CJEU: Polish courts are independent

The Court of Justice of the European Union, in its judgment delivered on 17 December 2020, stated that there are no grounds for making an assumption that there are systemic or general irregularities regarding the independence of Polish courts. Pursuant to the CJEU judgment, the reforms of the judiciary carried out in Poland cannot be a reason for refusing to execute European Arrest Warrants.

The Republic of Poland, since the Dutch court initiated proceedings in this case, has consistently emphasized that there are no grounds for stating that Polish courts did not meet the requirement of independence. However, the court in Amsterdam, basing on a false thesis, questioned the execution of two EAWs issued against persons suspected of crimes and hiding from the Polish justice system.

The representative of the Government of the Republic of Poland – Deputy Minister of Justice, Dr. Anna Dalkowska – during the hearing on October 12, 2020, already indicated that there can be no automatism in the cases of European Arrest Warrants. If we accept the arguments of the Dutch court that referred the question to the CJEU for a preliminary ruling, it would be possible to exclude the judiciary from one Member State by another.

The same opinion was presented by the European Commission, as well as Ireland and Belgium. The Advocate General of the CJEU clearly stated that the Dutch court did not find any real, based on the applicable provisions, grounds for refusing to surrender persons covered by the EAW to Poland.

Due to the incorrect reasoning of the Dutch court and the artificial legal problem created this way, the CJEU judgment had to be consistent with the position of Poland.

Report on the rule of law 2020

In June 2020, the so-called review mechanism on the rule of law, run by the European Commission, began. The Rule of Law Review Cycle report, which covers all EU Member States, aims to enhance the Union’s capacity to promote and support the rule of law. According to the methodological assumptions presented by the EC:

✔    monitoring of the rule of law will be carried out in all Member States and the evaluation will be based on uniform, objective criteria;

✔    four pillars to be reviewed: 1st pillar – the judiciary system (independence of the judiciary in all instances and the quality of operation of institutions, including the prosecutor’s office), 2nd pillar – corruption, 3rd pillar – media, 4th pillar – constitutional issues;

✔    the review will be based on the following sources: 1) the case law of the ECtHR and the CJEU and reports of international organisations. 2) Article 2 TEU, Article 19.1 TEU establishing an obligation of judicial protection, 3) Article 47 of the CFR – effective remedy and fair trial 4) Article 325 TFEU – combating fraud 5) European criminal law – PiF Directive. 6) Council of Europe standards in the field of media protection, prosecutor’s office standards, 7) Council of Europe Convention on the Prevention of Corruption, 8) Venice Commission documents;

✔    the evaluation of the Member State concerned will be a synthesis of each of the 4 pillars in both negative and positive terms, and it will also be a review of quality and good practice.

The final version of the EC report was adopted on 30 September 2020 (the General Report and the Reports on the Rule of Law in individual Member States are available on the following website

https://ec.europa.eu/info/publications/2020-rule-law-report-communication-and-country-chapters_.pl )

The Poland’s position on the Report on the rule of law in Poland:

