Rule of Law: Commission discusses latest developments and issues complementary Recommendation to Poland

Today, the European Commission discussed the state of play of the ongoing procedure concerning the Rule of Law in Poland and decided to issue a complementary Rule of Law Recommendation, taking into account the latest developments in Poland that have occurred since the Commission's Recommendation of 27 July 2016. The Commission considers that whereas some of the issues raised in its last Recommendation have been addressed, important issues remain unresolved, and new concerns have arisen in the meantime. The Commission also considers that the procedure which led to the appointment of a new President of the Tribunal raised serious concerns as regards the rule of law. The Commission believes that there continues to be a systemic threat to the rule of law in Poland, which needs to be addressed as a matter of urgency. In its complementary Rule of Law Recommendation, the European Commission sets out in detail the remaining as well as its new concerns and invites the Polish Government to solve the problems identified as a matter of urgency. On the basis of the Recommendation, the Commission remains ready to pursue a constructive dialogue with the Polish Government

First Vice-President Timmermans said: "The Commission has decided to send additional recommendations to the Polish government because new problems have arisen relating to the rule of law in Poland. The independence of the judiciary is of paramount importance to the rule of law. The Commission will not drop this matter and will continue to look for solutions in dialogue with Polish authorities without prejudice to other steps we might have to take if this dialogue continues to remain without results."

After a discussion in the college and due to recent developments, the College approved the Recommendation in principle and empowered the First Vice President to update and adopt the Recommendation in the light of the appointment of a new Constitutional Tribunal President on 21 December. This Recommendation complements the Recommendation of 27 July 2016, taking into account the latest developments in Poland.

The Commission today recommends in particular that Poland:

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  Follows up on actions already requested in the 27 July Rule of Recommendation

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  to fully implement the judgments of the Constitutional Tribunal of 3 and 9 December 2015 which requires that the three judges lawfully nominated in October 2015 can take up their function;
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  to publish and fully implement all the judgments of the Constitutional Tribunal, including those of 9 March and 11 August 2016 concerning the Law on the Constitutional Tribunal;
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  to ensure that any reform of the Law on the Constitutional Tribunal respects the judgments of the Constitutional Tribunal, takes the Opinion of the Venice Commission i fully into account and ensures that the effectiveness of the Constitutional Tribunal as a guarantor of the Constitution is not undermined;
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  to refrain from actions and public statements which could undermine the legitimacy and efficiency of the Constitutional Tribunal.
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  In addition, ensures that the Constitutional Tribunal can as a matter of urgency effectively review the constitutionality of the Law on the status of judges, the Law on organisation and proceedings and the Implementing Law, and that the judgments concerned are published without delay and implemented fully;
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  Ensure that no appointment of the new President of the Constitutional Tribunal take place as long as the judgments by the Constitutional Tribunal on the constitutionality of the new laws have not been published and implemented fully, and as long as the three judges that were lawfully nominated in October 2015 by the 7th term of the Sejm have not taken up their judicial functions in the Tribunal;
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  Ensure that as long as a new President of the Constitutional Tribunal has not been lawfully appointed, he is replaced by the Vice-President of the Tribunal and not by an acting President, or by the person appointed as President of the Tribunal on 21 December 2016.

Finally, the Commission underlines that the loyal cooperation which is required amongst the different state institutions in rule of law related matters is essential in order to find a solution in the present situation.

Next Steps

The Commission invites the Polish Government to solve the problems identified in this Rule of Law Recommendation as a matter of urgency, within 2 months, and to inform the Commission of the steps taken to that effect. The Commission stands ready to pursue a constructive dialogue with the Polish Government on the basis of this Recommendation. If there is no satisfactory follow-up within the set time limit, the Commission has the discretion whether or not to resort to the procedure laid down in Article 7 TEU. Article 7 may also be activated by a reasoned proposal of one third of the Member States, the European Parliament or the Commission.

The Commission also recalls that Recommendations adopted under the Rule of Law Framework do not prevent the mechanisms set out in Article 7 TEU being activated directly, should a sudden deterioration in a Member State require a stronger reaction from the EU.

Background

The rule of law is one of the common values upon which the European Union is founded. It is enshrined in Article 2 of the Treaty on European Union. The European Commission, together with the European Parliament and the Council, is responsible under the Treaties for guaranteeing the respect of the rule of law as a fundamental value of our Union and making sure that EU law, values and principles are respected.

Recent events in Poland concerning in particular the Constitutional Court have led the European Commission to open a dialogue with the Polish Government and to adopt a Rule of Law Opinion and a Recommendation in order to ensure the full respect of the rule of law. The Commission considers it necessary that Poland's Constitutional Tribunal is able to fully carry out its responsibilities under the Constitution, and in particular to ensure an effective constitutional review of legislative acts.

The Rule of Law Framework - introduced on 11 March 2014 - has three stages (see also graphic in Annex 1). 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.

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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 its "Rule of Law Opinion", substantiating its concerns. This Opinion serves as a warning to the Member State, and gives the Member State concerned the possibility to respond.
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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 informs the Commission of the steps taken to that effect. The Commission will make its recommendation public.
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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 set time limit, the Commission has the discretion whether or not to resort to the procedure laid down in Article 7 TEU. This procedure can also be triggered by a reasoned proposal by one third of the Member States, by the European Parliament.

Annex I - Rule of Law Framework

Annex II - Article 7 Treaty on European Union

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  On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

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  The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.
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  Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

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  The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.
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  The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.

For More Information

Commission Recommendation regarding the Rule of Law in Poland

MEMO/16/2644

MEMO/16/4479

IP/16/4476