Commission Opinion on the Rule of Law in Poland and the Rule of Law Framework: Questions & Answers

Why did the Commission launch a dialogue on 13 January on the situation in Poland and the Rule of Law Framework?

The rule of law is one of the fundamental values upon which the European Union is founded. The Commission, beyond its task to ensure the respect of EU law, is also responsible, together with the European Parliament, the Member States and the Council, for guaranteeing the fundamental values of the Union. Recent events in Poland, in particular the political and legal dispute concerning the composition of the Constitutional Tribunal, and the non-publication of judgments rendered by the Constitutional Tribunal, have given rise to concerns regarding the respect of the rule of law.

Following a debate in the College of Commissioners on 13 January about recent developments in Poland, the Commission launched a dialogue and requested information on the situation concerning the Constitutional Tribunal and on the changes in the law on the Public Service Broadcasters. The first debate on these developments in Poland, followed a presentation of the matter by First Vice-President Frans Timmermans (responsible for the Rule of Law Framework), as well as Commissioner Oettinger (responsible for media policy) and Commissioner Jourova (responsible for justice).

Why is the Commission adopting an Opinion on the Rule of Law in Poland?

Despite the constructive dialogue with the Polish authorities since 13 January, the crisis concerning the Constitutional Tribunal has not been resolved. The Commission has therefore deemed it necessary to formalise its assessment of the current situation with regards to the rule of law in Poland in the Opinion adopted today. On 18 May, the College of Commissioners discussed the situation based on an oral presentation by First Vice-President Timmermans regarding the state of play of the intensive dialogue with the Polish authorities, and examined a draft Rule of Law Opinion. The First Vice-President travelled to Poland on 24 May for discussions with the Polish Prime Minister and other relevant parties. However, despite this dialogue, the Polish Government has not yet taken the concrete steps needed to address the Commission's concerns. The Commission is adopting today's Opinion in order to help focus these ongoing positive discussions towards the concrete steps needed to resolve the systemic risk to the rule of law.

What are the developments in Poland that the College is concerned about?

1. The appointment of judges to the Constitutional Tribunal

Ahead of the general elections for the Sejm (lower chamber of the Polish Parliament) of 25 October 2015, on 8 October the outgoing legislature nominated five persons to be 'appointed' as judges by the President of the Republic. Three judges would take seats vacated during the mandate of the outgoing legislature while two would take seats vacated during that of the incoming legislature which commenced on 12 November.

On 19 November, the new legislature, through an accelerated procedure, amended the Law on the Constitutional Tribunal, introducing the possibility to annul the judicial nominations made by the previous legislature and to nominate five new judges. The amendment also shortened the terms of office of the President and Vice-President of the Tribunal from nine to three years, with the current terms coming to an automatic end within three months of the amendment's adoption. On 25 November the new legislature annulled the five nominations by the previous legislature and on 2 December nominated five new judges.

The Constitutional Tribunal was asked to rule on the decisions of both the previous legislature and the incoming legislature. The Tribunal delivered two judgements, on 3 and 9 December 2015.

On 3 December, the Court ruled that the previous legislature was entitled to nominate three judges for seats vacated during its mandate, but was not entitled to make the two nominations for seats vacated during the term of the new legislature. The Constitutional Tribunal also clarified that the President was obliged to take the oath of the three validly elected judges without delay.

On 9 December, the Court ruled that the new legislature was not entitled to annul the nominations for the three appointments under the previous legislature, but that it was entitled to appoint the two judges whose mandate began under the incoming legislature. The Constitutional Tribunal also declared invalid the shortening of the terms of office of the current President and Vice-President of the Tribunal.

The consequence of the judgements is that the President of the Republic is obliged to "appoint" (i.e. take the oath of) the three judges nominated by the previous legislature. However, the President of the Republic has in the meantime taken the oath of all five judges nominated by the new legislature. The judgments of the Constitutional Tribunal have thus not been implemented, raising concerns in regard of the rule of law, and the correct composition of the Tribunal remains disputed between the institutions of the State.

2. The functioning of the Constitutional Tribunal

On 22 December 2015, following an accelerated procedure, a law amending the law on the Constitutional Tribunal, which concerns the functioning of the Tribunal as well as the independence of its judges, was passed by the Polish Parliament. In a letter of 23 December 2015 to the Polish Government, the Commission asked to be informed about the constitutional situation in Poland. On 23 December 2015 the Polish Government asked for an opinion of the Venice Commission on the Law of 22 December 2015. However, the Polish Parliament did not await this opinion before taking further steps, and the Law was published in the Official Journal and entered into force on 28 December 2015.

