It is a hearing that will probably not change the course of things or the likelihood of the Commission taking Poland to the European Court of Justice on Wednesday 19 September because of the country's legislation on its Supreme Court.
For the second time, the Polish authorities were indeed invited, on Tuesday 18 September, to explain to the EU General Affairs Council the justification, objectives and implementation of the reforms to country's judicial system – reforms that resulted in the opening of a so-called Article 7 procedure at the end of 2017. However, Poland's Minister for European Affairs Konrad Szymanski did not seemingly manage to convince his colleagues to stop this Article 7 procedure.
According to European Commission Vice-President Frans Timmermans, who spoke at the end of this hearing, "the situation has not improved" (since 26 June) and "the concerns have increased". Warsaw's response to the reasoned opinion of 14 August does not offer "any opening" on the concerns that have been raised. Timmermans also said he hoped the Polish government might quickly be able to say if it will apply a possible ruling of the Court of Justice, notably on the legislation on the Supreme Court. On Wednesday 19, the College of Commissioners is, unsurprisingly, expected to decide to take Poland to the Court of Justice over this legislation that entered into force in early July.
On Tuesday 18, a source said that between 12 and 13 member states spoke out on the issue. Italy and Hungary, which could soon be the subject of a similar procedure with the vote of the European Parliament on 13 September (the Council furthermore formally received the Parliament's request on Tuesday 18 to open this procedure) (see EUROPE 12094), did not speak, but the countries of the south were the most outspoken in defending the principles of the rule of law. Luxembourg and the Netherlands also expressed similar opinions.
"The atmosphere was calm overall, but the positions seem to remain irreconcilable on the substance", this source said. While the Austrian Presidency of the EU Council did not want to say how it intended to proceed (it will reflect on this in the perspective of the next General Affairs Council), some delegations, like Germany, think these hearings can continue.
During this hearing, Germany's Minister of State for Europe Michael Roth said: "We have already discussed the rule of law on five occasions in this forum since the Commission triggered the Article 7 procedure last December" but "the dialogue has not enabled any substantial progress as regards our concerns".
"Since 3 July and the implementation of the new retirement system for judges at the Supreme Court, the situation is more urgent than ever."
On Tuesday, the Polish minister was expected to talk on themes covered by the recommendation of 20 December 2017 (see EUROPE 12077) – in other words, the Supreme Court, ordinary courts, extraordinary appeal procedures, and the situation of the Court presidents who are already concerned by the various reforms.
The new Polish legislation on the Supreme Court, which will probably be taken to the Court of Justice on Wednesday, lowers the age of retirement for Supreme Court judges from 70 to 65 – which involves 27 of the 72 judges working there. This measure has already been applied to the president of the Supreme Court, whose six-year mandate was terminated early, although the president symbolically continued working. (Original version in French by Solenn Paulic)