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Poland's Constitutional Breakdown$

Wojciech Sadurski

Print publication date: 2019

Print ISBN-13: 9780198840503

Published to Oxford Scholarship Online: July 2019

DOI: 10.1093/oso/9780198840503.001.0001

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Europe to the Rescue

Europe to the Rescue

Chapter:
(p.192) 8 Europe to the Rescue
Source:
Poland's Constitutional Breakdown
Author(s):

Wojciech Sadurski

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198840503.003.0008

Abstract and Keywords

The Council of Europe (CoE) and the European Union (EU) possess significant legal instruments to affect and reverse anti-democratic changes in Poland, and some of these instruments have already been used, with varying degrees of success. The chapter opens with the CoE’s, and in particular the Venice Commission and the European Court of Human Rights’ contributions to policing Polish assaults on the rule of law. It then turns to the EU, and reflects upon the question as to whether the EU—with its assortment of different measures of ‘naming and shaming’ (Art. 7.1 Treaty on European Union (TEU)), sanctions (Arts 7.2 and 7.3 TEU), and legal infringement actions, as well as its newly crafted ‘rule of law framework’ (also known as the pre-Article 7 procedure)—has been so far, and can be in the near future, effective in cabining and reversing anti-democratic trends in one of its largest member states. The conclusion is affirmative: the EU has an important, even if limited, role to play in assisting Polish defenders of the rule of law and democracy.

Keywords:   Council of Europe, Venice Commission, European Court of Human Rights, European Commission, Court of Justice of the EU, infringement actions, Rule of law framework, Article 7 procedure, preliminary reference, Copenhagen Commission

No country is an island, to paraphrase John Donne. Well, some actually are, but definitely not Poland, either literally or metaphorically speaking. Poland has particularly strong linkages with the outside world, both bilaterally and through its active participation in the United Nations, North Atlantic Treaty Organization (NATO), Council of Europe (CoE), European Union (EU), etc. And these linkages have played a very important role in the unhappy developments described in this book, both in terms of how the embedding of Poland in the international order affected the dynamic of domestic development, and also how the growth of Polish anti-constitutional populism in power influenced responses by international and supranational organizations. The EU is, of course, of particular significance here. It is symbolic, and also ironic, that on the day when the European Commission (EC) formally announced that it would open an Article 7 procedure against Poland (20 December 2017), President Andrzej Duda signed two laws figuring at the top of the list of reasons for initiating the Article 7 procedure in the first place.

The role of the ‘the European factor’ in affecting and constraining member states that show signs of illiberal, anti-democratic or rule-of-law constraining changes has lately been the subject of lively debate, both in political fora and in EU-related scholarship, and some of this debate will be reflected in this chapter. Poland and Hungary are two of the most worrying cases that demonstrate the EU’s need to grapple with developments that had admittedly not been considered by the founders of European integration in its subsequent iterations, from the European Economic Community (EEC) to the EU. Rather, it was taken for granted that the EEC or the EU would be a grouping of like-minded states with a satisfactory record on human rights, democracy, and the rule of law. As the EU enlarged in successive waves, these constitutional minimum conditions were taken as non-negotiable, and were codified in the Copenhagen criteria and more detailed rules and yardsticks of political conditionality. On the other hand, acceding states perceived accession as, among other things (but for some, most importantly) a guarantee that would solidify democracy and the rule of law against possible post-accession authoritarian and populist temptations within these new member states. Now came the reality check.

It is against this background that the EU factor (and more broadly, European factor, as it also importantly includes the CoE and its agencies) must be considered. In this chapter, I reflect on the question as to whether the EU—with its assortment (p.193) of different measures of ‘naming and shaming’ (Art. 7.1 Treaty on European Union (TEU)), sanctions (Arts 7.2 and 7.3 TEU) and legal infringement actions, as well as its newly crafted ‘rule of law framework’ (also known as the pre-Art. 7 procedure)—has been so far, and can be in the near future, effective in cabining and reversing anti-democratic trends in one of its largest member states.1 But first, I will briefly discuss that other pan-European structure, the CoE, including the Venice Commission (VC) and the European Court of Human Rights’ (ECtHR’s) contributions to policing Polish assaults on the rule of law, and identifying a way out.

The chapter, like the other parts of this book, is partly descriptive, partly analytic, and partly normative. As far as this last dimension is concerned, I will argue that the EU must (both for practical and principled reasons) intervene more decisively in the case of Poland’s systemic and ongoing breach of TEU values proclaimed in Article 2—particularly those of democracy, the rule of law, and individual rights—by combining the use of three institutional devices available to the EU, as mentioned in the previous paragraph: infringement actions by the VC before the Court of Justice of the European Union (CJEU), the Article 7 ‘nuclear option’, and ‘rule of law framework’ procedure, seen as a possible preliminary stage of the Article 7 procedure. But the success of these measures cannot be a function of the EU alone, and largely hinges upon a synergy with other supranational organizations, and in particular the CoE entities, such as the VC and the ECtHR, in monitoring and criticizing the developments in Poland. Their role will be discussed first.

Poland in Venice

By far the most important contribution by a CoE institution was that done by the VC. In just two years (2016 and 2017), the VC produced no fewer than four lengthy Opinions regarding the Polish rule of law crisis, and in earlier chapters I have referred to all these Opinions, whenever relevant. Here, I wish to provide an overall picture, just to show how seriously the VC took its task. The four Opinions were on: (1) the statutory changes regarding the Constitutional Court (CT), including the Polish government’s refusal to publish CT judgments, (2) the statutory changes to the law on the police and related limitations on the right to privacy, (3) the new statute on the office of the public prosecutor, (4) the package of laws regarding the judiciary, namely the Supreme Court (SC), the National Council of the Judiciary (Krajowa Rada Sądownictwa (KRS)) and the common courts. As one can see, taken together these Opinions covered much of what was most problematic in the ‘reforms’ undertaken by the Law and Justice (Prawo i Sprawiedliwość (PiS)) party after its 2015 twin victories.

The first Opinion on the CT was written, strangely enough, at the invitation of the Polish government itself. It was a blunder by the minister for foreign affairs (who had hoped, naively, that by such a preventive action he would minimize the (p.194) political costs of the Opinion), for which his deputy-in-charge of legal affairs later lost his job. Before the Opinion was finalized, the government had submitted its own explanation regarding the situation on the CT at the end of 2015.2 On the presence of ‘quasi-judges’ on the CT, the government argued that the election of three new judges by the end of a previous parliamentary term was irregular because there was a constitutional custom that Parliament must not elect new judges whose term of office would begin in the last days of the parliamentary term. (No relevant precedent to justify such an opinion was produced. In fact, one may argue that the whole point of not making judicial terms correspond to parliamentary terms was to ensure that Parliament would have to live with potentially ‘hostile’ constitutional judges.) The government also strongly condemned CT judgment K 34/15 of 3 December 2015, which concerned the composition of the tribunal, and also criticized the CT judges who had participated, as experts, in discussions about reforms of the procedure before the CT since 2010.

The VC Opinion did not buy any of the government’s views.3 Beginning with the last point, the VC found nothing objectionable about the CT judges participating in discussions on the law concerning the CT itself, so long as they did not exceed their role as experts: ‘While it is not the function of a constitutional court and its members to participate in political debate, … it is a common feature of European constitutional culture that constitutional courts may comment on reform proposals, which concern the Court itself.’4 Having said that, the VC very critically scrutinized a number of proposed regulations regarding the CT, including the extraordinary requirement for a two-thirds majority for judgments invalidating a law: ‘Such a very strict requirement carries the risk of blocking the decision-making process of the Tribunal and of rendering the Constitutional Tribunal ineffective, making it impossible for the Tribunal to carry out its key task of ensuring the constitutionality of legislation.’5

As one can see, the VC very perceptively understood the real point of PiS reforms which, at a time when it still did not have a majority on the tribunal, were aimed mainly at paralysing its decision-making process. Going point by point, the first Opinion of the VC provided scathing views about virtually all of the new important proposals, including the sequence rule, which required the CT to consider cases strictly in the order of challenges submitted, which (with the backlog at the time) would basically immunize any new PiS laws from effective control. The VC also refuted the government’s claim about the alleged ‘constitutional custom’ whereby an outgoing parliamentary majority would not elect new judges,6 and queried the bizarre ‘principle of pluralism’ articulated by the government’s experts in a meeting with representatives of the VC in Warsaw, by responding:

This view of the Constitutional Tribunal with judges ‘belonging’ to one party and other judges ‘belonging’ to the other party seems to equate the Tribunal with another chamber of Parliament … The Venice Commission cannot subscribe (p.195) to such an approach and it has difficulty understanding the aim of establishing ‘pluralism’ in the Constitutional Tribunal if this just means appointing a sufficient number of one’s own ‘representatives’ to the Tribunal.7

In its conclusions, the VC warned against ‘crippling’ the CT’s effectiveness, which would adversely affect three basic principles of the CoE: democracy, human rights, and the rule of law.8

In addition, the VC criticized the government’s failure to publish CT judgments: publication, the Opinion urged, was ‘a precondition for finding a way out of this constitutional crisis’.9

The second Opinion of the VC concerned the law on the police (discussed in Chapter 6),10 which regulated various methods of secret surveillance employed by law enforcement and intelligence agencies. The main reason why the amendments attracted so much public attention and criticism was the power of such agencies to obtain information by monitoring the means of communication and other tools including computers, telephones, databases, emails, social networks etc. In its Opinion, the VC criticized, among other things, the overly broad range of metadata collection;11 the possibility of surveillance infringing lawyer-client privilege;12 the excessively long maximum period of surveillance allowed by the new law;13 and the weakness of judicial controls, complaints mechanisms, and oversight.14 In its conclusions, the VC formulated a number of amendments to be made, including strengthening the proportionality principle throughout various instruments covered by the new law, as well as making the oversight and judicial review of surveillance more effective.15 There is no need to add that the government has never even contemplated such amendments.

In December 2017, at the request of the Monitoring Committee of the Parliamentary Assembly of CoE (PACE), the VC produced its Opinion on the Public Prosecutor’s Office (prokuratura).16 The Opinion, at the outset, lamented the extremely fast-tracked procedure of adopting the law, and the absence of any meaningful consultations, thanks to the submission of the proposed law as a private-member bill, even though the government de facto prepared the law.17 When it came to substance, the VC strongly criticized the merger of the office of public prosecutor general (PG) with that of minister of justice (MJ): ‘None of the applicable European standards anticipate a situation in which the Public Prosecutor General is not only subordinated to the Minister of Justice, but the Public Prosecutor General is indeed the Minister of Justice.’18 As the Opinion shows, the problems arising out of this merger are ‘exasperated’ by the new law on common courts, according to which the powers of the MJ over court presidents are greatly enhanced.19 This, combined with the PG’s power to intervene in every specific case, creates a ‘risk of political manipulation by an active politician of individual cases’.20 The conclusions are absolutely devastating to the new law, which (p.196) ‘creates a potential for misuse and political manipulation of the prosecutorial service, which is unacceptable in a state governed by the rule of law’.21 None of the recommendations have been heeded, and all the dire predictions about the effects of the extreme politicization of the public prosecutor’s system have been vindicated in practice, as shown in Chapter 4.

