A week after announcing them, the First Vice-President of the European Commission, Frans Timmermans, on Wednesday 26 July made good on his threats, issuing a new rule of law recommendation to Warsaw calling upon it to renounce any measure deemed to run counter to European criteria, on pain of seeing the so-called article 7 procedure triggered.
The Commission has given the Polish government one month to comply with both its international and its European obligations, the European official explained. The institution furthermore stresses that it stands ready to activate the first phase of article 7 before the month deadline is over, should the government enact any law challenged by the Commission.
The Commission also announced that it would launch infringement proceedings over the law on common law courts as soon as this is officially published. Here, the Commission is challenging discrimination on the grounds of sex, with different early retirement ages for female judges (60) and their male counterparts (65). This law has also raised concerns as the justice minister will have powers to extend the mandate of judges who have reached retirement age and dismiss or appoint court presidents.
Last week, the College announced that it was gravely concerned by four legislative acts recently proposed in Poland. "We have finalised a full legal analysis, which confirms that the four laws adopted by the Polish parliament would have a serious negative impact on the independence of the Polish legal system and would increase the systemic threat to the rule of law", Timmermans explained.
"Although we must recognise and welcome the fact that President Dudo has announced his decision to veto two of the four laws, the fact that two laws have been signed and that work will continue on the two others means that we must clearly set out our concerns in a further recommendation today", he added.
The recommendation concerns the provisions regarding the Supreme Court and the National Court Register (vetoed by the President of the Republic on 24 July), the organisation of common law jurisdictions (law signed off on 25 July by the President of the Republic and pending publication and entry into force) and the School of Judiciary and Public Prosecution (law published and in force since 13 July).
In their current form, these laws will structurally undermine the independence of the judiciary in Poland and will have an immediate and highly significant negative impact on its independent functioning. In particular, the dismissal of Supreme Court judges will seriously increase the systemic threat to the rule of law.
The Commission therefore calls on the Polish authorities not to take any dismissal or forced retirement measure of Supreme Court judges. If they do, the Commission is prepared to trigger the mechanism set out in article 7, paragraph 1 of the Treaty on European Union immediately, the Commission warns.
Once a four-fifths majority has been reached, this first phase of article 7 would lead to the observation that there is a clear risk of serious breach by a member state. However, unanimity is required in the second phase of this mechanism and Viktor Orban’s Hungary has warned that it will stand shoulder to shoulder with Poland, thereby making the outcome of the procedure uncertain.
With regard to this, Timmermans yesterday denied rumours that the Commission was looking for ways to link the Hungarian and Polish cases together, to get around the Hungarian veto.
The Commission will now await the Polish government’s reactions. However, Timmermans justified the Commission’s decision on the grounds that all European citizens are entitled to an independent legal system, independent judges being a cornerstone of the construction of our states.
In Warsaw, the government has reaffirmed that it would not bow to “any blackmail from the EU over its legal reforms”, AFP reports, “in particular blackmail that is not based on facts” (our translation). (Original version in French by Solenn Paulic)