The rule of law in Poland will again be at the centre of discussions in the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) on Monday 25 May, when a specific draft report, drawn up by its chair, Spain's Juan Fernando López Aguilar (S&D), will be presented.
The interim report calls on the Council of the EU to broaden the scope of its analysis in the procedure known as Article 7 and to finally implement the first phase of the Rule of Law Mechanism, which was activated at the end of 2017.
Indeed, the draft report recommends that the EU Council not only reinforce its work by including the latest developments, but also clearly establish the existence of a serious risk of violation of European principles by making recommendations to the country.
This should be done through a vote, as stipulated in Article 7 (1), even if the Rapporteur does not specifically mention a vote.
The mechanism initially took the form of hearings and dialogues with Warsaw, but has still not resulted in an EU Council vote to establish this risk of violation. This step was once envisaged by Commission Vice-President Frans Timmermans, responsible at that time for the rule of law. After activating the Mechanism at the end of 2017 and opening a dialogue phase, he had suggested, in the summer of 2018, that he could ask the EU Council to go further and proceed to a vote.
But this never materialised, partly because achieving a sufficient majority in the EU Council (4/5ths for this stage, unanimity for the sanctions phase) seemed uncertain. The Member States therefore remained at the hearings stage.
Today, after Poland's three hearings before the EU Council in 2018 and a series of infringement proceedings launched by the Commission against the PiS's judicial reforms, the Chair of LIBE believes that the situation has not improved; on the contrary, the draft report refers to a "serious" deterioration of the rule of law in the country since the opening of these proceedings.
The report details a whole series of areas where European principles have regressed, according to the rapporteur, such as the judicial system and the independence of judges, sexual and reproductive rights and, more recently, changes to the electoral code to justify maintaining the presidential election of 10 May, which was finally postponed.
This interim report on the Article 7 procedure therefore aims "to take stock of developments in the field of the rule of law, democracy and fundamental rights in Poland since 2015; to urge the Commission and the EU Council to broaden the scope of the procedure under Article 7(1) of the EU Treaty to include the clear risks of serious violations of democracy and fundamental rights, including the rights of persons belonging to minorities, and to call on the Polish authorities, the EU Council and the Commission to act swiftly within their respective competences to address this serious crisis of the rule of law", the report says.
In particular, the President of LIBE expressed "the passiveness of the Council in addressing the situation of the Rule of Law in Poland" and called on the Member States to resume the formal hearings as soon as possible.
The report will be presented on Monday together with the President of the European Association of Judges, José Igreja Matos, and a representative of the Polish judges' association, Joanna Hetnarowicz-Sikora.
This debate comes at a time when the EU Court of Justice has recently ordered the Warsaw authorities to suspend the new disciplinary regime for judges (see EUROPE 12464/27).
Judges in trouble
However, this does not make the situation of Polish judges any more secure. According to Polish media reports, judges who recently signed a letter to the OSCE requesting monitoring of the 10 May presidential election (see EUROPE 12478/15) are now reportedly under disciplinary proceedings, including by a local ombudsman from Piotrków Trybunalski.
According to the media, summonses were sent to these judges to explain this approach, because, according to the local justice system, the letter addressed to the director of the OSCE was "unconstitutional".
Link to the draft report: https://bit.ly/2XgX7hM (Original version in French by Solenn Paulic)