The VC adopted its fourth Opinion in December 2017, and it concerned the law on ordinary courts (already signed into law by President Duda at this stage) and draft laws on the SC and the KRS, which at the time of the writing of the VC Opinion were both still in a state of rewriting, under Duda’s vetoes. Concerning the law on the KRS, the VC recommended abandoning the new mode of electing judicial members, and returning to the model of electing judges by their peers. Concerning the law on the SC, the VC criticized the establishment of two new chambers, and reserved special criticism for the idea that electoral issues would belong to the competences of one of the newly set up chambers, which were peopled exclusively by new judges. The power of the president of the Republic to decide on the fate of judges aged over sixty-five years old was also criticized. When it came to the new law on common courts, the VC criticized the enhanced powers of the MJ vis-à-vis those courts, and in particular the minister’s competence to decide whether to extend the service of judges beyond the newly lowered retirement age, and also his stronger powers over court presidents.22 Very perceptively, the VC concluded that the combination of the three laws in a judiciary package ‘amplifies the negative effect of each of them to the extent that it puts at serious risks the independence of all parts of the judiciary in Poland’.23

One good thing about all four Opinions by the VC in 2016–17 was that the it did not mince words, and depicted all the pathologies, risks, and dangers related to PiS’s legislative production in that period. The bad thing was that the VC was largely ineffective—if effectiveness is judged by actual changes and amendments introduced by the government as a result of VC advice and recommendations. But it was to be expected: right from the beginning, the government treated the VC as a hostile body, and its first step to invite the VC to produce its first Opinion on the CT was immediately treated by the government as a grave error. The VC became a target of PiS propaganda, joining the EC or international human rights organizations in a club of the enemies of Poland.

It does not follow, however, that the VC interventions had no positive effect. Quite to the contrary: they supplied valuable resources to the government’s critics, including the political opposition, media, non-governmental organizations (NGOs), the Ombudsman, academics, etc. The VC, which had been a virtually unknown body in Poland, became a familiar name to a very large number of people, and its visits to Warsaw were treated as front-page news stories. The four Opinions constitute a very important archive of what was wrong about PiS’s post-2015 assault on the rule of law.

(p.197) Poland in Strasbourg

The ECtHR has not had an occasion, so far, to pronounce on the constitutional crisis and assault on the rule of law in Poland, in contrast to the situation in Hungary in which it found a breach of the European Convention on Human Rights (ECHR) in the dismissal of the president of the SC,24 thus prefiguring the possibility of a similar judgment on the premature dismissals of Polish SC judges. But at least some of its cases originating from Poland have had an important political as well as legal meaning, in depicting the highly objectionable practices of PiS regarding the matters sensitive to the government.

One string of cases concerned the horrific treatment that Polish border guards gave to refugees from countries such as Chechnya and Syria (the matter is briefly described in Chapter 6). In these cases, complaints to the ECtHR were made by refugees who were not allowed into, or were immediately deported from, the territory of Poland, without having an effective opportunity to lodge applications for refugee status, in violation of Article 3 of the ECHR (prohibition of degrading and inhuman treatment), Article 34 (admissibility of individual applications to the ECtHR) and Article 4 of Protocol 4 (prohibition against the collective expulsion of aliens). Representative of the four cases concerning this matter25 is M.A. and Others v. Poland,26 lodged by a family of refugees from the Chechen war, depicting a truly disturbing story of a man who had been cruelly tortured back in Chechnya and, accompanied by his wife and children, was turned away several times from the border crossing in Terespol (at the border of Poland with Belarus), despite a Polish judge having made an order, as an interim measure, to allow the family to stay in Poland until their asylum requests were properly considered. In its questions communicated to the government, the European Court queried, among other things, whether ‘the denial to review the applicants’ motion for international protection’ was in breach of Article 3 ECHR,27 whether the applicants were expelled ‘as part of a collective measure’ in breach of Article 4 of Protocol 4,28 and whether there had been any ‘hindrance by the State … with the effective exercise of the applicants’ right of application’, in breach of Article 34 of the Convention.29 The facts summarized earlier by the ECtHR suggest that the answers to these questions are all affirmative, and that the judgment will find Poland in breach of the Convention. The case (as the other cases in this line of cases) is still pending, and at the time of writing, the government’s answer is still being awaited.

While the cases relating to the treatment of refugees raised relatively little reaction in Poland, both because the judgments have not been yet handed down and because of the general public’s overall insensitivity to the fate of refugees, the judgment in Strasbourg of 20 September 2018 produced a huge wave of reactions from both proponents and critics, as it directly touched an issue of great symbolic and political value to PiS, namely the aftermath of the Smolensk air crash (discussed in Chapter 7). In Solska and Rybicka v Poland,30 the First Section of the ECtHR (p.198) unanimously found Poland in breach of the Article 8 rights of the relatives of some victims who disagreed with the exhumation of dead bodies of those victims, as ordered by public prosecutors. The exhumation process was part of PiS’s paranoia-ridden policy, under which it has continuously maintained a conspiracy theory about the crash, and used it to mobilize its hard-core electorate in its hatred against political opponents. Some relatives—including the complainants in this case—strongly opposed the exhumations, maintaining that they were pointless and contribute to their mental anguish, but their objections were not recognized, and they found themselves with no means of seeking judicial review of the prosecutors’ decisions, which were clearly politically motivated.

But the judgment was also very important for reasons exceeding its directly relevant subject matter, specifically having to do with the extreme insensitivity of the actions of public prosecutors employed to carry on a partisan, political campaign, and also concerned, albeit indirectly, with issues regarding the condition of the rule of law in today’s Poland. One such matter arose with regard to the status of the CT as allegedly providing a domestic remedy, the exhaustion of which is a prerequisite for taking the matter to Strasbourg. Or so the government argued. The complainants, in turn, pointed to the unconstitutional staffing of the tribunal as a result of which it ‘could no longer be regarded as an effective and impartial judicial body able to fulfil its constitutional duties’.31 The ECtHR opted for a Solomonic solution. On the one hand, it said that in this concrete case, the CT procedure of constitutional complaint was not relevant because of the specificity of the exhumation issue: whatever the CT decided, it would not have stopped the exhumation proceedings. For this reason, there was no need to consider ‘the alleged lack of effectiveness and independence of the Constitutional Court’.32 On the other hand, the ECtHR itself left the door open to reconsider the status of the CT in some future case; it just ‘does not consider it necessary to examine’ this issue in the present case.33 In this way, the issue of the Polish CT’s disabling made its way to a judgment of the ECtHR for the first time.

But perhaps the most striking aspect of the judgment is that it was based on a categorical statement of illegality (a government action not carried out ‘in accordance with the law’) rather than being as a result of employing a proportionality analysis, which the ECtHR did not even embark upon. As one knows, in order to proceed to a proportionality analysis, the ECtHR must be first satisfied as to certain early stages of scrutiny, the failure with regard to which pre-empts the need for ‘proportionality’. One of these is scrutiny into whether the action was ‘in accordance with the law’. Failure under this test is much more invidious than failure under proportionality, on the conduct of which reasonable lawyers may disagree. The ECtHR foreclosed the road to conducting a proportionality test by categorically condemning Poland at an earlier stage. Polish prosecutorial practice based on the Polish code of criminal procedure was found to be lacking in ‘adequate legal protection against arbitrariness’,34 and failed ‘to ensure that the discretion left to the (p.199) executive is exercised in accordance with the law and without abuse of powers’.35 The ECtHR found that some prosecutorial decisions are subject to judicial review, but decisions on exhumations are not reviewable.36 This led the ECtHR to conclude that ‘Polish law did not provide sufficient safeguards against arbitrariness with regard to a prosecutorial decision ordering exhumation’.37 This was a harsh condemnation of the law, but also of the barbaric practice of Polish prosecutors under PiS rule.

In his analysis of the ECtHR’s impact upon the observance of the rule of law in the states of Central and Eastern Europe (CEE), Jernej Letnar Černič observed that the ECthR ‘has set out foundational de iure principles for the functioning of the rule of law and constitutional democracies in Central and Eastern Europe in a wide range of areas’.38 While the post-2015 constitutional breakdown in Poland has not yet registered as such in Strasbourg case law, it is just a matter of time before the issues, regarding for instance judicial independence and irrevocability, find their way to the ECtHR (or so one may foresee and hope).

The Constitutional and Democratic Meaning of Accession to the EU

One of the most important reasons that have led many politicians, activists, and commentators in Poland, as elsewhere in CEE, to strongly favour accession to the EU was the conviction that, once in the EU, the state would be more robustly democratic. The view that ‘[t]he enlargement and the integration into the European Union will provide a stimulus for strengthening the institutional order in the countries of Central and Eastern Europe’39 was accompanied by an understanding that ‘strengthening the institutions’ meant first and foremost democratization. The idea was sometimes presented metaphorically as a democratic straitjacket—a set of constraints on the political structure of the state that protects it against authoritarian and populist excesses. Accession, many observers hoped, would render democracy more resilient against crises and potential upheavals, cushioning democratic institutions against threats and challenges, against moral panic and the oppression of minorities. It was, of course, not the only factor that produced broad support for joining the EU within Polish society, but the so-called civilizational arguments, of which the argument for the protection of democracy formed an important part, also played a large role in convincing the people of the benefits of accession. The popular rhetoric of a return to Europe meant, in particular, the reassertion of membership in a community of nations that highly values democracy, human rights, and the rule of law.

This sentiment was underwritten by a sense of frustration with the state of democracy in Poland after the transition, combined with a high esteem for West European democracy (which somehow also applied to EU institutions). On the (p.200) eve of the 2014 accession, only 12 to 16 per cent of Poles declared that they trusted fundamental democratic institutions in their own country, and only 7 per cent believed that the national institutions functioned effectively. In contrast, over one-half of respondents believed that EU institutions worked well, even if the general level of knowledge of their work and structure was very low.40 This mix of distrust in the democracy in one’s own state with a quasi-mythical trust in Brussels created a favourable socio-psychological context for accepting the accession, with all its costs. It is against this background that one can evaluate the contribution to the consolidation of liberal-democratic rules and practices made by both the prospect of accession to the EU, and by the actual accession.

