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Report of the European Commission’s Rule of Law

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Report of the European Commission’s Rule of Law 

Polemic elements for the analytical part of the report (the justice system)

 

  1. The assessments in the European Commission’s Rule of Law Review Cycle – Chapter for Poland are untrue. Legislative changes made in the Polish judicial system since 2017 have been aimed at ensuring compliance of the Polish regulation with the values common to all EU Member States. Furthermore, the judiciary reforms introduced into the Polish legal system are in line with the EU law.
  2. The Commission expresses concerns about the Constitutional Tribunal, without specifying any specific allegations and limiting itself to pointing out that the objections regarding the independence and legality of the Constitutional Tribunal, raised by the Commission under the procedure under Art. 7 of the Treaty on European Union, have not yet been resolved. The demand of the EU institutions that “the President and the Vice-President of the Constitutional Tribunal be elected in accordance with the law” undoubtedly indicates that the dispute over this court is primarily personal, not systemic. De lege lata, there are relevant legal regulations that guarantee the functioning of the Constitutional Tribunal in accordance with the Constitution and EU law.
  3. The EC’s comments with regard to the composition of the National Council of the Judiciary are a sign of insufficient consideration of the implications of the judgments 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 (AK 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 it was concluded that the numerical majority of members elected by the legislature in the body participating in the process of appointing judges does not violate the principle of separation of powers constituting the basis of a democratic state ruled by law and is not inconsistent with the international and European standards applicable in this field.
  4. Despite the critical assessment of the European Commission, the reform of the organizational structure and scope of competence of the Supreme Court, under which two new chambers of this Court were established: the Disciplinary Chamber and the Extraordinary Control and Public Affairs Chamber, enables judicial supervision over the activities of common and military courts and deepens the sense of social justice. The newly created chambers of the Supreme Court give the guarantees of independence laid down in the case law of the Court of Justice. 
  5. It is not true that the influence of the executive powers over the judiciary has increased in Poland. All judges of common courts, administrative courts and the Supreme Court are elected and appointed in a procedure that guarantees their independence from the legislative and executive authorities. The independence of the judges results not only from the procedure of their appointment, but above all from the extensive system of constitutional guarantees which ensure that they adjudicate in a manner completely free from external pressure, i.e. appointment for an indefinite period (Art. 179 of the Constitution), irremovability (Art. 180 of the Constitution), immunity (Art. 181 of the Constitution), obligation to remain apolitical (Art. 178 (3) of the Constitution). Judges of the Supreme Court and the Supreme Administrative Court are prohibited from taking up additional employment, except for employment as a research and teaching worker (Article 44 of the Act of December 8, 2017 on the Supreme Court, Article 49 of the Act of July 25, 2002 – Law on the system of administrative courts).
  6. The allegations of the Commission expressed in relation to the disciplinary system reform carried out in 2019 are unfounded. In particular, in the context of the definition of a disciplinary offense, the Act of 20 December 2019 details the existing provisions which defined a disciplinary tort only with the use of vague, unspecified phrases. It is not true that judges in Poland may be held responsible for the content of the decisions issued. A finding of a disciplinary offense, manifested in the issuance of a specific decision by a judge, requires an obvious and gross offense against the law. Disciplinary liability is caused not by the fact that a specific decision has been issued, but by the fact that a qualified infringement of the law (obvious and gross) has been committed. The provision of art. 107 § 1 of the Act of 27 July 2001 – Law on the System of Ordinary Courts does not allow the judge to be held responsible for the content of the judgment, and even less for making a preliminary question pursuant to Art. 267 of the Treaty on the Functioning of the European Union. In terms of disciplinary liability, the Act does not differ from the standards existing in other European countries, including similar French and German solutions, where such behavior is subject to more extensive liability than in this Act – i.e. criminal liability. 
  7. By introducing the principle of prohibiting the examination of the legality of the appointment of a judge by the President of the Republic of Poland, the Act of 20 December 2019 strengthens the guarantees of irremovability of a judge, and implements the judgment of the CJEU in the case of A.K., where it was confirmed that the appointment of judges by the President of the Republic of Poland, including judges of the Supreme Court, cannot be subject to judicial review (point 133).
  8. The European Commission’s critical remarks regarding the law-making process and the alleged use of accelerated legislative procedures to adopt reforms are not true. The accelerated legislative path may be used in the case of parliamentary legislative initiatives. Contrary to the position of the European Commission, data from the Chancellery of the Sejm show that in relation to the laws passed, the number of parliamentary legislative initiatives in the 7th term of the Sejm (2011-2015) was 241, while in the 8th term of the Sejm (2015-2019) this number decreased to 184.