On 9 March 2016, the Constitutional Tribunal ruled that the Law of 22 December 2015 is unconstitutional. That judgment has so far not been published in the Official Journal. On 11 March, the Venice Commission issued an opinion in which it found the amendments of 22 December to be incompatible with the rule of law. Following the judgment of 9 March 2016, the Constitutional Tribunal started again adjudicating cases. The Polish Government did not participate in these proceedings and the judgments rendered by the Constitutional Tribunal since 9 March 2016 have so far not been published by the Government in the Official Journal.

The refusal to publish the judgment of 9 March creates a level of uncertainty which will adversely affect not only the present judgment, but all future judgments of the Tribunal. Since these judgments will, following the judgment of 9 March, be rendered in accordance with the rules applicable before 22 December 2015, the risk of a continuous controversy about every future judgment will undermine the proper functioning of constitutional justice in Poland. This risk has already materialised as the Tribunal has to date rendered nine rulings since its ruling of 9 March 2016, and none of these rulings have been published in the Official Journal.

3. Effectiveness of constitutional review of new legislation (media law and other laws)

A number of sensitive new legislative acts have been adopted by the Polish Parliament, such as a new media law, and others are in preparation. In letters of 1 February 2016 and 3 March 2016, the Commission asked the Polish government about the state of play and content of a number of legislative reforms, but so far this information has not been provided.

The Commission considers it necessary that the Constitutional Tribunal is able to fully ensure an effective constitutional review of legislative acts.

What has the Commission done so far to address this issue?

Under the current Commission, First Vice-President Timmermans has been entrusted by President Juncker with the responsibility for the EU's Rule of Law Mechanism (see below) and with upholding the respect for the rule of law. The Commission's intention is to clarify the facts, in consultation with the Polish Government.

In light of the current situation regarding the Constitutional Tribunal, First Vice-President Timmermans wrote to the Polish Government on 23 December 2015 to request further information about the state of play. The letter requests that the Polish Government explain the measures they envisage to take with respect to the different Constitutional Tribunal judgements.

In his letter, the First Vice-President also recommended that the Polish Government consult the Venice Commission before enacting the proposed changes to the Law on the Constitutional Tribunal. The Polish Government requested a legal assessment from the Venice Commission on 23 December, but has proceeded with the conclusion of the legislative process before receiving the Venice Commission's opinion.

The Commission wrote to the Polish Government on 30 December 2015 to seek additional information about the proposed reforms to the governance of Poland's Public State Broadcasters. First Vice-President Timmermans asked the Polish Government how relevant EU law and the need to promote media pluralism were taken into account in the preparation of the new "small media law".

On 7 January 2016, the Commission received a response from Poland on the letter on the media law denying any adverse impact on media pluralism. On 11 January, the Commission received a response from Poland on the Constitutional Tribunal reform.

On 13 January 2016, the College of Commissioners held a first orientation debate in order to assess the situation in Poland under the Rule of Law Framework adopted in March 2014.

On 19 January, the Commission took part in a European Parliament Plenary debate on the situation in Poland with Polish Prime Minister Beata Szydło. The Commission explained its concerns and stressed that its analysis in the dialogue with Poland under the rule of law framework would be objective, non-partisan and evidence-based.

First Vice-President Timmermans was in Warsaw on 5 April and on 24 May for exchanges with his Polish counterparts on how to resolve the situation. Extensive exchanges have taken place between the Commission and the Polish Government in meetings at various levels. However, despite these exchanges, it has not yet been possible to find a solution to the issues identified by the Commission. Further meetings have taken place between the College meetings of 18 May and 1 June, but have not resulted in significant and concrete progress on the matter.

What is the Rule of Law Framework?

On 11 March 2014, the European Commission adopted a new Framework for addressing systemic threats to the Rule of Law in any of the EU's 28 Member States. The Framework establishes a tool allowing the Commission to enter into a dialogue with the Member State concerned to prevent the escalation of systemic threats to the rule of law.