• Poland supports initiatives in the field of the rule of law taken within the EU, which are in line with the provisions and the spirit of the Treaties and take into account that “the Union shall act only within the limits of the powers conferred on it by the Member States in the Treaties to attain the objectives set out therein. Any competence not conferred on the Union in the Treaties lies with the Member States.” (Article 5(2) TEU).
• Poland remains open to dialogue with EU institutions and Member States on a fair and equal basis for all Member States. At the same time, particular emphasis should be placed on the need to base discussions on the same criteria in respect of each Member State.
• The EC’s report and the General Affairs Council’s Rule of Law Dialogue and debates in the European Parliament announced on the basis of this report must not duplicate the EU’s already existing mechanisms on the rule of law. At the same time, EU procedures of a political nature (Article 7 TEU) must not interfere with the law (proceedings before the CJEU concerning possible infringements of EU law).
• No provision in the Treaty gives the European Commission competence to assess the rule of law in the Member States. Therefore, the report, as it contains evaluative elements and is not supported by reliable evidence, should not be used by the European Commission or other EU bodies to apply any repressive measures against Member States or cause negative legal consequences. Poland is opposed to the European Commission’s approach, according to which the conclusions of the Report are to be used to strengthen other EU instruments, such as the EU Justice Scoreboard, the European Semester and the Next Generation EU instrument. Poland is opposed to the proposal that the report should have any impact on action taken in connection with the Regulation of the European Parliament and of the Council on the general system of conditionality to protect the Union budget.
• The methodology used by the EC in preparing the Report is not appropriate. In addition to the reporting elements (objective), the report contains evaluation elements (subjective) without any clear explanation. An analysis of the sources used by the European Commission shows, on the one hand, a lack of diversification, and, on the other hand, a tendency to make a statement based on assumptions made in advance. In response to press reports, the Commission relies on publishers with clearly leftist and anti-Government views, often publishing information that is not supported by reality and based on unfounded assumptions. There is no information or appeal indicating the existence of a different point of view from that adopted. The case law of the Court of Justice of the European Union, which is cited, is presented in isolation from the entire body of work of the Luxembourg judiciary. Moreover, the report refers to sources such as the EP resolution or Council recommendations, opinions of the Venice Commission, etc., which, as soft law acts, do not give rise to any legal obligations on the part of Poland and should not constitute source material as a basis for drawing up the report and formulating assessments. Similarly, the reports drawn up by circles of judges unfavourable to Poland’s reform of the judiciary system or the positions of unfavourable to the government non-governmental organisations and public opinion polling centres should be assessed. All these sources are purely for illustrative purposes and in no way oblige the authorities in Poland to take any action.
• In this context, the European Commission’s evaluation report on the provisions of the Polish Constitution concerning the division of competences between the Polish Supreme Court and the Constitutional Tribunal, as well as the undermining of the legality of the Tribunal, should be regarded as unacceptable and as undermining the fundamental principles of cooperation with Member States. A similar remark should be made with regard to the newly established NCJ, on which the CJEU ruled on 19.11.2020 in Joined Cases C-585/18, C-624/18 and C-625/18 (A.K. judgment), where its legality was not challenged.
• The Commission applies double standards when assessing the legislation of individual Member States. With regard to the other Member States, the Commission generally uses a gentle phrasing – criticism is mildly expressed through phrases such as: “faces difficulties”, “need attention”, “remains an issue”, “need to be more systematic”, “is not regulated”, “is under discussion”, “raise concerns”, “face challenges”, “is under stress”, “appears to be incomplete”. In addition, the EC often points out the reforms planned in the Member States in a given area (this is particularly evident, for example, in the part of the Report concerning the Czech Republic), using phrases: “changes have been adopted”, “a planned reform”. In the part of the Report devoted to Poland, apart from the above gentle phrases, there are several “stronger” phrases, such as: “raise serious concerns”, “raises particular concerns”, “concerns have so far not been resolved”, “may affect”.
• In many areas of the rule of law in Poland, Hungary and Romania, the EC emphasises the possibility of exerting political influence on a given body. This approach is not noticeable in relation to other Member States. The same legal regulations are also assessed differently. For example, the part of the report concerning Germany points to the small number of prison sentences imposed for the crime of defamation, and in relation to Poland the European Commission criticises the very possibility of initiating criminal proceedings, while stressing that civil law instruments are sufficient enough. Similarly, with regard to some Member States, the Commission only describes the legislation in question, without evaluating it positively or negatively (e.g. as regards the disciplinary system for judges in Ireland), while with regard to Poland, the EC uses evaluation formulae.
• Poland has read and analysed the contents of the Report. Poland does not support the assessments indicated in the analytical part of the Report. All legislative changes made to the Polish justice system since 2017 are aimed at deepening the compatibility of Polish regulations with values common to all Member States. These reforms are a response to social demands. In doing so, Poland respects the binding rulings of the CJEU. The Act adopted on 20 December 2019 by the Sejm – the lower chamber of the Polish Parliament, introducing a number of changes to the Act on the Common Court System, the Act on the Supreme Court and certain other acts is a consequence of the judgment of 19 November 2019 in joined cases C-585/18, C-624/18 and C-625/18 (A.K. judgment). A number of provisions have been amended in response to the allegations raised by the European Commission in cases C-619/18 (Independence of the Supreme Court) and C-192/18 (Independence of the Common Courts). In addition, Poland has taken the necessary steps to implement the CJEU provision of 8 April 2020 (C-791/19 R Commission v Poland) issued in a case of interim measures ordering the Polish government to suspend the activity of the Disciplinary Chamber of the Supreme Court – despite serious doubts about the CJEU’s cognizance in this respect (the system and organisation of the judiciary are the exclusive competence of the Member States).
