The attack on the Rule of Law in Poland and the EU at a crossroads

When, on 1 May 2004, Poland, together with other nine countries, joined the European Union, in the biggest accession process thus far, no one or very few would have contemplated the possibility that the gravest challenge to the Rule of Law in Europe would have originated from Poland itself.

In the last four years, Poland has seen a progressive but relentless undermining of its judicial independence. It began with the modification of the rules of appointment and the internal rules of the Constitutional Tribunal in 2015-2016, when “reforms” by Polish authorities brought its membership under their control. This has allowed control over a body that could have declared any of the reforms that followed against judicial independence unconstitutional.

Then, in 2017, Government and Parliament approved a set of laws that strongly weakened the justice system’s capacity to protect both its own and its judges’ independence.

One legislative amendment gave the Ministry of Justice the power to replace presidents and vice-presidents of courts throughout Poland within the first six months of the law entering into force. Using this power, the Minister dismissed and subsequently appointed at least 130 presidents and vice-presidents to common courts between September 2017 and February 2018.

A new law lowered the retirement age of Supreme Court justices from 70 to 65 years of age, triggering the effective dismissal of one third of the Supreme Court, and gave the President of the Republic the power to approve their applications to remain in service. It also instituted a new Disciplinary Chamber and Chamber of Extraordinary Control and Public Affairs within the Supreme Court.

Finally, the Act on the National Council of the Judiciary (NJC) was amended to cause the expiration of the terms for all its members and modify the appointment criteria to give the Parliament exclusive power of appointment of members of the NJC.

These “reforms” have been condemned by the ICJ, the UN Special Rapporteur on the independence of judges and lawyers, the Council of Europe’s Venice Commission and the European Commission.

The EU Court of Justice has already – directly and indirectly – considered the “reform” the Supreme Court, of the National Judicial Council and of the Disciplinary and Extraordinary Affairs Chambers of the Supreme Court, as contrary to EU law, in particular, to the principle of effective judicial protection in article 19.1 of the Treaty of European Union. The dismissal of members of the National Judicial Council is currently under consideration by the European Court of Human Rights.

However, these developments have not discouraged the Law and Justice (PiS) Government, who, after having won the last 2019 elections, has recently proposed legislation that will allow the discipline of judges for applying EU and international standards on judicial independence, if such application would undermine the reputation of Polish institutions.

The draft law was introduced after the Supreme Court ruled that its Disciplinary Chamber was not an independent court, because its judges were appointed by the National Judicial Council that, after a constitutional reform by the ruling PiS, is composed only of members elected by Parliament and Government, in breach of the international standard on judicial governance. The decision by the Supreme Court was implementing a judgment of the EU Court of Justice that set out the standards under EU law to consider a court as independent.

The Government and Parliament’s reaction raises fundamental challenges for the European Union, since its whole supranational legal system is built on the duty of all judges and public officers to directly apply EU law. The position of the PiS administration defies the very legal order that came out of the Costa judgment decades ago.

The relentless attacks of the Polish authorities are also an open defiance of international standards of judicial independence such as, the Basic UN Principles on the Independence of the Judiciary and the Council of Europe’s rules on judicial independence and self-governance.

The actions of the European Commissions, the rulings of the EU Court of Justice and the defiant reactions of the Polish Government are leading to a major conflict that will define the core values of the EU.

Article 2 of the TEU states that the Union is based on the Rule of Law and human rights. The European struggle for the independence of the Polish judiciary will prove whether that is really the case.

Massimo Frigo is an international and comparative law expert with particular focus on migration, counter-terrorism, criminal justice, accountability and access to effective remedies and reparations, and the independence of the judiciary and legal profession. Massimo joined the International Commission of Jurists in 2007 in the Global Security and Rule of Law Programme, the Business and Human Rights programme and Legal and Policy Office. He has been for many years the editor of the ICJ E-Bulletin on Counter-Terrorism and Human Rights. Prior to joining the ICJ, he assisted in the research of the International Council on Human Rights Policy. Massimo holds an LLM of the University of London and a Law Degree of the University of Trento. Twitter: @maxfrigo