On Wednesday 29 April, the European Commission decided to initiate a new infringement proceeding against Warsaw because of its reform of the judicial system, which runs counter to the principles of the European Union's rule of law (see EUROPE 12476/17). At the end of the College of Commissioners' meeting, the Vice-President, Věra Jourová, announced that the law involved on this occasion is the ‘muzzle’ law passed at the beginning of the year, which broadens the framework of disciplinary measures against the judges.
The Commissioner for Values and Transparency explained that, while the Commission fully supports Member States in their battle against the Covid-19 pandemic, “we cannot compromise or lock down our fundamental values”. Jourová added that “the virus must not kill democracy”; her work on respect for the rule of law in the EU is continuing during the health crisis.
The Vice-President visited Poland in January to discuss the law with the Polish political authorities and ask them not to pass it (see EUROPE 12411/14). The infringement proceeding “can’t therefore come as a surprise”, she said.
Member States that are held to account over concerns regarding the rule of law have traditionally been giving a one-month deadline to comply. The two-month deadline granted to Warsaw is a result of the exceptional nature of the health crisis.
In its argument, the Commission takes the view that the new law undermines the independence of the judiciary and judges in Poland with regard to political authority and is incompatible with the EU’s rule of law.
Polish law prevents the country's courts from directly applying certain provisions of EU law protecting judicial independence and from referring preliminary questions on these matters to the Court of Justice.
The broadening of the concept of disciplinary offences means that the number of cases where the content of judicial decisions may be qualified as a disciplinary offence is increasing. “As a result, the disciplinary system may be used as a system of political control with regard to the content of judicial decisions”, says the Commission.
The law also grants the new Extraordinary Control and Public Affairs Chamber of the Supreme Court exclusive jurisdiction to rule on matters relating to judicial independence. This will prevent Polish courts from fulfilling their obligation to apply EU law or to request preliminary rulings from the Court of Justice of the European Union.
Other provisions require judges to disclose specific information about their non-work-related activities.
Concern about holding the presidential election. Jourová also spoke about the Polish presidential election, scheduled for 10 May. She reiterated the Commission's concern that the principle of free and transparent elections might not be fully respected.
“If I were a Polish citizen, I would have a lot of questions about open access” to voting and campaigning, she said. However, she believes that it is up to the government to ensure that these conditions are met. (Original version in French by Solenn Paulic)