As to the former, political conditionality, based on the Copenhagen criteria and then concretized in the EC’s evaluation of Poland’s progress in adopting the acquis, as evidenced by annual reports since 1997, it actually helped consolidate democratic institutions and the absorption of norms conducive to the rule of law. While there is no consensus among students of the EU about the actual impact of conditionality, and the process has been much maligned by some scholars,41 my own study does not corroborate such a sceptical approach. In my previous book, I have suggested that, by and large, the process of political conditionality did make a difference, though one has to be careful not to exaggerate the independent contribution of the process, but rather see it in the context of a synergy between EU conditionality and the actions of the domestic actors (including their actions preceding the process of accession), and of the synchronization between the EU and other international entities, but also that it differed from one domain to another.42

When it comes to the post-accession impact of the EU upon a consolidation of democracy in Poland, evaluating the EU factor is a much more difficult task because the scrutiny of membership eligibility has been discontinued, in addition to the absence of the ultimate sanction in the form of the non-acceptance of a candidate state to the club. The pattern of incentives operating on a state is completely different in the pre- and post-accession periods, and the measures that the EU has at its disposal towards its existing members are different (and overall, much less effective) than towards its applicants. Hence, many scholars predicted that there would be a dramatic retreat from democratic standards in the region soon after the 2004–7 wave of accessions to the EU, and that the states who put on their best behaviour in the run-up to accession would degenerate into their bad old forms, as if there was some fatalism in the non-democratic norms displayed in Central Europe. In an article published in October 2007, Ivan Krastev announced: ‘The liberal era that began in Central Europe after 1989 has come to an end. Populism and illiberalism are tearing the region apart.’43 And in April 2008, The Economist magazine proclaimed the following sequence observable in CEE: ‘The pattern of intensive reform to qualify, followed by a let-up in the process once the membership [in the EU] is achieved, is too common to be happenstance.’44

(p.201) But to simply state that there was inevitable backsliding after the unusual mobilization in the run-up to accession is too offhand, especially regarding Poland. After all, it had taken over ten years for a populist turn in government to take place if one does not count the 2005–7 episode of PiS rule, which did not produce any deep institutional changes. Rather, a combination of institutional deterrents (in the form of Art. 7, to be discussed later in the chapter, section ‘Article 7: Adding Bite to a Bark’), ‘soft’ devices of control and monitoring (e.g. through the Fundamental Rights Agency), the norm-learning connected to the day-to-day participation in EU institutions, as well as financial incentives related to the financial transfers from the EU, combined into a complex mechanism favourable to domestic democracy in Poland. As a result, membership of the EU became a powerful strategic asset and a bargaining tool inside Polish politics. The scholars who studied this phenomenon (not only related to Poland, but more broadly regarding the new member states) observed a specific peer pressure ‘which means that political elites adjust their behaviour to avoid the embarrassment of being singled out as reform laggards in their interactions with their Western counterparts’.45

Alas, accession-based democratization had its limits, as 2015 has shown. Socialization of at least some elite within the democratic culture of the EU turned out to be skin-deep, and the internalization of democratic standards turned out quite shallow and propaganda-oriented. For a number of political actors in Poland, democratic rules and practices had been adopted for instrumental reasons (to help attain the desired EU membership) rather than for the sake of democracy itself. A general hypothesis by a student of democratization was confirmed: ‘An important drawback of an incentive-based approach to democratization is that democracy … may become devalued in the eyes of both elites and citizens because its tenets are adopted not as an end but as a means to an end’.46

In the face of post-2015 developments, the limits and insufficiencies of incentives and soft measures in preventing democratic backsliding have been painfully demonstrated. Poland (as, mutatis mutandis, Hungary before it) became a laboratory for experimenting with tougher measures to police anti-democratic and anti-rule-of-law developments in an EU member state.

The two polar extremes among those measures are infringement actions lodged by the commission with the European Court of Justice, and Article 7 actions. The former is feasible but relatively ineffective: one may argue that you need political measures to deal with political infractions, and the Article 258 TFEU infringement procedure is basically tailored to specific violations that can be made good for the parties concerned via legal remedies. There is a view among scholars, not necessarily a dominant one but nevertheless popular, that ‘the Commission is limited in its ability to prosecute member state infringements of vague legal principles’.47 In turn, the latter action, under Article 7, may be effective yet is not very feasible: the requirement of unanimity for sanctions under Article 7.3 renders its use virtually unthinkable.

(p.202) Hence, a number of in-between measures have been contemplated and occasionally used. Among the measures being contemplated is the idea of setting up a ‘Copenhagen Commission’ to apply the eponymous criteria to current member states,48 and Kim Lane Scheppele’s idea of ‘systemic infringement’ actions.49. The rule-of-law framework adopted in 2014 and activated by the Commission with respect to Poland in January 2016 is newly designed, and thought of as a pre-Article 7 procedure, but also as valuable in its own right.50 All these measures and proposals will be discussed later in this chapter, ‘Policing Member States: New Ideas’. As Dimitry Kochenov and Laurent Pech note, the adoption of this new procedure ‘showed that the Commission finally understood the serious, if not existential, threat posed by the solidification of authoritarian regimes within the EU’.51

Poland before the CJEU: A Call from Dublin

In the Preface to this book, I allude to the preliminary reference by the Irish High Court in the Celmer case, regarding a European Arrest Warrant (EAW)52 issued by Polish judicial authorities for the purposes of conducting a criminal prosecution. As the Irish Court found out, Mr Celmer was objecting to his surrender primarily on the ground that the legislative changes to the judiciary, the courts and the public prosecutor brought about within the last two to three years in Poland undermined the possibility of him having a fair trial. He also opposed his surrender on the basis of prison conditions in Poland, in particular, that his safety could not be guaranteed there.53

The High Court of Ireland examined in detail the various actions of the Commission taken under the rule of law framework, the Polish government’s statements as well as the most important Polish legislation on the substance and structure of the CT and judiciary branch.54 In its conclusion, the High Court observed ‘that the rule of law in Poland has been systematically damaged by the cumulative impact of all the legislative changes that have taken place over the last two years’. The court emphasized the comprehensiveness and inter-connectedness of Polish legislative changes, many of which, ‘when viewed in isolation, may not self-evidently appear to violate the rule of law’. The fact, however, that a particular change might be acceptable in another EU member state (such as Ireland) ‘is not conclusive or even necessarily relevant to whether the rule of law has been damaged in Poland’ because the constitutionality of those changes within Poland cannot be ascertained due to the actions taken towards the CT, and because they come within a concerted legislative package to politicize the judiciary and to take away its independence. The High Court concluded:

The totality of changes in Poland, especially as regards the constitutional role in safeguarding independence of the judiciary by the National Council for [sic] the (p.203) Judiciary, combined with the Polish government persisting with invalid appointments to the Constitutional Tribunal and refusing to publish certain judgments, also amounts to an undermining of the rule of law.55

The High Court of Ireland referred to the judgment in the Aranyosi and Căldăraru56 case, which also concerned a refusal to surrender a person within the EAW framework, and where the European Court of Justice held that if the executing judicial authority makes a finding of general or systemic deficiencies in the issuing member state, that authority must make an assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to a real risk of being subject to inhuman or degrading treatment in that member state. A two-step procedure must then be applied: first, a court must make a finding of systemic deficiencies and, second, seek all necessary supplementary information as to the protections for the individual concerned. Hence the uncertainty expressed by the Irish court: if the common value of the rule of law, as enshrined in Article 2, has been breached by the member state issuing an EAW, which by its nature constitutes a fundamental defect in the system of justice, the second requirement of Aranyosi still applies. If the deficiencies of the system are systemic, then ‘it appears unrealistic to require a requested person to go further and demonstrate how, in his individual case, these defects will affect his trial’.57 And further:

A problem with adopting that approach [of Aranyosi] in the present case is that the deficiencies identified are to the edifices of a democracy governed by the rule of law. In those circumstances, it is difficult to see how individual guarantees can be given by the issuing judicial authority as to fair trial when it is the system of justice itself that is no longer operating under the rule of law58.

The Irish court’s actions provoked strong reactions, both in Poland and elsewhere in Europe. Polish constitutional scholar Tomasz Koncewicz observed, approvingly, that

the Irish judge acting in her capacity as the EU judge of general jurisdiction, has elevated the discourse about the EU rule of law crisis to another level. We are now moving away from the political arena marred by cynicism and rotten compromises to the courtroom with its own logic and principles.59

Some commentators went a step further in linking the preliminary reference to the Article 7 procedure, and thought that the question in Celmer should best be framed in rule-of-law terms, and therefore the Irish court ‘should … freeze the case awaiting a resolution of the matter from political actors in accordance with the procedure provided for in Article 7 TEU or the [democracy, the rule of law (p.204) and fundamental rights] monitoring and enforcement mechanism called for by the European Parliament.’60 But others took a much more restrained view and claimed that the

review of the rule of law in Poland by the CJEU would constitute an ultra vires action, as this competence is determined in the TEU solely for the Member States acting through the Council or the European Council in accordance with the procedure provided in Art. 7 TEU. The CJEU ruling should be limited solely to the application of the Aranyosi-Caldararu test to assess whether the systemic changes in the judiciary in Poland comprise a violation of the right to a fair trial as defined in Art. 47 of the Charter.61

It was against this legally and politically controversial background that the Opinion of Advocate General Evgeni Tanchev was announced on 28 June 2018.62 Tanchev AG suggested that the legal problem in the case should be framed as a fundamental rights issue and not as a rule-of-law issue. Moreover, in his view, the Court of Justice should follow the path from the Aranyosi and Căldăraru case without pronouncing on the legislative changes in the judiciary branch in Poland. The Court should leave the final decision on the possibility of a fair trial in Poland to the Irish High Court. The national court has to decide whether or not to execute an EAW even if an Article 7 TEU procedure is pending. He also agreed that a potential breach of the right to a fair trial can be the basis to postpone the execution of the EAW. He pointed out that the executing judicial authority should engage in a two-stage examination to find not only that (1) there are systemic deficiencies in the issuing judicial system, but also (2) that the person concerned is actually exposed to such a risk because she is a political opponent.

So this was an extremely cautious approach, aimed at identifying the strongest possible limits on exceptions to the principle of mutual trust, which is the engine of the EAW system. Tanchev AG declined the invitation to rule on the state of the rule of law in Poland in general terms. At the same time, however, he rejected the claims by the Polish government that the Irish Court’s question was premature, and emphasized that the Article 7 procedure and a case before the CJEU regarding the EAW have totally different functions and character:

The former enables the European Union to intervene in the event of serious and persistent breach by a Member State of the values on which the European Union is founded. The latter enables the executing judicial authority to protect the fundamental rights of the person who is the subject of a European arrest warrant.63

Hence, there is no need to postpone the decision regarding the fundamental right until the European Council decides on Article 7(1); such a link between two procedures ‘would be tantamount to prohibiting th[e executing] authority, for a period (p.205) that is at the very least indeterminate, from postponing the execution of a European arrest warrant’.64

One can note a paradoxical convergence between the harshest critics of the government in Poland on the one hand and, on the other hand, the Polish government itself in pleading for a link between the Celmer case and the Article 7 procedure, the link being established by the framing of the Celmer case in rule-of-law terms. The difference was, of course, that while this link led the critics to conclude that the Irish court should ‘freeze’ the case, and suspend the extradition until the outcome on Article 7 is known, for the government that link meant that, since the determination regarding the rule of law in Poland is not known and not to be expected any time soon, the surrender of Mr Celmer should go ahead regardless. Ostensibly striking a more prudent line of argument, the moderate solution chosen by Tanchev AG was to re-articulate the matter in terms of the fundamental right to a fair trial. But if the Polish government were tempted to view it as a victory, it was a Pyrrhic one. Later on in his Opinion, Tanchev AG constructed a link with ECtHR case law under Article 6 of the ECHR, and to its doctrine of a ‘flagrant denial of justice’. What is required for a flagrant denial is a ‘breach of the principles of fair trial guaranteed by Article 6 [of the ECHR] which is so fundamental as to amount to “a nullification, or destruction of the very essence, of the right guaranteed by that Article” ’.65 If it sounds, however, like an excessively high standard to apply, Tanchev AG reassuringly added: ‘it cannot, to my mind, be ruled out that lack of independence of the courts of the issuing member state may, in principle, constitute a flagrant denial of justice’.66 But then, referring to the Court of Justice judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses,67 he stated that ‘the lack of independence and impartiality of a tribunal can be regarded as amounting to a flagrant denial of justice only if it is so serious that it destroys the fairness of the trial’.68 One may note that by construing the test in such a way, he transformed it into something that is impossible to apply in practice: barely any real-life situation would meet such a test.