• The Commission’s application of double standards in the assessment of national regulations is evident in particular with regard to its position on national judicial councils. The Polish model of appointing judges criticised by the Commission does not deviate from the models found in other Member States (this system was modelled on Spanish legislation) and meets all the guarantees of independence. The EC’s comments on the composition of the National Council of the Judiciary are a manifestation of insufficient consideration of the implications arising from the case-law of the Court of Justice, including in particular the analysis of the judgment of 19 November 2019 in joined cases C-585/18, C-624/18 and C-625/18 (the A.K. judgment) and ignoring the judgment of the Court of Justice of 9 July 2020 in Case C-272/19 VQ v. Land Hessen, in which the CJ ruled that the sheer numerical strength of the members elected by the legislature in the body involved in the process of appointing judges does not in itself undermine the principle of separation of powers which forms the basis of the democratic rule of law and is not incompatible with international and European standards in this area.
• With regard to the NCJ model, it is important to point out that the previously applicable non-transparent and unclear cooperative system has been criticised not only by the public, which is demanding reform, but also by the judges themselves. It should also be stressed that this system has also been criticised by the Venice Commission in its Rule of Law Statement of 11-12 March 2016, which stresses that the involvement of judges alone carries the risk of creating a sense of self-protection, self-interest and cronyism. As far as the composition of the Judicial Council is concerned, both politicisation and corporatisation must be avoided. The functioning of the National Judicial Council was also addressed by Professor Andrzej Rzepliński – former President of the Constitutional Tribunal. He pointed out that “the NCJ should be interested in obtaining external reviews, especially of candidates for the highest judicial offices, i.e. judges of the Supreme Court and the Supreme Administrative Court. And this is not just about reviews by specialists, but also by local communities and NGOs. All opinions about candidates must be public, above all because of the great power that judges have over each of us. Judges have a very indirect mandate of democratic legitimacy to exercise power”.
• Despite the EC’s critical assessment, the reform of the organisational structure and scope of competence of the Supreme Court, under which two new chambers of the Court were established: The Disciplinary Chamber and the Chamber of Extraordinary Control and Public Affairs enable the judicial supervision of the activities of common and military courts, and deepen the sense of social justice. The newly established chambers of the Supreme Court provide guarantees of independence as defined in the case-law of the Court of Justice. All judges of the Supreme Court are elected and appointed in a procedure that guarantees their independence from the legislative and executive powers. The independence of Supreme Court judges is not only due to the procedure for appointing them but, above all, to an extensive system of constitutional guarantees that ensure that they adjudicate completely free of external pressure. There has been no political influence on any ruling issued by Polish courts after the introduction of these reforms. Therefore, there is no real justification for criticising the solutions adopted, as there is no evidence of any negative impact of the reforms introduced in the judiciary on the independence of the courts.
• The European Commission, with regard to Poland, expresses a number of concerns about the reform of the disciplinary system carried out in 2019. These concerns are not justified, because, in the context of the definition of a disciplinary offence, the Act of 20 December 2019 details the existing provisions, which defined a disciplinary tort only by means of general undefined phrases. It should be recalled that the apoliticisation of judges is a constitutional principle in Poland and its implementation ensures that the right to an impartial and independent court is guaranteed under international law. In the scope of the disciplinary liability, the act does not diverge from standards existing in other European countries, including from similar French and German solutions. Despite similar regulation, the rules on disciplinary proceedings for judges in other Member States have not been criticised by the Commission. The changes introduced are aimed at preventing the destabilisation of public life by undermining the legality of the functioning of judicial and constitutional bodies. Moreover, it should be emphasised that the CJEU itself, in its ruling of 19 November 2019, indicated the inadmissibility of examining the appointment of a judge in a situation where he/she was appointed by the President. However, this important finding also escaped the EC in drawing up the report. At the same time, it should be stressed that the possibility of holding a judge liable for disciplinary action due to a ruling that blatantly violates the law (the so-called wytyk [grievance]) has existed for many years in the Polish legal system and has not, to date, raised any objections from the EC.
• It should also be added that the introduction of the institution of an extraordinary complaint is intended to eliminate from the legal system judgments which blatantly violate the principles of social coexistence and thus have a negative impact on the fate of citizens and could not be removed in the course of the envisaged remedies. To see the introduction of this institution as a political act is an unauthorised abuse and an act to the detriment of those who have been harmed by the justice system.
• Contrary to the Commission’s position, the effectiveness of work in Polish courts remains stable. The Commission selectively refers to the data published in the EU Justice Scoreboard 2020, referring only to less favourable data for Poland and not including favourable data. The time for handling civil and commercial cases in Poland has only slightly increased compared to previous years. In this respect Poland ranks 15th among the EU Member States. However, the time taken to deal with administrative matters remains stable and ranks Poland fourth among the other Member States.
• There have been no legislative changes between 2018 and 2020 that were intended to fundamentally change the organisation of justice. The judicial model (general, administrative, military) has not been modified.
