The Polish government of the populist Law and Justice (PiS) party wants to have its cake and eat it.
On July 13, the government-subservient Constitutional Tribunal is expected to rule, at Prime Minister Mateusz Morawiecki’s behest, that decisions from the Court of Justice of the EU aimed at returning judicial independence to Poland cannot be applied in Poland. On the very same day, the prime minister will be heading to Brussels to convince Ursula von der Leyen that the European Commission should swiftly recommend giving Poland 24 billion euros from the EU’s Recovery and Resilience Facility – the 750-billion-euro mix of grants and loans designed to help lift European economies out of the post-COVID malaise.
A breakdown of the rule of law and the parallel inflow of huge EU funds is a toxic mixture. It cannot be tolerated.
The EU is not merely a community based on democracy and the rule of law; it is also an organisation which functions in a way advantageous to undemocratic governments and might even strengthen their authoritarian impulses. Hungarian Prime Minister Viktor Orban’s system could never have arisen so rapidly without the benefit of EU funds, which form an indispensable pillar of this system.
With the recovery fund, this paradox is becoming a fundamental problem, as its disbursements are subject to less EU verification than funds from the “traditional” EU budget. The idea is that this recovery money should be spent as quickly as possible, without unnecessary formalities, so that economies can rebound at pace. The risk is, therefore, that without due care, the new EU funds will strengthen “grand corruption” in some states. This means a state system based on discretion and the logic of political particularism privileging those in power, who will exploit these resources for their own needs and those of their associates. The spread of this model of government is destroying the EU from within.
Last week, the Commission decided to withhold its recommendation of the Hungarian national recovery plan. According to the Commission, Hungary lacks an efficient anti-corruption system that would guarantee the money is protected against fraud. Putting the new EU funds for Hungary on hold is a landmark and overdue decision. But the EU should immediately address similar risks also in other countries – most notably in Poland.
Poland’s partial public prosecutor
Since 2015, when PiS came to power, the demolition of the rule of law has been an ongoing process.
On July 7, the government proposed a new law that would directly target the main independent and government-critical TV station TVN by denying it an extension of its broadcasting license. Forcibly closing down the main pillar of the independent media in Poland, owned by US media company Discovery, would be a truly Orbanesque or Putinesque move.
In the context of spending EU money, the key concern is related to the complete politicisation of the National Public Prosecutor’s Office, as well as the removal of systemic guarantees of the independence of the courts.
Since 2016, the prosecutor’s office has been entirely controlled by the justice minister, who performs the role of Prosecutor General. His level of control over the whole system is unheard of in other European countries. He can nominate and dismiss prosecutors at will, decide on promotions and rewards, arbitrarily move cases from one prosecutor’s office to another, make personal interventions in how investigations are proceeding, and change the prosecutors leading them. It is no surprise, then, that the prosecutor’s office does not intervene when the ruling party’s interests are threatened or that it acts on the diktat of a minister ignoring court rulings.
The justice minister and government also have enormous powers over the judiciary, and the country’s judges are constantly being harassed and persecuted if they dare to criticise the politicisation of the judiciary.
This system poses a severe threat to the EU, as its anti-corruption system is based on cooperation with national institutions. When the anti-corruption agency OLAF uncovers a case of fraud, it transfers it to the national institutions, leaving them to decide whether formal charges should be made. The EU has no influence on this. When Justice Minister Zbigniew Ziobro’s party spent European funds earmarked for the climate on a party convention – and in doing so hired companies connected to his party’s politicians – a public prosecutor under the charge of the same Zbigniew Ziobro simply closed the investigation.
It is against this backdrop that Poland has decided not to join the new European Public Prosecutor’s Office (EPPO), which has a mandate to actually prosecute people. Poland is also one of the few member states that has not committed itself to guaranteeing any of the principles of transparency when it comes to spending from the recovery fund.
The expected verdict of the Polish Constitutional Tribunal not would not only add insult to injury; it would derail the whole system of the protection of the rule of law in the EU. If Poland decided to boycott the CJEU’s jurisdiction in matters related to the functioning of judiciary, there would be no systemic guarantees for the proper management of the EU funds, as the independence of the courts would not only be severely hampered but also devoid of any efficient control.
The timing of the possible of the ruling is by no means accidental. Two days later, the CJEU is likely to rule that the entire Polish disciplinary system for judges, fully controlled by the government, contradicts the EU principle of judicial independence and must be abandoned. The verdict by the Polish constitutional court is meant to prevent the application of such a decision. The fundamental concept of the primacy of EU law would be binned.
