Non-governmental organisations (including the Open Dialogue Foundation) and academics specialising in issues related to the rule of law and the protection of human rights, sent an open letter to the President of the European Commission, in which they call for immediate steps to stop the rapidly growing legal chaos in Poland, including prompt submission in the European Court of Justice, of an application for interim measures in Case C-791/19 Commission v Poland, pending before the Court of Justice. The full content of the letter is presented below.
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 feel
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 basis 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
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
Dr Paweł Filipek, Kraków University of Economics
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 Steve Peers, University of Essex
Professor Sébastien Platon, Bordeaux University
Professor Tomasz Pietrzykowski, University of Silesia in Katowice
Professor Anna Rakowska-Trela, University of Łódź
Maximilian Steinbeis, Verfassungsblog
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)
Open Dialogue Foundation
Open Society European Policy Institute (Belgium)
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)
MEDEL – Magistrats Européens pour la Démocratie et les Libertés
Sources: verfassungsblog.de, medelnet.eu