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European Commission confronts Poland on rule of law

Yesterday the Commission decided to start legal proceedings against Poland to protect the rule of law and the independence of the judiciary in the country. After almost two years of failed dialogue, the Commission concluded that there is a clear risk of a serious breach of the rule of law in Poland. According to the Commission, a wide range of other actors at European and international levels have expressed their concerns about the reform of the Polish justice system since the right-wing Law and Justice party took power after winning the parliamentary elections in 2015.

Judicial reforms in Poland mean that the country’s judiciary is now under the political control of the ruling majority, the Commission stated on Wednesday. In the absence of judicial independence, serious questions are raised about the effective application of EU law.

Frans Timmermans, vice-president of the EU, did not mince his words at a press conference yesterday: “Today in Poland the constitutionality of legislation can no longer be guaranteed.”

The measures by the Commission include a proposal to the Council to adopt a decision under Article 7(1) of the Treaty on European Union. The article provides for the Council, acting by a majority of four fifths of its members, to determine that there is a clear risk of a serious breach by a Member State of the common values referred to in the treaty.

If such a breach has been determined, the Council may decide to suspend certain rights to the Member State in question, including its voting rights in the Council.

The Polish ministry of foreign affairs denounced the procedure launched by the Commission as “essentially political, not a legal one”. It added, “It puts an unnecessary burden on the mutual relations, which may render it difficult to build understanding and mutual trust between Warsaw and Brussels.”

According to the Commission the Polish authorities have adopted more than 13 laws affecting the entire structure of the justice system in Poland. The common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.

But there is a way out for Poland. The Commission also issued recommendation, setting out the steps that the Polish authorities can take to remedy the current situation. The Polish authorities are invited to address the problems within three months and to inform the Commission of the steps taken to that effect.

Should the Polish authorities implement the recommended actions, the Commission says that it is ready to reconsider its proposal to the Council.

The Commission states that it is up to Poland to identify its own model for its justice system, but it should do so in a way that respects the rule of law; this requires it to safeguard the independence of the judiciary, separation of powers and legal certainty.

Poland on its part says that it wants to continue to reform its justice system. “We owe it to our voters; this is what society expects of us. We cannot accept one-sided and unfair opinions directed at Poland. The negative information campaign about reforms carried out in our country is not based on facts and prevents us from addressing the allegations.”

It puts its hope on the Court of Justice of the European Union. “Poland has always respected and will continue to respect the judgments of the Court…We are of the opinion that doubts regarding the compatibility of national law with EU law should be resolved by a routine procedure at the Court of Justice.”

A breach of the rule of law in one Member State has an effect on all Member States and the Union as a whole for two reasons, the Commission writes.

Firstly, the independence of the judiciary is a value that reflects the concept of European democracy. Secondly, when the rule of law in any Member State is put into question, the functioning of the Union as a whole, in particular with regard to justice cooperation and the functioning of the internal market, is put into question too.

The Brussels Times