Pre-emptive strike
The risks posed by these developments could not be higher. And the EU would be well advised to learn a lesson form the past. It needs to act not when a major corruption or the collapse of the rule of law system has already happened, but it must do so early enough to prevent such a scenario from happening.
Since January 1, the EU’s “mechanism to protect the EU budget” has been in place, which was created precisely to address such a threat. The Commission should activate this mechanism without delay for both Hungary and Poland. In particular, denying the primacy of EU treaties over the national constitution must be seen as what it is – a serious threat to the EU’s financial interests.
The Commission should also recommend that the Polish recovery plan will only be approved if sufficient principles of transparency are ensured, along with precisely defined criteria for selecting projects, effective monitoring by independent institutions and the full implementation of CJEU rulings.
These measures will be essential in deciding what kind of Europe will be reconstructed as a result of the exceptional solidarity between EU countries. Will it be a Europe standing on the firm foundation of the rule of law and democracy? Or one further undermined by authoritarian undercurrents feeding off EU support?
Piotr Buras
Piotr Buras is the head of the Warsaw office of the European Council on Foreign Relations think tank.
This piece first appeared on Reporting Democracy, part of the Balkan Investigative Reporting Network (BIRN).
Statement of civil society organisations on the takeover of the office of the Ombudsman by the parliamentary majority
As representatives of civil society organisations, we object to the hostile takeover of the office of Ombudsman by the ruling parliamentary majority. We do not accept the de facto settlement of our rights and freedoms by Julia Przyłębska’s politically dependent tribunal, the disregard of the fundamental principles of fair trial, including the independence and impartiality of judges, in its work.
The view taken yesterday by the tribunal is yet another example of the appropriation of the state by the party in power, the undermining of the foundations of democracy and the circumvention of the provisions of the Constitution in accordance with the principle: “when I am dead the deluge may come for aught I care”.
The provisions of the Constitution of the Republic of Poland do not preclude the continuation of the Ombudsman’s mission until a successor has been elected. On the contrary, the values enshrined in the preamble to the Constitution and its constitutional principles, such as continuity in the functioning of public authorities, civic trust in the state, as well as the concern that the fundamental rights and freedoms of citizens should not be breached, require that this office be held independently by a person who has previously been granted a democratic mandate until a successor is elected.
The opposite standard adopted by Julia Przyłębska’s tribunal means that we are all losing our protector. The people who will be most affected by this change are those for whom the Office of the Ombudsman has been the main refuge and advocate of their rights in recent years. Therefore, the people who will be most affected by this change are those who are at risk of exclusion for various reasons: people from smaller towns, the elderly, people with disabilities, people in crisis of homelessness, people belonging to minorities, especially sexual minorities, and people in detention centres. The Ombudsman’s Office received more than 72,000 requests for protection in individual cases in 2020 alone. In the light of recent events, Poland will also lose an important centre for speaking up for women’s rights.
As a civic society, we are also losing an important centre for social debate, a place where forgotten or ignored problems are raised, and where new ideas and solutions are forged. It is one of the last areas where people with different views could meet and respectfully seek common solutions to the problems they encounter.
The tribunal’s decision also poses a direct threat to several hundred people working in the Ombudsman’s Office. There is a risk of purges, an attack on their independence and behaviour, which is known from other institutions taken over in a similar way. We stand together in these difficult times with everyone working in the Ombudsman’s Office. We would like to thank them all, as well as the outgoing Ombudsman, for their hard work in upholding human rights in Poland.
We simultaneously demand that the election of a new Ombudsman takes place in accordance with the provisions of the Constitution. We consider any attempt to bypass the Sejm and the Senate when appointing an acting Ombudsman to be a circumvention of the provisions of the Constitution.
We ask the international community to monitor the actions of the ruling parliamentary majority in this regard.