The meekness of Tanchev AG’s Opinion caused some harsh immediate criticism. Petra Bárd and Wouter van Ballegooij pointed out that ‘[t]he AG Opinion’s construction of the case as a potential human rights deficiency renders challenges to rule of law violations hypothetical’. The application of the two-prong Aranyosi test is, according to them, ‘incoherent and not workable in practice’, and is likely to result in ‘impunity for Member States violating the rule of law, as well as individual exposure to fundamental rights infringements’.69 Michał Krajewski, for his part, pleaded for the linkage between the case and Article 7, saying that ‘proceedings under Article 7 TEU and proceedings before the Court of Justice in the Celmer case indeed do have the same or at least very similar subject-matter, contrary to what AG Tanchev stated’.70

The Court of Justice judgment was delivered a month after the AG Opinion, on 27 July 2018.71 Right from the outset, the Court framed the issue in terms of (p.206) a fundamental right to a fair trial and connected the EAW case with Article 7, by saying that a reasoned proposal of the EC within Article 7(1) may constitute material indicating that there is a real risk of a breach of that fundamental right. In such cases, a court making a decision about a surrender within the EAW must ‘determine, specifically and precisely, whether there are substantial grounds for believing that the individual concerned will run such a risk if he is surrendered to that State’.72 In this way, the groundwork was set for the rest of the judgment.

On that basis, the Court elaborated on the principle of mutual trust, which requires ‘each of [the member] States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognized by EU law’.73 The exceptionality of departures from the principle has been restated several times, for instance by saying that ‘save in exceptional cases, [other member states] may not check whether that other Member State has actually, in a specific case, observed the fundamental rights’.74 In itself, the emphasis on a strong presumption of mutual trust is highly questionable: when an Article 7 procedure is underway, one may legitimately argue that the principles of Article 2 gain priority over the principle of mutual trust.75 What, according to the Court, may constitute such ‘exceptional circumstances’ justifying exceptions to mutual trust, and hence the refusal to surrender a person under the EAW? The Court made it clear that:

In that regard [i.e. in the context of exceptions to mutual trust], it must be pointed out that the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded.76

All that led the Court to establish that the independence and impartiality of courts is a condition of the ‘high level of trust between Member States on which the European arrest warrant mechanism is based’, and so a real risk that a person to be surrendered would suffer a breach of his/her fundamental right to a fair trial may permit the executing judicial authority, by way of exception’, to refrain from surrendering that person. It is up to the executing judicial authority—a court in the country from which extradition is requested—to assess whether there is such real risk to that person.77 The assessment must be ‘on the basis of material that is objective, reliable, specific and properly updated concerning the operation of the system of justice in the issuing Member State’.78 And for this assessment, the information included in the reasoned proposal by the Commission activating the Article 7(1) procedure is ‘particularly relevant’.79 Again, the Court drew a strict connection between the EAW case and Article 7, the latter serving as a source of information necessary to hand down a judgment in the former.

(p.207) Some general observations are in order. First, the Commission’s reasoned proposal on activation Article 7(1) TEU may be considered as ‘particularly relevant’ information for the Irish court, as well as other courts in the EU, to recognize the risk of a serious breach of values expressed in Article 2 TEU.80 In this way, the CJEU expanded the catalogue of sources of information to be considered by a judge in making determinations about an EWA. It does not mean, however, that such material will necessarily meet the Aranyosi test. There is always a need for a court to assess the impact of such risk for individuals subject to an EAW.81 In this way, the CJEU simply evaded the issue of the systemic nature of threats to the rule of law signalled by the initiation of the Article 7 procedure, which (one may argue) may render time-consuming and convoluted judicial tests unnecessary.82

Second, the judgment may be seen as a judicial legitimization of the commission’s actions under the rule of law framework. It may also be recognized as grounds for a future ruling in the cases submitted by the Commission or initiated by the Polish SC’s preliminary references concerning the ‘reform’ of the judiciary in Poland. The Court’s repeated references to the case of Associação Sindical dos Juízes Portugueses suggests such a future line of case law83—something that is yet to be verified if and when the Court hands down its judgment on the Polish SC.

Third, the CJEU itself did not conduct the test, and did not directly rule on the systemic risk that would justify a refusal to surrender in the EAW case. Rather, the Court strongly emphasized the huge obligations of the national court submitting the preliminary question. But the CJEU reasserted the test to be used: the national court’s decision on the real risk of a breach of the essence of the fundamental right to a fair trial should depend on specific circumstances and facts that are relevant for an accused person. The Court clearly, and regrettably, did not want to depart from the Aranyosi and Căldăraru doctrine. At the same time, an important part of justification was based on the Associação Sindical dos Juízes Portugueses. In that decision, the Court directly pointed out that a Member State’s judicial structure must be seen as an important part of guaranteeing the right to a fair trial regardless of whether such a structure is under the scope or direct protection of EU secondary law or not.

Fourth, the judgment clearly identified some structural aspects of the control of judiciary that may be considered as symptoms of defects in guaranteeing the independence of judges. In particular, it pointed towards the disciplinary measures and procedures established towards judges; such measures must provide for guarantees in order to avoid the risk that the disciplinary system would lead to political control of the substance of judgments.84 This warning reads like direct reference to what has actually happened in Poland, where the system of disciplining judges has been fully subjected to the political will of the executive, with the politically appointed Disciplinary Chamber of the SC at its apex, and which has been used by the MJ to persecute and harass judges for taking decisions he dislikes.

(p.208) Fifth, the judgment wisely abstained from the extremely elevated standard of ‘flagrant denial of justice’ present in the AG’s Opinion, the use of which would have rendered a case-by-case suspension of surrender virtually impossible.85 Still, the repeated emphases on the ‘exceptional’ circumstances as to when such a suspension of trust is allowed raises a very high bar before a judge who is concerned about the state of a system of justice, and in particular the independence of judiciary in the other member state. This, combined with the need to conduct the second (individualized) tier of Aranyosi, virtually assures that suspensions will be extremely rare, if they occur at all. Perhaps this is a good thing. But in a situation in which the executing authority must seek additional information from the issuing judicial authority presupposes that the latter enjoys significant independence. If it does not, the requirement for such action is self-defeating.

After the CJEU judgment, but before the final judicial decisions in Ireland (which have not been handed down at the time of writing), there were two other decisions by domestic European courts in Spain and Madrid, which issued questions to their Polish counterparts under the tests established by the Celmer case, to verify whether the conditions for deportations under EAW are met in Poland. The process has been launched, and a ripple effect may be expected.

Saving the Trees, Saving the Courts

After PiS’s ascension to power, the government found itself before the CJEU for reasons not directly connected to the rule of law. The matter became a huge embarrassment, and in addition showed that the Court’s interim measures can be effective in compelling an intransigent government to act in accordance with EU rules. To some observers in Poland, it was an optimistic instance of the CJEU’s impact on a member state; an impact that, one day, may also apply to the dismantlement of rule-of-law mechanisms.

The Commission’s challenge to PiS’s policy before the CJEU could be partly understood as reflecting its disregard for environmental concerns: care for the natural environment has been seen as part of a leftist, Western-born syndrome, alien to the traditional culture of Poland. This barbarian attitude was reflected in logging in the Białowieża forest in eastern Poland, one of the most precious European natural habitats. In its action of 20 July 2017,86 the EC asked the Court to declare that Poland had failed to fulfil its obligations under the Habitats and Birds Directives by failing to take the necessary conservation measures corresponding to the ecological requirements of the directives, and by not guaranteeing the protection of species of birds referred to in the directive. According to the order of the vice chairman of the CJEU of 27 July 2017, ‘Poland should have ceased, immediately and until delivery of final judgment in Case C‑441/17, the active forest management operations the removal of centuries-old dead spruces and the felling of trees as part of increased (p.209) logging on the Puszcza Białowieska site’.87 Poland was only exceptionally allowed to take measures where they were strictly necessary, and in so far as they are proportionate, in order to directly and immediately ensure the public safety of persons, on the condition that other, less radical measures are impossible for objective reasons. Having regard to the fact that Poland ignored the ruling and continued logging in Białowieża, the commission supplemented its application for interim measures by requesting the Court impose a periodic penalty payment on Poland.

In response, the Polish Ministry of the Environment filed a motion to dismiss the injunction as unjustified. Moreover, the Polish government decided to interpret the notion of public safety expansively, as public safety was the only exception to the interim injunction allowed by the Court decision of 27 July 2017. The Polish government argued that public safety encompasses not only the risk posed by falling timber close to roads that can become a threat to tourists and conservation workers, but also by trees inside the woodland, as they could accidentally fall on mushroom pickers. It was a typical argument ad absurdum meant to show that public safety does not only apply to people but also to nature.88

In its decision of 20 November 2017,89 the Court granted the Commission’s application until delivery of the final judgment in the case. Poland was also ordered to send the Commission details of all measures that it had adopted in order to comply fully with it, no later than fifteen days after notification of that order, as well as the active forest management operations that it intended to continue because they were necessary to ensure public safety, provided with reasons. If Poland was found to have infringed this order, the Court could order it to pay the Commission a penalty payment of at least EUR 100,000 per day. In the end, the monetary penalty was not imposed on Poland due to the fact that the Commission accepted, rather naively, the Polish government’s explanations submitted in accordance with the decision of the CJEU.

In his Opinion of 20 February 2018, Advocate General Yves Bott proposed that the CJEU should declare that Poland had violated the provisions of the Habitats Directive as well as the Birds Directive.90 It was not surprising that the Court ruled on 17 April 2018 that by carrying on logging activities in the Białowieża Forest, Poland failed to fulfil its obligations under EU law.91 By that time, Poland had a new government and a new minister for the environment: the combative, pro-logging Jan Szyszko was replaced by the much more moderate Henryk Kowalczyk. The PiS government realized that the political costs of heavy logging outweighed the losses suffered by the timber lobby, and gave in. By and large, Poland desisted from logging in the Białowieża Forest.

Again, this was not, strictly speaking, a ‘rule of law in Poland’ issue, but its symbolic value for opponents of the government was enormous: it has shown that Europe may be effective in imposing restraints upon the PiS government, and if it was effective regarding logging, why would it not be effective regarding the dismantlement of the independence of the courts? The intervention by the (p.210) Commission and the Court showed that the EU has sufficient legal instruments and the capacity to enforce them in preventing a recalcitrant government from openly disregarding its EU-based obligations.

Did it augur well for the intervention regarding the Polish courts? With an unusual delay (the law was enacted and entered into force by mid-2017), the Commission also decided to bring the case concerning judicial ‘reforms’ in Poland before the CJEU in its action of 15 March 2018.92 The Commission had two main complaints. First, the law distinguished between men and women concerning the retirement age for judges: sixty years of age for women, sixty-five for men, thus breaching EU provisions on equal opportunities and the equal treatment of men and women in matters of employment and occupation.93 This defect in the law was later remedied, and Polish government levelled the retirement age at sixty-five. This change was politically easy and inexpensive for the government to make, as it did not affect the central point of the reforms, namely to subject judges to strong control by the executive, and by the MJ in particular. The latter issue was addressed by the Commission’s second objection, namely that the statute on the common courts granted the MJ the right to decide whether to extend the period of active service of judges. This is of course the key provision of the statute in question, and if the CJEU accedes to the point of view of the Commission, namely that the provision breaches Poland’s treaty obligation to adopt remedies sufficient to ensure effective legal protection in the fields covered by EU law, this will be a major blow to the reforms. At the time of the writing this book, the case is still pending.