The purpose of the Framework is to enable the Commission to find a solution with the Member State concerned in order to prevent the emergence of a systemic threat to the rule of law that could develop into a "clear risk of a serious breach" which would potentially trigger the use of the 'Article 7 Procedure'. Where there are clear indications of a systemic threat to the rule of law in a Member State, the Commission can launch a 'pre-Article 7 Procedure' by initiating a dialogue with that Member State through the Rule of Law Framework.

The Rule of Law Framework makes transparent how the Commission exercises its role under the Treaties, and aims at reducing the need for recourse to the Article 7 Procedure.

The Rule of Law Framework has three stages (see also graphic in Annex 1):

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  Commission assessment: The Commission will collect and examine all the relevant information and assess whether there are clear indications of a systemic threat to the rule of law. If, on this evidence, the Commission believes that there is a systemic threat to the rule of law, it will initiate a dialogue with the Member State concerned, by sending a "Rule of Law Opinion", substantiating its concerns.
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  Commission Recommendation: In a second stage, if the matter has not been satisfactorily resolved, the Commission can issue a "Rule of Law Recommendation" addressed to the Member State. In this case, the Commission would recommend that the Member State solves the problems identified within a fixed time limit, and inform the Commission of the steps taken to that effect. The Commission will make public its recommendation.
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  Follow-up to the Commission Recommendation: In a third stage, the Commission will monitor the follow-up given by the Member State to the recommendation. If there is no satisfactory follow-up within the time limit set, the Commission, the European Parliament or a group of 10 Member States could resort to the 'Article 7 Procedure'.

The entire process is based on a continuous dialogue between the Commission and the Member State concerned. The Commission will keep the European Parliament and Council regularly and closely informed.

At which stage are we under the Rule of Law Framework?

The adoption of the Rule of Law Opinion is part of the first stage of the procedure. The Polish authorities have now been invited to submit their observations. After examining this reply, or if no observations are submitted, the Commission may issue a Rule of Law Recommendation. This would mean that we would enter the second stage under the Rule of Law Framework. There is no specific deadline for the Commission to issue a Rule of Law Recommendation.

What is the Article 7 Procedure?

The Procedure foreseen under Article 7 of the Treaty on European Union (TEU) aims at ensuring that all EU Member States respect the common values of the EU, including the Rule of Law. It foresees two legal possibilities in such a situation: a preventive mechanism in case of a "clear risk of a serious breach of the [Union's] values" (Article 7(1) TEU) and a sanctioning mechanism in the case of "the existence of a serious and persistent breach" of the Union's value, including the Rule of Law (Article 7(2) and Article 7(3) TEU). Article 7 TEU has so far not been used.

The preventive mechanism allows the Council to give the EU Member State concerned a warning before a serious breach has actually materialised. The sanctioning mechanism allows the Council to act if a serious and persistent breach is deemed to exist. This may include the suspension of certain rights deriving from the application of the treaties to the EU country in question, including the voting rights of that country in the Council. In such a case the ’serious breach’ must have persisted for some time.

The Article 7 Procedure can be triggered by one third of the Member States, by the European Parliament (in case of the preventive mechanism of Article 7(1) TEU) or by the European Commission.

To determine that there is a clear risk of a serious breach of the rule of law, the Council, after obtaining the consent of the European Parliament, must act with a decision of 4/5 of its members, and must reach the same threshold if it wishes to address recommendations to the Member State concerned. The Council must hear the Member States concerned before adopting such a decision.

To determine the existence of a serious and persistent breach of the rule of law, the European Council must act by unanimity, after obtaining the consent of the European Parliament. The Member State concerned must first be invited to offer its observations.

To sanction a Member State for a serious and persistent breach of the rule of law, the Council must act by qualified majority. To revoke or amend these sanctions the Council must also act by qualified majority.

In accordance with Article 354 TFEU, the Member of the European Council or the Council representing the Member State in question shall not take part in the vote, and the Member State concerned shall not be counted in the calculation of the majorities for these determinations.

Has the Article 7 Procedure ever been used?

Since 2009, the European Union has been confronted on several occasions with events in some EU countries, which revealed specific rule of law problems. The Commission has addressed these events by exerting political pressure, as well as by launching infringement proceedings in case of violations of EU law. The preventive and sanctioning mechanisms of Article 7 have so far not been resorted to.

Annex I

For further information:

IP/16/2015

MEMO/16/2017

Press contacts:

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  Mina ANDREEVA (+32 2 299 13 82)
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  Tim McPHIE (+ 32 2 295 86 02)

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