List of signatures of the organisations:
Akcja Demokracja [Democracy Campaign]
The Wiktor Osiatyński Archive
Fundacja Ośrodek Kontroli Obywatelskiej OKO [OKO Centre for Civic Control Foundation]
Centre for Social Initiatives in Gliwice
Social Initiatives Development Centre CRIS
Roman Czernecki Educational Foundation
Federation for Women and Family Planning
The Donors Forum in Poland
Forum Unia Młodych [Youth Union Forum]
Fundacja “Przestrzeń dla Edukacji” [Space for Education Foundation]
360! Foundation
Fundacja Aktywności Lokalnej [Local Activity Foundation]
Autonomy Foundation
Fundacja Bęc Zmiana [Bęc Zmiana Foundation]
Bronisław Geremek Foundation
Entrepreneurship and Innovation Centre 50+ Foundation
Chustka Foundation
Silent Rainbow Foundation
ClientEarth Prawnicy dla Ziemi Foundation
Foundation for Poland
Goodwill Foundation
Fundacja Domu Baudouina [Baudouin Foundation]
The “Iustitia” Foundation for Legal Education
Ecological Foundation “Green Action”
Civil Development Forum (FOR Foundation)
Responsible Business Forum Foundation
Frank Bold Foundation
Fundacja Głuchych Zacisze [Zacisze Foundation for the Deaf]
The Stefan Batory Foundation
Jagoda Foundation
Liberal Culture Foundation
Znak Foundation for Christian Culture
Liberte! Foundation
Fundacja Machina Zmian [Machine of Change Foundation]
Lubartów Civic City Foundation
Mundus Cantat Foundation
WE Patients Foundation
Foundation for Pupils’ Rights
STER Foundation for Equality and Emancipation
Fundacja na rzecz Wolnomyślicieli [Foundation for Free Thinkers]
Fundacja Najpierw Mieszkanie Polska [First Flat Poland Foundation]
Fundacja Nowe Centrum [New Centre Foundation]
KARTA Centre Foundation
Panoptykon Foundation
Parent Project Muscular Dystrophy Foundation
Patria Foundation
Full of Life Foundation
Fundacja Pole Dialogu [Area of Dialogue Foundation]
Auxilium Foundation for People with Disabilities, Children and Youth
Fundacja Pomorskie Centrum Psychotraumatologii [Pomeranian Psychotraumatology Centre Foundation]
Przemijanie Foundation
Res Publica Foundation
Childbirth with Dignity Foundation
Rokoko Foundation
Independence of the Kitchen Foundation
Heart of the City Foundation
Shipyard Foundation
School with Class Foundation
Trzeci.org Foundation
Foundation Towards Dialogue
Faith and Rainbow Foundation
Freedom from Religion Foundation
WWF Poland Foundation
Snow Mountain Community Fund
Greenpeace Poland
Ponton Group
The Helsinki Foundation for Human Rights
Inicjatywa obywatelska “Chcemy całego życia!” [“We want a full life” Civic Initiative]
Institute of Public Affairs
Janów Association for Assistance HUMANUS
Kalisz Urban Initiative
Campaign Against Homophobia
Committee for the Defence of Democracy
Cracow Institute of Criminal Law Foundation
Stanisław Brzozowski Association Political Critique
International Institute of Civil Society
Mussszelka
Citizens of Culture
Wielkopolska Branch of Foster Parenthood Association
National Federation of Polish NGOs
All-Poland Women’s Strike
“Open Republic” Association against Anti-Semitism and Xenophobia
Robert Schuman Foundation
Polish Institute for Human Rights and Business
Polish Tourist and Sightseeing Society, Żyrardów Branch
Consultative Council to the All-Poland Women’s Strike
Citizens’ Network Watchdog Poland
Siedlce Association of Helping People with Alzheimer’s Disease
Amnesty International
Spring without Barriers Association
Stowarzyszenie Cała Naprzód [Full Steam Ahead Association]
Stowarzyszenie Dialog Społeczny [Social Dialogue Association]
Homo Faber Association
The Professor Zbigniew Hołda Association
Association for Legal Intervention
Klon/Jawor Association
Women in Film Association
Better World Association
Association of Young Scientists
Tolerado Society for LGBT People
Our Imaginarium Association
NOMADA Association for Multicultural Society Integration
Stowarzyszenie Oświata Polska [Polish Education Association]
Stowarzyszenie Plac Solidarności [Solidarity Square Association]
Stowarzyszenie RAZEM DLA KONARZEWA [TOGETHER FOR KONARZEW Association]
Association for the Development of the Kaliska Municipality
Śmiałowice Village Development Association
Stowarzyszenie SZERSZE HORYZONTY [Wider Horizons Association]
Stowarzyszenie TAK Trójmiejska Akcja Kobieca [Tricity Women’s Campaign Association]
Tarnowska Rospuda Association
Multicultural Kraków Association
Stowarzyszenie Wspólne Wójtowo [Common Wójtowo Association]
Zachodniopomorskie Smaki Association
Stowarzyszenie Zielone Dzieci [Green Children Association]
The Świętokrzyskie Centre for Social and Cultural Initiatives
Towarzystwo Dziennikarskie [Journalists’ Society]
Zalewska Land Lovers Society
Towarzystwo Muzyczne Ziemi Proszowickiej [Musical Society of the Proszowice Land]
Great Coalition for Equality and Choice
Free Courts
Czulent Jewish Association
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)
