Open Letter to the President of the European Commission regarding Poland’s disciplinary regime for judges and the urgent need for interim measures in Commission v Poland (C-791/19)
Ever since the European Commission initiated a third infringement procedure in respect to the recurrent attacks on the rule of law by Polish authorities last April, the situation has continued to seriously deteriorate. We have now reached the unprecedented and frightening stage where Polish judges are being subject to harassment tactics in the form of multiple arbitrary disciplinary investigations, formal disciplinary proceedings and/or sanctions for applying EU law as interpreted by the ECJ or ‘daring’ to refer questions for a preliminary ruling to the Court of Justice.
In addition, Polish authorities are now openly challenging the authority of the rulings recently adopted by the ECJ and the not-yet-captured Labour and Social Security Chamber of the Supreme Court. These judgments concern both the Disciplinary Chamber of Poland’s Supreme Court, whose legality is being challenged in the pending infringement procedure previously mentioned, and the new National Council of the Judiciary, whose lack of independence had previously led to its suspension from the European Network of Councils for the Judiciary (ENCJ).
As representatives of non-governmental organisations and scholars specialising in matters relating to the rule of law and the protection of human rights, we write this open letter so as to urge you to take immediate steps to stop the rapidly increasing legal chaos in Poland.
As you yourself keep repeating, “there can be no compromise when it comes to respecting the rule of law.” This is why we are asking you to promptly submit to the European Court of Justice an application for interim measures in the infringement case C-791/19 Commission v Poland now pending before the Court of Justice. Without interim measures in place, Polish authorities evidently feels free to openly persecute judges who seek to apply and enforce EU law via the two institutions they de facto control: the Disciplinary Chamber and the National Council of the Judiciary.
The time has come to accept we are facing a situation in which EU law has broken down. Interim measures are called for before the situation gets worse and irreparable damage is done.
The prior Commission asked for interim measures in the case in which the government of Poland sought to capture the Supreme Court by retroactively lowering the retirement age of its judges (C-619/18 R). The Court of Justice agreed to grant the Commission’s request and Poland was ordered to maintain the status quo until the Court could rule in the matter.
Given that Polish authorities are now openly challenging the authority of ECJ case law and actively seeking to prevent Polish judges from applying EU law, while an infringement action that challenges their attempts to fatally undermine the independence of Polish judges through a new disciplinary regime is pending, fresh action is required. It is imperative to prevent the Commission from losing its ability to enforce any favourable ruling that it may eventually receive. Interim measures are therefore essential because, if Polish authorities succeed in intimidating and/or removing the judges who are most keen to apply EU law and to defend the rule of law more generally, it will be too late for the Commission’s pending infringement action to have any impact by the time the ECJ finds Poland to have violated – for the third time in a row – the principle of judicial independence.
This is why the Commission, in the context of interim proceedings, must request the Court to order Poland to immediately adopt the following interim measures:
– refrain from all activities, including preliminary disciplinary investigations or formal disciplinary proceedings with respect to judges on account of the content of their judicial decisions or requests for preliminary rulings;
– ensure both that the Disciplinary Chamber suspends all of its activities in light of the ECJ preliminary ruling (Joined cases C-585/18, C-624/18 and C-625/18) and the Supreme Court ruling finding it not to constitute a “court” within the meaning of EU and Polish law and that other authorities, including disciplinary officers and prosecutors, refrain from bringing actions to this chamber;
– ensure both that the President of the Disciplinary Chamber (or any person acting on behalf of the President) is no longer able to establish, on an ad-hoc basic and with an almost unfettered discretion, disciplinary courts of first instance to cases brought against ordinary court judges and that the disciplinary courts already established in this way refrain from considering cases and issuing judgments;
– ensure that the people appointed to the Disciplinary Chamber do not participate in the Supreme Court’s bodies – including the General Assembly of the Supreme Court Judges – in procedures intended to fill the office of the First President of the Supreme Court, which will be vacant in April 2020, or the presidents of the Supreme Court heading particular chambers;
– ensure that the National Council of the Judiciary refrains from nominating any new individual to be appointed as a judge, including to the Disciplinary Chamber, and – more generally – abstains from any action or statement which undermine the judicial independence of Polish judges.
We wish this open letter were not necessary. Sadly, it is well established that Polish authorities have deliberately ignored the Commission’s multiple recommendations ever since the Commission’s rule of law framework was activated in respect of Poland in January 2016. Rather than taking the rule of law dialogue as a warning and an invitation to return to the rule of law, the Polish authorities have instead intensified the repression of independent judges and prosecutors.
The Rubicon has now been crossed with Polish authorities actively and purposely organising non-compliance with the ruling of the Court of Justice of 19 November 2019 and the judgment of the Supreme Court of 5 December by claiming that neither the ruling of the Court of Justice nor the judgment of the Supreme Court are of any legal significance when it comes to the continuing functioning of the Disciplinary Chamber and the National Council of the Judiciary.