• The report lacks the argument that judicial reform is undermining the effectiveness of the fight against corruption. On the contrary, the Commission positively assesses a strong and solid basis for the investigation and prosecution of criminal offences and the judgments on them. However, the EC’s concerns about the independence of the main institutions responsible for preventing and combating corruption are unfounded. The supervision of the Prime Minister over the Central Anti-Corruption Bureau is of an organisational nature, manifested in the granting of the statute for the CBA and in determining the direction of the CBA’s activities through non-binding general guidelines. Under no circumstances does this supervision come down to interfering in the statutory activities of the CBA. In turn, the combination of the functions of Minister of Justice and Prosecutor General enables a more intensive fight against corruption. Moreover, there are no legally binding regulations for Poland to separate the office of the Prosecutor General from that of the Minister of Justice, which indicates the possibility of adopting this type of solution when it is justified by the criminal policy pursued in a given country.
• In the Report, the Commission rightly points to guarantees to protect the independence of the National Broadcasting Council as the media regulator. However, the European Commission’s concerns about the independence of the National Media Council are not justified. This body is independent of government administration. The plurality of the Council’s views provides a statutory indication of how its composition should develop in relation to the distribution of parliamentary influence. As recognised by the Media Pluralism Monitor, owners of the largest media in Poland have no open affiliation with political parties, and most of the news media, including digital outlets, promote distinct political views. We believe that it is abusive to draw conclusions about harassment of journalists or actions with a “freezing effect on media freedom” based on only two entries by journalists on the Council of Europe platform promoting the protection and safety of journalists.
• As an unauthorised interference in national legislation, we should also assess the criticism of the Polish solutions, which have been in force for many years, consisting in criminalising acts consisting in offending national and religious symbols and the image of a public official. This issue is the full preserve of the Member States and stems from their traditions and culture, which form part of the national identity that is subject to legal protection under Article 4 TEU. This solution has both a deep historical justification and is socially desirable and, in the case of a public official, enables him/her to perform his/her duties with dignity. It cannot in any way be considered to violate freedom of expression and the legal protection of journalists.
• Poland does not share the European Commission’s criticism of the law-making process and the alleged use of accelerated legislative procedures to adopt reforms. The accelerated legislative route may be used for MPs’ legislative initiatives. Contrary to the European Commission’s position, the data from the Chancellery of the Sejm shows that with regard to the laws adopted, the number of legislative initiatives by MPs in the 7th term of the Sejm (2011-2015) was 241, while in the 8th term of the Sejm (2015-2019) this number fell to 184.
• The allegations concerning the restrictions introduced during the fight against the COVID-19 pandemic and their impact on the date of the presidential elections – which, in the EC’s opinion, was supposed to justify the introduction of the state of emergency – should be assessed as unfounded. It should be stressed that, according to the Polish Constitution, an epidemic is not a premise for introducing a state of exception – a state of emergency, martial law or natural disaster. At the time of the fight against the first wave of coronavirus, epidemic threats were regulated by the Act of 5 December 2008 on the Prevention and Control of Infections and Infectious Diseases in Human Beings, which regulated epidemic conditions. It does not provide for the suspension of presidential or parliamentary elections linked to the introduction of an epidemic state.
• In the report, the Commission is critical of the so-called “LGBT-free zones” resolutions adopted by some Polish municipalities. In this respect, the European Commission reproduces untrue information which is mainly publicised by opposition formations solely for their own political purposes, without taking into account the interest of the state and its national identity in the definition of the family contained in the Polish Constitution and subject to legal protection under Article 4 TEU. The resolutions do not introduce “LGBT-free zones” and do not exclude or discriminate against anyone, they merely support the constitutional definition of family and marriage as a union between a man and a woman. The resolutions are not addressed to this group of people at all, but refer to the “LGBT ideology”. The importance of the resolutions is that they establish an ideology-free zone, not an exclusion zone for LGBT people, and their aim is not to restrict the rights of these people, but to ensure education and training in accordance with the Polish Constitution, as requested by parents of children from these communities.
• The claims that the municipalities which have adopted the Charter of Family Rights supposedly distribute EU funds among local government organisations on the basis of the criterion of belonging to sexual minorities are completely unfounded, because they have no justification or confirmation.
• Allegations of arrests and detentions of LGBT people and slander campaigns against them must be considered unfounded and unjustified (in particular, the statement of the Council of Europe Commissioner for Human Rights of 8 August 2020 – footnote 142 of the report cannot be a reliable source of information). It should be pointed out that the grounds for arrest and detention are regulated in Poland by the Code of Criminal Procedure, and the application of these methods is associated with a high probability of committing crimes. Pre-trial detention shall take place only on the basis of a court decision – after assessment of the evidence. This also took place in August 2020. There are no grounds for assuming that arrests and detentions were made solely on the grounds of membership of sexual minorities and, in particular, on the initiative of the Government.
• The criticism of the media, which negatively assess the Ombudsman’s activities, is also incomprehensible. It should be stressed that the activities of the Ombudsman, like any other representative of public authority, are subject to social evaluation, particularly in a democratic society where various pluralist media coexist.
• The same is true for the criticism voiced in the report regarding solutions involving the disclosure of foreign subsidies received by non-governmental organisations. In this context, it should be stressed that the essence of this regulation is the transparency of the activities of non-governmental organisations related to their participation in social life, which undoubtedly also has an impact on ensuring public safety (for example, in the case of phenomena such as terrorism).