The second infringement procedure launched by the Commission concerned the statute on the SC. The procedure was launched at exactly the last moment: the changes concerning the compulsory retirement of a large number of judges came into force on 3 July, and the Commission’s action was announced on 2 July.94 Again, the Commission’s delay was inexplicable as the statute’s last version was enacted on 8 December 2017, and since then it was clear that the president of Republic would be empowered to decide, as a discretionary matter, as to whether to accede to the judges’ requests to continue in active service beyond the age of sixty-five. As described in detail in Chapter 4, once 3 July came, the KRS, MJ and the president took concerted rapid actions that managed the purge of the Court with deadly efficiency, clearly trying to win the race with the CJEU and create fait accompli, which would make the CJEU judgment, if unfavourable to the new law, virtually ineffective. In the end, the Commission referred Poland to the CJEU on 24 September 2018.

The infringement procedure by the Commission is based on the view that the measures of the statute undermine the principle of judicial independence, including the irremovability of judges and, as such, Poland has failed to fulfil its obligations under Article 19(1) of the TEU read in connection with Article 47 of the Charter of Fundamental Rights of the European Union. Before the infringement action was launched, the commission engaged in a ritual ‘dialogue’ with the Polish government regarding the law. The government’s argument was that the powers (p.211) of the president are not that dangerous because the law, as amended, introduced the requirement of ‘consultation’ by the KRS. But the Commission did not buy this argument, pointing out that this consultation ‘does not constitute an effective safeguard’ for three reasons: it is not binding, it is based on vague criteria, and the KRS itself, under the law of 8 December 2017, is composed of judges-members elected by the parliament, ‘which is not in line with European standards on judicial independence’.95

When referring Poland to the CJEU, the Commission called on the Polish authorities to halt the implementation of the law on the SC (to no avail), and emphasized the urgent nature of the situation by requesting an expedited procedure and that the CJEU impose interim measures. As of the time of writing, the case is pending.

Polish Judges Appeal to Luxembourg

The most dramatic instance of the interaction between Polish developments and European law so far took place on 2 July 2018 when, in a rare move for Polish judiciary, the Polish SC decided to ask the CJEU for a preliminary reference regarding the new law on the SC.96 The questions were asked by an enlarged bench of the SC, appointed to examine a particular legal issue presented in the case of EU coordination of social security systems. The Court used this EU law-related case as a platform to query the new law on SC for its consistency with EU law because two of the judges sitting on the panel belonged to the category of judges affected adversely by the new law in that they were over sixty-five years old and therefore threatened with dismissal should the president decline their request to continue their term of office.

In its preliminary reference, the SC asked the CJEU whether the following provisions of the new law, and their consequences, were consistent with EU primary law: (1) the lowering of the retirement age of SC judges from seventy to sixty-five, without leaving them a right to decide whether or not to exercise a lower retirement age entitlement; (2) the obligation imposed upon judges of sixty-five years and over to obtain the consent of the president of the Republic to continue in their office after statutory provisions entered into force. The SC was also uncertain as to whether the situation created by those statutory provisions might be classified as a case of discrimination on the ground of age, which is prohibited by EU secondary law. Moreover, in case of a finding of discrimination and violation of EU law by the national statutory provisions, the CJEU was asked whether the SC may decline to apply the national legislation on the lowering of the age of retirement for judges, and also, whether acting as a European court, the SC had the authority to suspend the application of all national provisions that violate guarantees for the tenure of judges.

(p.212) The SC suggested that the newly adopted Polish statutory provisions may violate the TEU obligation of the member state to provide sufficient and effective judiciary protection in the fields covered by EU law, the principle of sincere cooperation in the context of the rule of law guarantees, a right to an effective remedy and to a fair trial as well as rules against discrimination. The SC applied for an expedited procedure. While doing so, it also suspended the application of a Polish law forcing the early retirement of SC judges aged sixty-five and over, including the president of the SC, whose term is guaranteed by the Constitution.

It was this last aspect—the suspension of the application of the new law towards the judges of the SC aged sixty-five and over, which caused the greatest outcry. All top authorities, including the president and the MJ, condemned the SC decision on the basis that it arrogated to itself the power of invalidating properly enacted laws. President Duda even went so far as to say that the decision had no legal basis, was of a purely political character, and that he was not bound by it97 (indeed, he later manifested his disregard for the SC decision by failing to reappoint some of the judges aged sixty-five and over). The SC spokesperson’s explanation that the decision was much narrower than was presented by politicians and the media—namely that it only suspended the applicability of some provisions of the law towards a specifically targeted group of SC judges98—has not changed the attitudes of critics of the decision.

Once again, this outcry has shown the regime’s cavalier approach to the rule of law: it was compelled to say that the judgments of the SC are not binding for them if the ruling politicians dislike them. In itself, an important effect of the SC decision was eliciting such declarations from the government. Legally speaking, the decision, while unusual, had a strong basis and justification in CJEU case law. The reasons for the decision referred, inter alia, to the CJEU ruling in the case of Commission v Hungary,99 in which the Court found that ‘by adopting a national scheme requiring compulsory retirement of judges, prosecutors and notaries when they reach the age of 62—which gives rise to a difference in treatment on grounds of age which is not proportionate as regards the objectives pursued’, Hungary violated Directive 2000/78/EC.

The unusual character of the decision was that the connection between the main proceedings, which engaged EU law (concerned as it was with coordination of social security systems), and the issue of SC judges’ tenure could be seen as somewhat tenuous. So much was conceded by Professor (and ex-Vice President of the CT) Stanisław Biernat who, writing with Monika Kawczyńska, admits that the preliminary reference ‘does not have substantial relevance in the traditional sense of the term to the main proceedings’. And yet, the two authors claimed:

The link between the preliminary references and the substance of the main proceedings is about confirming the ability of the national judges to hear the case where EU law shall be (even potentially) applied. Therefore, it is not a connection (p.213) between the content of the questions referred and the subject of the main proceedings. It is a close relationship of a different kind that can be described as functional.100

Perhaps the most important aspect of the preliminary reference by the Polish SC is that, in its reasons, the Court expressly and directly connected the issue at hand with the ongoing procedure under Article 7 of the TEU. The SC referred to the Opinions of the VC as well as to the Commission’s reasoned proposal on the activation of Article 7 TEU, and also to the Commission’s infringement action of 3 July 2018. All these connections with European procedures regarding Poland made the decision of the Polish SC particularly powerful: it was woven into a thick European tapestry of legal and political concerns about the rule of law in Poland.

By the end of September 2018, seven other questions were sent to the CJEU by Polish courts through the preliminary reference procedure: four by the SC and three by other courts (the Regional Courts in Warsaw, Łódź, and Gorzów Wielkopolski). They all, by and large, replicated the substance of the SC’s preliminary questions submitted on 2 August. It is interesting to note that all three Regional Courts focused their questions almost exclusively on the issue of the new model of disciplinary proceedings against judges, and in this context asked the CJEU for interpretation of Article 19 TEU: can it be understood in such a way as to prohibit disciplinary proceedings that do not give any guarantees for the objectivity and independence of disciplinary authorities dependent on the executive? At the time of writing, the cases were registered as cases before the CJEU, and are still pending. But the courage of the judges—especially from the Regional Courts—has to be highlighted: each of the court decisions were strongly condemned by political authorities, and the judges were subjected to various forms of harassment (such as prolonged interrogations by the disciplinary officials). One positive side effect of these court decisions was Polish judiciary’s ‘discovery’ of the preliminary reference mechanism, which had rarely been used until then, and one can presume, was virtually unknown by many judges in Poland.

The Rule of Law Framework Designed

The rule of law framework is a procedure established early in 2014 as a halfway measure between ordinary infringement actions under Article 258 of the Treaty on the Functioning of the European Union (TFEU) and highly politicized and dramatic actions based on Article 7. From the very beginning, there was a certain ambiguity about the rule of law procedure, namely whether it was a ‘pre-Article 7’ stage or a standalone procedure. This ambiguity has been glossed over in the initial communication by the EC of 11 March 2014, which described it as ‘fill[ing] a gap’ but exactly what gap there was to fill was never clearly explained. The procedure, (p.214) the Commission urged, ‘seeks to resolve threats to the rule of law in Member States before the conditions foreseen in Article 7 would be met’101—thus envisaging a stand-alone role for when the conditions are not ripe (and hopefully, would not ripen) for Article 7. On the other hand, the Commission also characterized the new procedure as one which ‘precedes and complements Article 7 mechanisms’,102 with a top Commission official describing it as a ‘pre-Article 7 procedure’,103 thus clearly positioning it as an early sequence in that procedure. The Commission emphasized that the new procedure is ‘without prejudice’ to the Commission’s powers to address specific situations by means of the infringement procedures under Article 258 of the TEU.104

As a relatively soft mechanism, the rule of law procedure was criticized soon after it was announced for its likely ineffectiveness.105 But the defenders believed that, far from being ineffectual, the framework’s actual first activation gave grounds for optimism: it ‘has shown its potential to mobilize European public opinion and orient public discourses to the current condition of EU values. Major EU newspapers have taken up the issue, informed commentary is being produced, and the EP [European Parliament] had a promising debate on the issue’.106 Up to this point, Armin von Bogdandy and his collaborators had a point. But they went on to predict: ‘We do not believe that engagement in this phased dialogue can easily be ignored by any government, and it will thus have a domestic impact as well as a ripple effect’.107 As we shall see, in anticipating (hoping for?) such salutary effects upon the government concerned, they were overly optimistic.

At the beginning, there was some uncertainty as to whether the commission had sufficient legal grounds for initiating the framework, and very shortly after the initial announcement, the Legal Service of the Council delivered an eccentric opinion stating that the Commission’s new mechanism was unlawful.108 As one would imagine, the Legal Service’s arguments were to be used later on by the Polish government to claim that the Commission was acting ultra vires, and some Polish pro-government lawyers have endorsed and expanded on these arguments. But these arguments were thoroughly criticized by the majority of scholars, and eventually the Commission’s competence to adopt the framework was accepted by the European Parliament, the Council, and the CJEU.109 A quasi-consensus emerged that the rule of law procedure was the legitimate result of the interpretation of several treaty provisions aimed at ensuring efficiency of EU law.

This quasi-consensus followed from a number of arguments. First, according to Article 17 TEU, the commission is a guardian of treaties, and according to Article 292 TEU it may adopt recommendations. There is no need for the commission to indicate a direct or specific legal competence basis to adopt a particular recommendation when its scope generally falls within EU law. Second, once the Commission was given the competence to submit a motion under Article 7 TEU, there should be no doubt that it is also empowered to take all necessary measures to fulfil its obligations in the most effective and transparent way (i.e. collect materials, (p.215) enter into dialogue with the member state, or adopt recommendations or other soft and non-binding acts). Without the sort of scrutiny provided in the communication, the Commission would not be able to submit a reasonable and comprehensive justification for its motion from Article 7(1). As Dimitry Kochenov and Laurent Pech say,

a strong and convincing argument can be made that Article 7(1) TEU already implicitly empowers the Commission to investigate any potential risk of a serious breach of the EU’s values by giving it the competence to submit a reasoned proposal to the Council should the Commission be of the view that Article 7 TEU ought to be triggered on this basis.110

Third, there is a direct link between the rule of law framework and the principle of ‘mutual trust’ and ‘sincere cooperation’ of Article 4 TEU: the framework was designed to avoid the escalation of a rule of law crisis and violation of EU law that would be harmful from the perspective of mutual trust. The Commission’s recommendations and proper dialogue with a member state under the rule of law framework may help prevent situations like in the Aranyosi111 case, when a threat to the rule of law justified a narrow exception to the mutual recognition principle in EAW proceedings. In the case of the failure of the effectiveness of the Commissions’ efforts within the framework (as that which eventually happened with regard to Poland during 2015–18), the recommendations adopted by the Commission may help the courts of other member states to assess the scale of EU law violations and facilitate a decision on the application of an exception similar to the Aranyosi case (which in fact occurred in the Celmer case initiated by the Irish High Court, discussed earlier in this chapter, ‘Poland before the CJEU: A Call from Dublin’).