Poland’s ruling party’s strategy is clear: create faits accomplis and hide behind a veneer of legality if and when required by relying on the captured Constitutional Tribunal, the so-called Disciplinary or Extraordinary Control and Public Affairs Chambers, or the ENCJ-suspended Polish National Council of the Judiciary to in effect nullify the effect of EU law in Poland whenever convenient for the ruling party.
The attacks on judicial independence we are witnessing in Poland are unprecedented in the history of the EU and legal chaos is bound to ensue and spread because Polish authorities are openly and purposefully ignoring their duties and obligations as a matter of Polish as well as EU law. If not promptly addressed through interim measures, we have no doubt this will mark the beginning of the end of the EU’s common and interconnected legal order.
“A Europe that protects must also stand up for justice and for values. Threats to the rule of law challenge the legal, political and economic basis of our Union. The rule of law is central to President von der Leyen’s vision for a Union of equality, tolerance and social fairness,” says the European Commission’s website.
Time has come to put words into action by urgently applying for interim measures so as to preserve what is left of the rule of law in Poland while there is still time to prevent its complete abolition.
Yours faithfully,
Professor Laurent Pech, Middlesex University
Professor Kim Lane Scheppele, Princeton University
Professor Wojciech Sadurski, University of Sydney, University of Warsaw
Professor Alberto Alemanno, HEC Paris
Professor Leszek Balcerowicz, SGH Warsaw School of Economics
Professor Ryszard Balicki, University of Wrocław
Professor Petra Bárd, Central European University
Professor Gráinne de Búrca, New York University
Professor Paul Craig, University of Oxford
Dr Tom Gerald Daly, Melbourne School of Government
Professor Monika Florczak-Wątor, Jagiellonian University in Kraków
Professor Gábor Halmai, European University Institute
Professor R. Daniel Kelemen, Rutgers University
Professor Dimitry Kochenov, Groningen University
Professor Tomasz Tadeusz Koncewicz, University of Gdańsk
Professor Marcin Matczak, University of Warsaw
Professor John Morijn, Groningen University
Professor Sébastien Platon, Bordeaux University
Professor Tomasz Pietrzykowski, University of Silesia in Katowice
Professor Anna Rakowska-Trela, University of Łódź
Professor Roman Wieruszewski, Polish Academy of Sciences
Professor Jerzy Zajadło, University of Gdańsk
Amnesty International
Association for the Defense of Human Rights in Romania – the Helsinki Committee (APADOR-CH)
Association of Judges “THEMIS” (Poland)
Bulgarian Helsinki Committee
Campaign Against Homophobia (KPH) (Poland)
Civil Development Forum (FOR) (Poland)
Civil Liberties Union for Europe (Liberties)
Estonian Human Rights Centre
Foundation Prof. Bronisław Geremek Centre (Poland)
Free Courts (Poland)
Helsinki Foundation for Human Rights (Poland)
Homo Faber (Poland)
Human Rights Monitoring Institute (Lithuania)
Human Rights Watch
Hungarian Helsinki Committee
Hungarian Civil Liberties Union
Italian Coalition for Civil Liberties and Rights (CILD)
Institute for Law and Society INPRIS (Poland)
Institute of Public Affairs (Poland)
International Federation for Human Rights (FIDH)
Irish Council for Civil Liberties
“Lex Super Omnia” Association of Prosecutors (Poland)
Panoptykon Foundation (Poland)
Polish Judges’ Association “Iustitia” (Poland)
Polish National Association of Judges of Administrative Courts (Poland)
Polish Society of Anti-Discrimination Law
Presidium of the Judges’ Cooperation Forum (Poland)
Professor Zbigniew Hołda Association (Poland)
Rafto Foundation for Human Rights (Norway)
Rights International Spain
Stefan Batory Foundation (Poland)
Wiktor Osiatyński Archive (Poland)
At a time when Polish politicians disagree about almost everything, one subject is hardly discussed at all: policy towards Russia. We present the analysys by Katarzyna Pełczyńska-Nałęcz from forumIdei.
Civitates: consortium that we are a part of, has funded a projects of support for civil society organizations which have worked tirelessly in difficult conditions and keep democracy and public participation at the heart of society. One of those project is placed in Poland. Dorota Setniewska from the NGO Klon/Jawor Association, a leading partner in a new set up aimed at boosting the presence of civil society organizations in Poland, explains what has changed in recent years.
© Jan Van de Vel
The stabbing and death of Pawel Adamowicz, the liberal mayor of the Polish city of Gdansk in January 2019 was perhaps the clearest sign yet of the tensions and divisions in the country. Civitates has funded projects of support for civil society organizations which have worked tirelessly in difficult conditions to try to break down these divisions and keep democracy and public participation at the heart of society.
