. ‘They are able to remove existing judges and appoint new ones in an obvious breach of basic rule of law requirements.’
The European Commission has referred to the CJEU another significant rule of law case, this time concerning changes to the disciplinary procedures for the judiciary. The Commission argues that the reforms would mean that ‘judges are not insulated from political control and thus judicial independence is violated’. The case has been expedited under a special procedure and the CJEU is due to publish its decision in spring 2020.
Meanwhile, the Polish courts themselves have also referred over ten separate matters to the CJEU.
The infringement actions brought by the European Commission and the Polish courts are not the only process at play. In July 2019, the Commission launched the Rule of Law Review Cycle in response to what it calls systemic threats to the rule of law. All EU Member States will now be subject to scrutiny on the standards of the rule of law in that state and an annual report will be published.
Critics say the new monitoring procedure falls short of including any substantive punitive action where there has been a rule of law failing, however. As part of the consultation on the procedure, the IBA Legal Policy and Research Unit (LPRU) published a paper in conjunction with Federica D’Alessandra, Executive Director (assisted by Hannes Jobstl, a researcher) at the Oxford Programme on International Peace and Security. The paper concluded that ‘there is currently little practical disincentive for a member state government to refrain from violating the rule of law it if meets their political ends. Unless or until the stakes are raised and meaningful sanctions are in place… infracting member states will continue to operate with perceived impunity.’
Pech agrees that the new procedure is unlikely to add much. ‘Whenever the European Commission doesn’t know what to do, it sets up a new mechanism,’ he says.
What the EU needs, says Sara Carnegie, Director, Legal Projects at the IBA, are ‘financial sanctions within clearly defined timeframes’. In 2018, the European Parliament did put this forward as a proposal, with the aim to give the EU the power to suspend EU funding where there have been proven rule of law violations. The current Presidency of the Council of the EU is with Finland and the country’s premier, Antti Rinne, has made the rule of law one of his key themes. As yet, the proposal has not however been realised.
Poland is already subject to the ‘Article 7 procedure’, which is derived from Article 7 of the Treaty on European Union and which covers rule of law violations. This procedure has two pathways: a preventative one and the sanctions process. The latter is known as the ‘nuclear option’ because, if followed through to its conclusion, it could result in the suspension of a Member State’s treaty rights.
The first pathway was triggered in December 2017 against Poland but shows little sign of progressing. Carnegie refers to the Article 7 procedure as a ‘never-ending process’ and explains that ultimately, the more powerful pathway built into Article 7 ‘requires unanimity [to agree to suspend a Member State], which can be hard to obtain if sympathetic Member States defend each other or have similar political priorities’.
D’Alessandra, who is also Co-Chair of the IBA Human Rights Committee, believes it is good news that ‘many Member States have started to acknowledge the need for effective (financial) sanctions in cases of rule of law violations.’
‘The current suspects – Poland and Hungary – are among the biggest net recipients of EU funds,’ she adds. ‘This does not only make them particularly vulnerable to financial sanctions, but also helps catalyse public opinion in the remaining Member States, as citizens do not understand why their taxes should be used to fund rule of law violations.’
Poland’s governing Law and Justice Party won the Polish general election held on 12 October 2019. This suggests a change of policy from Warsaw is unlikely. The victory appears to demonstrate that the European Commission’s concerns about rule of law backsliding have insufficient sway among the Polish electorate and may even feed anti-EU rhetoric that the Commission is meddling in domestic issues it does not understand.