To summarize, the competence to adopt the commission’s recommendations before activation of a pre-Article 7 procedure can be seen as an example of implied powers. Carlos Closa summarizes the legal grounds for the framework well:

The first argument derives from the model of community that the EU stands for: the EU is a community of law which depends on mutual recognition and mutual trust. Secondly, the breach of the principle of the Rule of Law affects all the members of this community. This principle can be labelled the all affected principle. The third argument refers to the consistency between the EU’s own proclaimed values and policies.112

But most important of all the arguments concerns its instrumental role vis-à-vis the Article 7 procedure: if the Commission has a role reserved for it in the procedure—namely the capacity to submit a ‘reasoned proposal’ to the Council to enable it to adopt recommendations prior to finding a clear risk of a serious breach of EU values—the task cannot be properly and responsibly fulfilled without a structured, (p.216) sequenced procedure envisaged in the newly fashioned framework.113 For all these reasons, it seems unquestionable that the Commission did not violate the principle of conferral, announced in Article 4 of the TEU.

Going beyond a purely legal defence—that is, that the framework’s establishment was not ultra vires—perhaps the most important substantive justification for the framework was that the ‘Commission finally understood the serious, if not existential, threat posed by the solidification of authoritarian regimes within the EU’.114 This was a threat that was not anticipated early on in the process of European integration, when the EU (or rather its predecessors) was a small club of like-minded western European democracies. With its enlargement towards the eastern part of the continent, the threat became more than a hypothetical prospect. And it became clear that the EU must have a variety of tools at its disposal, not limited to Article 7 and infringement actions.

But it does not follow that the Rule of Law Framework has been without weaknesses and blind spots, which were depicted even by those who, by and large, endorsed the new instrument. For one thing, it has been argued that there is no clear and uncontroversial definition of the ‘rule of law’ within the EU: its understanding, it was pointed out, is sensitive to national constitutional systems, with allegedly no substantive definition at EU level.115 The point is well taken but it may apply to any of the values specified by Article 2, which in itself cannot be seen as an argument against proclaiming such values as democracy or human rights in an international treaty for a polity or organization based on values. It may well be that, as Kochenov urges, the rule of law is an ‘essentially contested concept’,116 but it does not follow that, at least at the lower scale of indicia of the rule of law, there is no consensus about what these indicia are. And while there may be a reasonable disagreement about the implementation of these indicia—for instance, what should count as a violation of judicial independence, or how much corruption constitutes a violation of the rule of law?—some breaches are at least beyond contestation, and ‘we know them when we see them’. The original communication by the Commission referred to various standards of the rule of law in Court of Justice case law, as well as in the statements of the ECtHR, VC, and other CoE bodies, which should be seen as points of reference to assist in configuring the scope of the principle of the rule of law. Similarly, it is important to keep in mind that, in the process of the accession of CEE member states to the EU, Copenhagen conditionality used, inter alia, the rule of law ‘as a standard against which to measure the progress of accession states’;117 and the Commission’s annual reports within that process constitute an important acquis for the understanding of the rule of law within the EU.

The point has also been made, by Amichai Magen among others, that since Article 2 lists a number of other values alongside ‘the rule of law’ (‘human dignity, freedom, democracy, equality, … respect for human rights, including the rights of persons belonging to minorities’), then it is all the more urgent for the EU bodies to precisely define the rule of law, in order to demarcate it from those other values.118 (p.217) This, the argument goes, is made more important by the fact that the Rule of Law Framework procedure is focused only on one of those values, while Article 7 is activated when a breach of any of those values is envisaged. But, in my view, there is a non sequitur in the argument: the fact that the rule of law appears in Article 2 in a configuration with other values means that the drawing of its precise conceptual boundaries is less rather than more urgent. After all, there are significant overlaps between the rule of law, democracy, and human rights, and one of the points of this book is to show how, in Poland, a comprehensive assault on the rule of law produces important negative externalities for democracy and civil rights. All these principles figure in a mutually supportive, interlocking, integrated scheme of political values, where each is understood and appreciated in the light of the other. I have in mind an interrelationship of values (as contrasted with a ‘detached’ view) corresponding to what Ronald Dworkin eloquently (though in a different context) described as an ‘integrated scheme of values’: ‘we suppose not only that an integrated value’s existence depends on some contribution it makes to some other, independently specifiable, kind of value, … but that the more precise characterization of a [sic] integrated value … depends upon identifying that contribution’.119 So even if the Rule of Law Framework picks on one of the Article 2 values, it would be pedantic or, worse, unfaithful to the nature of complexity and the inter-connectedness of moral principles to insist on a precise delimitation of the rule of law, as if it was an autonomous or ‘detached’ principle. To be sure, there were good reasons for the new framework not to be called a ‘Democracy Framework’ or a ‘Human Rights Framework’, but its focus on the rule of law does not mean that this value orientation renders the argument in terms of other Article 2 values irrelevant, or that they can be clinically separated from each other.

Some misgivings have been also expressed about the concept of ‘a systemic threat to the rule of law’ used in the foundational document for the framework. As the communication envisaged, ‘The main purpose of the Framework is to address threats to the rule of law … which are of a systemic nature. The Framework will be activated when national “rule of law safeguards” do not seem capable of effectively addressing those threats’.120 This means that, as some commentators have pointed out, ‘Individual breaches of fundamental rights or an isolated miscarriage of justice are not enough to trigger action against a Member State under the Framework. Action is reserved for extreme cases’.121 Some critics observed that the Commission did not explain what would count as a ‘systemic threat’, with isolated violations on one end of the scale as opposed to systemic violations on the other end.122 But the point goes only so far, and if the framework is read in the context of Article 7 (as it should be, considering that it is largely conceived as a pre-Article 7 procedure), then it is plausible to say that the framework’s systemic threats (as opposed to actual violations) may correspond to a clear risk of a serious breach of Article 2 values’, as articulated in section 1 of Article 7, while actual violations (which are too severe to merely activate the framework) (p.218) correspond to ‘the existence of a serious and persistent breach’, as codified in section 2 of the same article. It may be worth noting, in this context, that the language of the communication establishing the framework does not faithfully track the language of Article 7, in that it omits the concept of ‘risk’, replacing it with ‘threats’. While these two concepts are not identical, in real-life situations they play more or less the same role. At the same time, the framework’s concept of ‘systemic’ plays a role equivalent to ‘serious’ and ‘serious and persistent’ in Article 7. While theoretically we can think of serious breaches that are not systemic, and vice versa, of systemic breaches that may not be all that serious, in real-life cases of EU member states embarking upon authoritarian paths such distinctions seem to be pedantic in the extreme.

So, read in the light of the language of Article 7, the terminology used in the foundational document for the framework becomes less indeterminate and vague than it may appear at first blush. It is all the more persuasive since the Commission supplied important interpretive guidance as to what threats are considered to be systemic: it happens ‘when national “rule of law safeguards” do not seem capable of effectively addressing those threats’.123 The absence of effective mechanisms of self-correction may be seen as an important symptom and/or cause of a systemic threat. Every legal system is guilty of some errors, miscarriages of justice, failures to provide effective protection to citizens, and instances of corruption and incompetence. What matters is whether there is a by-and-large effective institutional structure for self-correction, for instance through an appellate judicial structure, judicial review, well-functioning freedom of information mechanisms, and proper reactions to media investigations. It is the collapse of such measures of self-correction, usually resulting from the institutional capture of the entire state apparatus by the executive that renders threats to the rule of law truly systemic.

Rule of Law Framework Proceedings Against Poland

On 13 January 2016, for the first time ever, the EC announced that it would carry out a preliminary assessment of the situation of the Polish CT under the Rule of Law Framework. On that day First Vice-President Frans Timmermans said: ‘We are taking this step in light of the information currently available to us, in particular the fact that binding rulings of the Constitutional Tribunal are currently not respected—which I believe is a serious matter in any rule of law-dominated state.’124 But the process from the very beginning was broader than just regarding the CT, and the breadth of the Commission’s concern was evidenced several months later, when it announced its first recommendation on 27 July of that year.125 In the meantime, a complex set of frenzied activities between Brussels and Warsaw went on, including various letters to and from the Commission and the Polish government, visits by Frans Timmermans in Warsaw, and an Opinion by the (p.219) Commission on the rule of law in Poland, adopted on 1 June 2016. Apparently, they led to nothing: hence, the July 2016 recommendation.

While ostensibly the five specific demands contained in that Recommendation all concerned the CT, with the VC’s Opinions providing the main platform for a critique of the subsequent actions and laws concerning the CT, the European Commission perceptively connected the paralysis of constitutional review with the enactment of several problematic pieces of legislation, such as the new media law, the new Civil Service act, acts on the police and on public prosecutors, etc.126 The implication was clear: these laws could have been enacted and kept on the books thanks only to the disabling of effective constitutional review. But knowing the revolutionary zeal in Warsaw in mid-2016, when the paralysis of the CT by legislative bombardment and by packing the court with ‘quasi judges’ was at its peak, it would take a miracle for the government of Poland to comply with the recommendations, and especially with the first one: to make sure that ‘the three judges that were lawfully nominated in October 2015 … can take up their judicial functions in the Constitutional Tribunal, and that the three judges nominated by the new legislature without a valid legal basis do not take up the post of judge without being validly elected’.127

The miracle has not occurred. Exactly three months later, that is, right on the deadline the commission gave to the Polish government, the government published its response. The response of 2 October 2016 prefigured the responses to all subsequent recommendations: it was heavy-handed, full of self-righteous outrage, and made no concessions whatsoever to any specific criticisms. The tone of the response can be best gleaned from the statement by the minister of foreign affairs on that day, who denounced the ‘interferences into Poland’s internal affairs’ in violation of the principles of ‘objectivism, or respect for sovereignty, subsidiarity, and national identity’.128 The minister of foreign affairs claimed that the ‘consolidation of a democratic rule of law in Poland, including the creation of stable foundations for the Constitutional Tribunal to operate, is an overriding objective for the Polish government’. This was followed by a rather disingenuous expression of goodwill: Poland ‘welcomes openly any suggestions on how to improve the work of the constitutional court’.129 But Poland was hurt and its good intentions were not rewarded: ‘In our dialogue with the European Commission, we have assumed that our cooperation will be based on such principles as objectivism, or respect for sovereignty, subsidiarity, and national identity. On top of that, such actions are largely based on incorrect assumptions which lead to unwarranted conclusions’.130 Later noting: ‘we regret to note that the Commission Recommendation is an expression of incomplete knowledge about how the legal system and the Constitutional Tribunal operate in Poland’.131 So Poland was left with no choice: ‘we have concluded that we had no choice but to assess the Commission Recommendation of 27 July 2016 as groundless’,132 and so, therefore, is the entire procedure: ‘the ongoing political dispute over the rules governing the work of the Constitutional Tribunal (p.220) cannot form the basis for claiming that there is a systemic threat to the rule of law in Poland’.133

