On 3 December 2020, the Commission sent an additional letter of formal notice to Poland, adding a new grievance to the infringement procedure started on 29 April 2020. [ Ссылка ] The European Commission sent an additional reasoned opinion to Poland on Wednesday as it steps up its legal action to safeguard the independence of the judiciary in Poland.
Poland countdowns a month to respond to justice system fears
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The EU executive had on 3 December 2020 sent Poland an additional letter of formal notice, adding a new grievance to the infringement procedure started on 29 April. Taking note of Poland's reply to letter, the Commission says this has failed to address EU concerns.
For this reason, the Commission says it has now decided to move forward to the next step in the infringement procedure by sending an additional reasoned opinion to Poland.
The Commission considers that Poland violates EU law by allowing the Disciplinary Chamber of the Supreme Court – the independence and impartiality of which is not guaranteed – to take decisions, which have a direct impact on judges and the way they exercise their function.
These matters include cases of the lifting of immunity of judges with a view to bringing criminal proceedings against them, and the consequent temporary suspension from office and the reduction of their salary.
The Disciplinary Chamber is also deciding on matters related to labour law, social security and the retirement of Supreme Court judges.
By giving the Disciplinary Chamber powers that directly affect the status of judges and the exercise of their judicial activities, the Commission says Polish legislation jeopardises the ability of the respective courts to provide an effective remedy, as required by the second subparagraph of Article 19(1) TEU. The mere prospect for judges of having to face proceedings before a body whose independence is not guaranteed creates a 'chilling effect' for judges and can affect their own independence.
Poland is given one month to reply to this additional reasoned opinion and to take the necessary measures to comply with EU law, otherwise the Commission may refer the case to the Court of Justice.
Poland's reply did not address the Commission's concerns. For this reason, the Commission decided to advance the infringement today.
The Commission considers that Poland violates EU law by allowing the Disciplinary Chamber of the Supreme Court – the independence and impartiality of which is not guaranteed – to take decisions, which have a direct impact on judges and the way they exercise their function.
These matters include, among others, cases of the lifting of immunity of judges with a view to bringing criminal proceedings against them.
The mere prospect of having to face proceedings before a body whose independence is not guaranteed creates a ‘chilling effect' for judges and can affect their own independence.
Poland has one month to take the necessary measures to comply with EU law, otherwise the Commission may refer the case to the Court of Justice.
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The rule of law is one of the common values upon which the European Union is founded and embraced by all member states. It is enshrined as such in Article 2 of the Treaty on European Union. It is also essential for the functioning of the EU as a whole, for example with regard to the Internal Market, cooperation in the area of Justice and Home Affairs, and ensuring that national judges who are also 'EU judges' can fulfil their role in ensuring the application of EU law and can properly interact with the CJEU in the context of preliminary ruling procedures. The European Commission, together with other institutions and the Member States, is responsible under the Treaties for guaranteeing the rule of law as a fundamental value of our Union and making sure that EU law, values and principles are respected.
Events in Poland led the European Commission to open a dialogue with the Polish Government in January 2016 under the Rule of Law Framework. The process is based on a continuous dialogue between the Commission and the Member State concerned. The Commission keeps the European Parliament and Council regularly informed.
Due to lack of progress through the Rule of Law Framework, on 20 December 2017, the Commission triggered the Article 7(1) procedure for the first time, by submitting a Reasoned Proposal for a Decision of the Council on the determination of a clear risk of a serious breach of the rule of law by Poland. There were already several debates (26 May and 16 October) and three hearings on the Rule of Law in Poland amongst Member States in the General Affairs Council (26 June, 18 September and 11 December).