“At the beginning of 2017 we built an NGO coalition after a series of attacks against organizations on public television” – says Dorota Setniewska from the NGO Klon/Jawor Association. The idea was not to focus on one issue, but to broaden efforts, engage with a variety of people and promote democracy across Poland. There are now over 30 organizations focusing on a range of issues whose work is boosted by the coalition.
Civil society organizations
Before we did anything, we wanted to make sure that the work of NGOs was in line with the needs of the country and that people understood the positive contribution of civil society organizations, says Setniewska. “We decided to check what people had in mind and what they expected from us,” she explains. “We created focus groups in different villages and cities across Poland.” From these meetings, the organizations understood that people often did not understand what was meant by terms such as “NGO” or “nonprofit”. For the general public, the term “social organization” was clearer and less abstract, says Setniewska. Using this term “brings us closer to people”, she believes.
Positive impact
“The public’s trust in polish NGOs is pretty high, but when we checked we found that people associated the civil sector with helping children or working on health issues, but not with democracy or civic rights for example,” says Setniewska.
The NGOs decided to change this by working more closely with people and showing the positive impact they are having in local neighborhoods. This led to the launch of a nationwide campaign called “Organizacje społeczne.To Działa” or “Civic organizations. It Works” in English, recruiting organizations from all over Poland and targeting different audiences to ensure the voice of NGOs is better heard in public debates and their work given more support and recognition. The campaign is being supported by consultants to improve the way NGOs in Poland communicate and strategize, not simply as individuals, but also together as a sector.
Joint calendar
“We are using social media, Facebook, Instagram, Twitter and YouTube, and working with traditional media to tell emotional human stories, share infographics and use facts to bust myths,” explains Setniewska. The campaign is also aimed at encouraging members of the public to join civil society organizations or to carry out voluntary work with them.
The whole of the NGO sector has come together to work under the same umbrella to increase its impact and understanding of civil society organizations, she adds. This is helped by the creation of a joint calendar, enabling NGOs working on different issues to communicate with a single voice around a specific event or a special national or international day, such as the United Nations backed human rights or earth day.
Solidarity & trust
The impact of the change of direction so far is pretty difficult to measure, admits Setniewska, but she insists the NGO coalition will continue to measure reactions and coverage in the media. It may even hold new focus group meetings in the future to see whether public perception has altered. Most importantly is that “we are in this for the long haul”, she says, estimating the campaign will need to continue for ten years or longer to really make a difference in the fight against civic space shrinking in Poland. “We believe we are now stronger in the face of attacks and we will continue to build solidarity and trust in society,” says Setniewska.
“We believe we are now stronger in the face of attacks and we will continue to build solidarity and trust in society,” says Setniewska.
Civitates is a philanthropic initiative for democracy and solidarity in Europe. It provides funding for civil society actors to come together, revitalize public discourse, and ensure that all voices are heard. One of Civitates’ activities is strengthening the capacity of civil society actors, collectively and more effectively.
The 16 members of the consortium are:
Dear representatives of the civil society!
We are calling on you to join the final stage of a campaign led by civil society organisations (CSOs) to make a new EU Rights and Values programme, planned for 2021-2027, an effective tool for promotion of democracy and European values in the EU. The goal of the programme is to support initiatives which promote and protect democracy, rule of law, equality, non-violence, civic participation, cultural heritage. It will be open to CSOs operating at local, national and European level and its procedures will be simplified to ensure access to funding for smaller, grass-root initiatives.
The shape of the programme gives hope that promotion of democracy and European values will get priority in the EU. However, the originally planned budget – 641 million EUR for 7 years for initiative in all EU countries is far too small to make a real difference. We have to convince the governments to increase the budget of the programme at least to the level suggested by the European Parliament, that is to 1.83 billion EUR. The negotiations of the next 7-year EU budget begin this fall. We have to act now!
If you represent a CSO in the EU, we urge you to sign a letter to your government and a separate letter to Members of the European Parliament (MEPs) asking them to raise the budget of the Rights and Values programme to the level of 1.83 billion EUR recommended by the European Parliament.
You can sign the LETTER to the governments and/or national parliaments HERE
The letter to Members of the European Parliament is available HERE. The letter was sent out to MEPs on Monday, 7 October. We continue to collect signatures for the letter to member states’ governments until Thursday, 17 October.
Ewa Kulik-Bielińska
Executive Director
Stefan Batory Foundation
Translations of the letter to the governments:
Translations of the letter to Members of the European Parliament:
Background information:
Information on the Rights and Values programme – legislative train
Regulation on the Rights and Values programme (with European Parliament’s amendments)
Along with 75 organisations we sign an open letter to urge the EU Council to adopt the Parliament’s position on reporting channels. The whistleblower protection directive is currently in trilogue. The signatories express serious concerns about the reporting channels regime in the Council and Commission positions in these negotiations.