Based on this response, some scholars formed a view that enough is enough and the time for activating the Article 7 was ripe. Laurent Pech, for one, suggested that the Commission was left with no other choice:

The ‘name and shame’ and reputational costs associated with an unprecedented recourse to Article 7 TEU should not be underestimated, not to mention the significant financial costs on the borrowing front and the negative impact regarding FDI this might entail for Poland … Not acting would also seriously endanger the whole EU legal framework.134

But it was not to happen: not at the time, anyway. The cat-and-mouse between the Commission and Polish government continued, and took three more iterations of the recommendation-and-reply cycle. The second recommendation, of 21 December 2016,135 again focused on the CT, repeating earlier objections and adding specific operations regarding the election of the president and vice-president of the tribunal. The point was made unequivocally: the ‘procedure which led to the appointment of a new President of the Tribunal is fundamentally flawed as regards the rule of law’.136 And just like in its first recommendation, the commission connected the disabling of the CT with ‘[a] number of particularly sensitive new legislative acts [that] have been adopted by the Sejm’,137 including a media law, a law on civil service, a law on the police, and on the public prosecutor’s office. Reflecting the speedy legislative production by the PiS government throughout 2016, the second recommendation expanded the range of troublesome legislation that was now basically immune to effective judicial review.

While confirming concerns about the CT and the legislation just mentioned, the third recommendation of 26 July 2017138 expanded its reach to the acts on the judiciary, which had by that time been the order of the day in Poland. Regarding the act on common courts, the Commission particularly criticized ‘the power of the Minister of Justice to arbitrarily dismiss court presidents … which may affect their personal independence when they adjudicate cases’.139 The Commission also criticized the draft laws on the KRS and the SC, pointing out in particular that the new retirement age would adversely affect the independence of judges.

Finally, the fourth and last recommendation of 20 December 2017 put together and updated all objections and criticisms so far. It was a particularly important document for at least two reasons: first, the full package of ‘judicial’ laws had already been enacted in Poland, so there was no uncertainty about the fate of the laws initially vetoed by the president. Second, the recommendation accompanied the ‘reasoned proposal’ by the Commission made within Article 7 (1) TEU, and was in a functional relationship with the proposal, so it is worth summarizing all seven specific recommendations made on 20 December 2017. The first three (p.221) concerned the judiciary package: in the law on the SC, the president’s discretionary power to prolong the judicial term of office was to be removed; regarding the KRS, the judges-members should be elected by their peers and the terms of office of the current members are not to be terminated; actions and public statements that may further undermine the legitimacy of the courts and judges should be discontinued. The second four recommendations referred to the earlier documents by the Commission, but none of the actions recommended in its earlier recommendations was taken. They concerned the CT (the independence and legitimacy of which is to be restored, meaning the removal of the quasi-judges and inclusion of the three judges properly elected); all the CT judgments are to be published and implemented fully, and the laws on common courts and on the National School of Judiciary are to be withdrawn or deeply amended. The final recommendation called on the government to ‘ensure that any justice reform upholds the rule of law and complies with EU law and the European standards on judicial independence’.140

With each subsequent recommendation, the tone of the Polish government’s official replies grew harsher, and its intransigence in asserting that Poland was a land with an exemplary rule of law became firmer. After the second recommendation, which, as we have just seen, was mainly focused on the CT, the government asserted (in its letter of 20 February 2017) that the new laws on the CT of November and December 2016 ‘comply with European standards regarding the functioning of constitutional courts’.141 This was, one should remember, after a PiS majority captured the CT (thanks to the inclusion of quasi-judges and the irregular appointment of Ms Przyłębska as the president). And at that time, some critical judgments of the ‘old’ CT still remained unpublished and unimplemented. In its response of 29 August 2017 to the third recommendation, the government (in the words of the minister for foreign affairs statement) accused the Commission of ‘interference with the ongoing legislative process in Poland’, of using ‘a language of ultimatums’, and of a ‘lack of understanding of the fundamental, substantive aspects of the reform [of the judiciary]’.142

It was clear that the government was not going to make any concessions regarding its legislative package on the judiciary, and claimed, falsely, that the ‘intended changes regarding … organization of the judiciary are in line with European standards’.143 The government insisted, above all, that the organization of national judiciaries is a purely internal competence—a point that ignored the fact that national judges are, in an important sense, EU judges because they apply EU law directly and therefore must not be subject to political interference by national governments. In an act of argumentative overkill, however, the government of Poland kept insisting at the same time that its ‘reforms’ do not restrict judicial independence and that, whether they do or not, is none of the EU’s business.

Reversing the trend for ever-hardening language, the Polish government’s response to the fourth recommendation was the most conciliatory of all, perhaps because it was at the same time a reply to the activation of the Article 7 procedure, and (p.222) the new government in Warsaw, headed by Mateusz Morawiecki (represented in Poland as more pragmatic and less dogmatic than his predecessor, Beata Szydło), needed to lay the groundwork for its subsequent performance in the process that was officially initiated. The launching of the Article 7 procedure was characterized by Poland as ‘essentially political, not a legal one’,144 and was accompanied by a threat that it will put ‘an unnecessary burden on our mutual relations, which may render it difficult to build understanding and mutual trust between Warsaw and Brussels’. As one can see, the government consistently viewed the ‘problem’ as a bilateral matter between Warsaw and Brussels, rather than a multilateral one between the Polish government and the remaining member states of the EU. The government reconfirmed that it would go ahead with its ‘reforms’ of the judiciary (‘we owe it to our voters’), but at the same time tried to strike a conciliatory note, pointing out some changes to the legislative package made in response to earlier recommendations, such as: introducing the same retirement age for judges of both genders, abandoning the automatic dismissal of all judges of the SC, strengthening of the role of the president in judicial appointments, and changing the required majority for election of judges to the KRS from a simple majority to three-fifths.

Of all these changes, only the equalization of retirement age for men and women was more substantial than cosmetic, but at the same time it was the least politically sensitive and the least costly for PiS. All other changes were cosmetic. The executive branch (fully controlled by PiS) maintained its decisive role in determining which judges of the SC aged over 65 could carry on judging, except that the decision had been transferred from MJ to the president. The three-fifths threshold for electing judges-members of the KRS was inconsequential once PiS was confident as to the support from its parliamentary ally, the Kukiz-15 party, and in view of a proviso that if the use of the three-fifths majority did not result in the filling of all fifteen judicial positions, a simple majority would be applied.

Article 7: Adding Bite to a Bark

The sanctioning mechanism had already been introduced in the Amsterdam Treaty, well before preparations for eastward enlargement of the EU got underway. And yet, at that stage, Article 7 (in its earlier iteration, confined to the sanctioning mechanism only) was already occasionally viewed in the context of the prospect of enlargement.145 But, especially after the Haider debacle of 2000 when the article was not activated at all (sanctions were undertaken individually by fourteen EU member states, and were followed by a report from ‘three wise men’—a mechanism unknown to Article 7), it became clear that the ‘nuclear option’ of suspending voting rights in the Council was so radical that it was wildly unrealistic.

At this stage, the accession of candidate states from CEE became a realistic prospect. The addition of a second, more moderate and hence realistic, mechanism (p.223) to Article 7 by the Treaty of Nice, known as the preventive mechanism (for the determination of a clear risk of a serious breach of EU values, not followed by any other sanctions) could therefore be seen, apart from everything else, as an act in which the EU was equipping itself with the means to properly respond to violations of fundamental values of the EU (i.e. those later codified in Art. 2 of the Lisbon Treaty; in its previous, paler version, Art. 6 of the Amsterdam Treaty) in the face of accession of states with low credibility in the areas of democracy, human rights, and the rule of law. And there is indeed some evidence that this is the way the enhancement of Article 7 was actually seen by the EU decision-makers at the time.146 Soon after the Nice Treaty, the Commission issued an important communication on ‘Respect for and promotion of the values on which the Union is based’, in which it stated quite unambiguously that ‘at a time when the Union is about to enter on a new stage of development, with the forthcoming enlargement and the increased cultural, social and political diversity between Member States that will ensue, the Union institutions must consolidate their common approach to the defence of the Union values’.147 Article 7, as enhanced in Nice, was explicitly described as a mechanism for such a ‘defence’.

But it is one thing to say that the enhancement of Article 7 with a less radical option rendered the use of the mechanism more palatable, and another thing to say that such a use was to be contemplated lightly. In fact, there are at least seven (an appropriate number in this context) important reasons why the EU member states and institutions would be strongly reticent to the use of Article 7, in either of its versions, whether sanctioning or merely ‘naming and shaming’. First, it is still a blunt instrument (even in its weaker, ‘preventive’ version), in a community that avoids harsh language and sanctions directed at its own members. Voting against a fellow, member state (and note that every Article 7 pathway envisages, at a certain point, votes by other member states in the Council) is politically costly and may easily be portrayed as a case of hostility towards the nation concerned, rather than vis-à-vis the government of the breaching state. Second, it is a political instrument par excellence—in a community that is deeply legalized and where legal remedies are privileged vis-à-vis political measures. For example, a paradigmatic procedure favoured by the EU is that the CJEU has the last word on any given dispute, as in infringement actions brought by the Commission.

Third, the treaty requirement for the EU to respect ‘national identities inherent in [member states’] fundamental structures, political and constitutional’ (Art. 4(2) TEU) may be seen to impose some constraints upon a collective call to action to an individual Member State to align itself to a common European constitutional architecture. The consequence of that argument is that Article 4(2) would effectively render Article 2 (in conjunction with Art. 7) meaningless. The argument, while seductive, is weak even as a matter of textual interpretation of the treaty: the Article 2 values are not closely replicated in Article 4(2)’s features of ‘national identities’. Democracy, human rights, the rule of law and other values listed in Article 2 (p.224) are said to be ‘common to the Member States’ and as such, do not belong to the scope of features covered by separate ‘national identities’, which might be read as giving effect to some iconoclastic readings of democracy, etc. In addition, in contrast to Article 4, Article 2 is explicitly cross-referenced in Article 7, which supplies an enforcement mechanism.

Fourth, there has been a view popular among EU decision-makers and scholars that Article 7 was never actually intended to be used, and that its role is epitomized by symbolism and deterrence; the popular metaphor of a ‘nuclear option’ has reinforced this perception (the strategic role of nuclear weapons could be seen not in their use but in their very existence). Fifth, the procedures for bringing an Article 7-based action to fruition are almost grotesquely complicated and excessively demanding; hence, there is a strong disincentive to embark upon a road that is unlikely to lead to its destination. Sixth, there is always a lingering anxiety, in the collective European memory, that something like the 2000 response—now widely discredited—to the Haider affair may be repeated, notwithstanding the fact that the diplomatic response at the time was not an action taken by the EU but by individual member states.

