The Commission decided before Christmas to launch an infringement procedure against Poland because of serious concerns with respect to the Polish Constitutional Tribunal and its recent case law.
Infringement procedures may be launched by the Commission if an EU member state fails to communicate measures that fully transpose the provisions of directives or does not rectify the suspected violation of EU law. The procedure follows a number of steps laid out in the EU treaties.
In this case the Commission launched the first step by sending a letter of formal notice requesting further information. Poland will have two months to reply to the letter.
In fact, the Commission’s concerns are much older. It has been claiming for some years that there is a clear risk of a serious breach of the rule of law in Poland but has not been able to halt the enactment of new laws that threaten basic legal principles and the independence of the judiciary.
Already in December 2017, the Commission triggered the article 7(1) procedure in the EU treaty for the first time against Poland. A final decision however has not been taken yet. Article 7 on the possibility of suspending certain rights of a member state is considered the last resort to resolve a crisis.
The latest development started last August when Poland replied to the Commission about a ruling of the European Court of Justice. According to the ruling, the new Polish Disciplinary Chamber is incompatible with EU law since it might impose sanctions against judges. Furthermore, in its reply to the Commission, Poland challenged the primacy of EU law above national law.
The Commission started to analyse the Polish reply but, in the meantime, decided in September to request the European Court of Justice to impose penalties on Poland to ensure compliance with its rulings concerning judicial independence in the country.
The dispute with the Commission escalated in October when he Polish Constitutional Tribunal ruled that some articles in the EU treaty might be inconsistent with the Polish constitution if interpreted in a certain way.
Breach of EU treaty
In its decision last week (22 December), the Commission takes a strong position against Poland. It considers that the rulings of the Constitutional Tribunal are in breach of the general principles of autonomy, primacy, effectiveness and uniform application of Union law and the binding effect of rulings of the Court of Justice of the EU.
In particular, in its July ruling, the Constitutional Tribunal denied the binding effect of any interim measure orders of the Court of Justice issued under Article 279 TFEU to guarantee the effective judicial review by an independent and impartial tribunal established by law.
In its October ruling, the Constitutional Tribunal disregarded its obligations under EU law by considering unconstitutional - and thus not having effects in the Polish legal order - the Court of Justice's interpretation of Article 19(1) of the Treaty on the European Union (TEU) according to which a national court may called upon to review the legality of the procedure for appointing a judge.
Furthermore, the Commission considers that these rulings are in breach of the article, which guarantees the right to effective judicial protection, by giving it an unduly restrictive interpretation. Thereby it deprives individuals before Polish courts from the full guarantees set out in that provision.
Finally, the Commission has serious doubts on the independence and impartiality of the Constitutional Tribunal itself and considers that it no longer meets the requirements of a tribunal previously established by law, as required by Article 19(1) TEU.
The rule of law is one of the fundamental values of the EU and is enshrined in Article 2 TEU. It is also essential for the functioning of the EU as a whole, for example, with regard to the Internal Market, cooperation in the area of Justice and Home Affairs, and to ensure that national judges who are also 'EU judges' can fulfil their role in the application of EU law and can properly interact with the Court of Justice of the European Union (CJEU).
The European Commission, together with other institutions and the Member States, is responsible under the Treaties for guaranteeing the rule of law as a fundamental value of the Union and making sure that EU law, values and principles are respected.
M. Apelblat
The Brussels Times