Seventh, and perhaps most importantly, picking on certain member states may be viewed as a case of double standards and hypocrisy. No EU member state is immune from charges of transgressing the values proclaimed in Article 7: consider the human rights violations by the United Kingdom in the Iraq war, and attacks on media freedom and pluralism elsewhere, the removal of EU citizens of Roma background from a national territory, various legislative provisions allowing excessive governmental interference with independent authorities as well as with courts, etc. Almost every single constitutional ‘sin’ committed by Hungary and Poland has been prefigured, or echoed, by some other EU Member State. But the cumulative effect of all these actions, as documented throughout this book, matters a great deal and renders Poland and Hungary qualitatively different. That is why the activation of the Article 7 procedure (even with uncertain prospects for its completion) towards these two countries, at long last, was badly needed. The EU cannot look the other way when, for the first time in its history, two of its member states are manifestly sliding into illiberal, authoritarian regimes.

Once this fundamental choice is made, there must be a pragmatic judgment about the path to be taken. That selection should be informed by considerations of expediency: which of the roadmaps designed in Article 7 is the most realistic, while at the same time maximizes the clout of ‘naming and shaming’? Clearly, the ‘preventive’ pathway of section 1 is much more likely to succeed than the ‘sanctioning’ mechanism of sections 2 and 3 combined, since the former does not require, at any of its stages, unanimity. And even though ‘a clear risk of a serious breach’ is a weaker characterization than the existence of ‘a serious and persistent breach’, the reputational penalty is quite harsh.

(p.225) Launching of the Article 7 Procedure Regarding Poland

The Commission adopted a reasoned proposal in accordance with Article 7(1) TEU, regarding ‘a clear risk of a serious breach’ of the rule of law in Poland, on 20 December 2017.148 Interestingly, the launch of the Article 7 procedure against Hungary occurred much later, on 12 September 2018, and along a different pathway, namely via the European Parliament rather than the Commission. The launch of the procedure against Hungary may have, paradoxically, both strengthened and weakened the case against Poland at the same time. It strengthened it by showing that the Commission is not biased against Poland, as governmental propaganda has claimed, but instead treats similar cases the same. It weakened Poland’s case because it solidified a Polish-Hungarian alliance against EU ‘interference’, and gave these two governments extra incentives to seek supporters for resistance elsewhere in the European political ecosystem.

As a starting point for its proposal, the Commission observed that, within a period of two years, more than thirteen consecutive laws had been adopted affecting the entire structure of the justice system in Poland: the CT, the SC, the ordinary courts, the KRS, the prosecution service and the National School of Judiciary:

The common pattern of all these legislative changes is that the executive or legislative powers have been systematically enabled to interfere significantly with the composition, the powers, the administration and the functioning of these authorities and bodies.149

According to the Commission, these changes and their combined effects put the independence of the judiciary and the separation of powers in Poland at serious risk, which are key components of the rule of law.150

The Commission also observed that such intense legislative activity had been conducted without proper consultation of all stakeholders concerned, without the spirit of loyal cooperation required between state authorities, and without consideration for opinions from a wide range of European and international organizations. Most importantly perhaps, certainly from a rule of law perspective, these changes may be incompatible with the Polish Constitution. Effective constitutional review of these laws, however, is no longer possible in Poland.151 There is a note of exasperation in the passage in which the Commission recalls that ‘[d]espite the issuing of three Recommendations by the Commission, the situation has deteriorated continuously’.152 But overall, the tone of the document is matter of fact, measured and rather restrained.

The Commission’s decision to activate Article 7(1) TEU was positively received by a number of EU law scholars. Kim Lane Scheppele and Laurent Pech expressed the view that, although it was section 1 of Article 7 that was cited, Poland (p.226) was already in fact ‘far into the territory of Article 7(2)’, that is, it is not ‘at risk of breach’, but rather ‘has already breached the basic principles of the EU on multiple fronts’.153 Those same authors, in another piece co-authored by Dimitry Kochenov, brought a perspective of a multi-speed Europe into the picture, which may ‘provide the perfect opportunity to leave behind states that are unwilling to fully adhere to basic principles’.154 They went on: ‘If the EU proves unable to rein in autocrats any other way, the incorporation of conditionality techniques into policing each of the integration’s concentric circles is likely to become a necessary element of the edifice.’155 The actual activation of Article 7 vis-à-vis Poland may be seen as an instrument of such ‘policing’ and, ironically, it may therefore be seen as ‘the most realistic way forward to preserve the EU as a union of value in the long run, while also being sufficiently open towards the states hijacked by autocratic and plutocratic forces’.156

Having made the proposal, the Commission placed the task of further proceedings upon the Council: ‘The ball is no longer in the Commission’s court. It has been formally passed to the Council’.157 But that, as T.T. Koncewicz pointed out, does not mean the end for the Commission’s role, and ‘dialoguing’ must go on. ‘[T]he Commission is now bound to act positively, rather than look back, not to mention entertaining any thoughts of backtracking on its reasoned proposal to trigger Art. 7 TEU.’158

As part of its counter-attack to the launching of the procedure, the Polish government produced a White Paper that was meant to be a comprehensive (89-page) response to accusations regarding the reforms of the judiciary, submitted to Brussels in March 2018.159 In response to the response, the Association of Polish Judges (Iustitia) prepared, and also submitted in Brussels, its own critical analysis of the governmental document, of equal length and attention to detail.160

There have been two Council hearings so far, following the course of the procedure provided by Article 7 in July and September 2018. The hearings proceeded on the same pattern: the commission produced increasingly damning evidence about violations of the rule of law in Poland, and the government responded with exactly the same defensive arguments, reflecting a mix of self-righteousness and indignation.

Just to give a sense of the nature of the ‘dialogue’: before the hearing of 18 September, both the Commission and Polish government presented their Opinions and arguments in writing. The Commission focused first on the changes to the law on the SC that had by that time entered into force (on 9 August 2018). The Commission emphasized that the April and May 2018 amendments to the law did not allay the Commission’s concerns about the newly established, retroactive retirement regime. This applied, in particular, to the position of chief justice, but also to the twelve other judges who were at risk of forced retirement unless the president consented to their requests to continue in their positions. The Commission’s Opinion also mentioned that ‘the pace of implementation of the retirement regime has so far not been affected by the SC’s requests to the Court of Justice of the EU (p.227) for a preliminary ruling’.161 The Commission also lamented the quick process of appointing new judges, as well as the procedure of electing the judges-members of the KRS. The new judges appointed to the SC ‘appear to be closely linked to the executive and the ruling party’,162 which in the eyes of the Commission ‘confirms the risk of politicisation’.163

Further, the Commission depicted the situation of the common courts under the new law of 20 July 2018, which does ‘not address the key concern which is that the current ordinary court judges still have no right to serve their full term as originally established’.164 The Commission also expressed its concern about the mass dismissal of presidents and vice-presidents of courts by the MJ,165 and criticized the new disciplinary regime for judges.166 At the end of the document, the Commission reminded Poland that the situation with the CT has not changed since Ms Przyłębska became its president.

For its part, the government maintained that everything is in good order: that under Polish law the president has always enjoyed ‘the sole competence to appoint judges’ (forgetting, conveniently, that in this competence the president is bound by recommendations of the KRS, so the composition of the KRS is of critical importance); that Chief Justice Gersdorf actually retired as of 4 July because she failed to ask the president for consent to her continued service, while a number of other SC judges did ask for such consent; and that the lowering of the retirement age for SC judges did not interrupt their term of office because no such term exists and judges are appointed for an indefinite period.167 As far as the charge of the politicization of the KRS is concerned, the government retorted that the members of that council enjoy ‘very wide guarantees of independence, insulating them from political influence’.168 The KRS is still predominantly composed of judges; though the fact that the ruling party elects them was not mentioned. When it came to the common courts, the government’s document defended the MJ’s right ‘to change the structure of ordinary courts’,169 while when it came to the disciplinary regime for judges, the government reminded the commission that ‘all disciplinary verdicts remain at the hands of the judiciary’170. This is true, but ignores the fact that the MJ determines all the central positions in the disciplinary structure. And judging by established patterns, this sort of dialogue de sourds is to continue.

Policing Member States: New Ideas

As the overview provided in this chapter shows, the EU is not quite toothless when it comes to violations of the rule of law and democratic standards in its member states, and its actions taken towards Poland indicate that there is a range of tools that can be applied. Their efficiency is another matter, and in the Polish case it is simply too early to tell, but the Commission’s infringement actions before the CJEU, the preliminary reference addressed to the EU either by Polish courts or (p.228) by courts from the other countries (such as Ireland), the rule of law framework, and the Article 7 procedure between them present a rich toolkit with which to address the problems arising out of a member state openly flouting common values and standards. And it is not a full list: there have been a number of debates within the European Parliament (beginning with a debate as early as 19 January 2016, a few days before the launching of the rule of law framework by the Commission), with all the main parliamentary groupings except for the European Conservatives and Reformists taking the Commission’s side against the Polish government. These debates, with resolutions criticizing the Polish government, were repeated on 12 April and 14 September 2016, 15 November 2017 and 1 March 2018.171

The Polish, and earlier the Hungarian, cases of a slide towards authoritarianism by a Member State, have stimulated a rich scholarly debate, and many observers have put forward some inventive, often ingenious, proposals going beyond the triad of regular infringement actions, the rule of law framework, and Article 7. One of the best known proposals put forward by Kim Lane Scheppele was the ‘systemic infringement action’. Such an action would allow the Commission to ‘bundle together a set of infringing practices of an offending Member State’.172 As a consequence, the CJEU would be able to impose a fine, as provided for in Article 260 TFEU, and it may justify the cancellation of the payment of EU funds. In Scheppele’s view, no treaty change is necessary for such an instrument and a mechanism of sanctions may be established through secondary law.

The innovative aspect of the proposal is that the infringement procedure can have both a systemic element and may be used along the lines of conventional infringement actions. As the author of the proposal says:

Unlike the usual infringement procedure in which narrowly focused elements of Member State action are singled out for attention one at a time, a systemic infringement procedure would identify a pattern of state practice that, when the individual elements are added up, constitute an even more serious violation of a Member State’s fundamental EU obligations than the individual elements, taken separately … By using the common infringement procedure in new ways, the Commission would be deploying a tried and true instrument but using this familiar method to achieve a more ambitious purpose.173

As Scheppele added, ‘Ordinary infringement actions are important, but they are often too narrow to address the structural problems which persistently noncompliant states pose.’174

Some scholars expressed a sceptical view that, given the current attitude of the Commission, it is unlikely that it will bring actions to the CJEU based on broad Article 2 values. Dimitry Kochenov believes that Scheppele’s ‘proposal, although legally sound, is unlikely to be employed in practice unless the Commission changes its counterproductive and artificially narrow approach to the scope of Article 258 (p.229) TFEU and the enforcement of values more generally’.175 Kaarlo Tuori expresses his doubts as to whether ‘the generic values enshrined in Article 2 TEU could give rise to justiciable Member State obligations, the breach of which could lead to an infringement action by the Commission’.176

One may indeed discern a degree of fuzziness and vagueness in values, such as those proclaimed in Article 2, which do not lend them to enforcement through a standard infraction mechanism before the CJEU.177 On the other hand, there has been a critical mass of opinions expressing how the Commission and the CJEU should provide effective enforcement based directly (and perhaps exclusively) on Article 2. As an editorial comment of the respected Common Market Law Review put it, ‘the Treaties neither restrain nor exclude the Court of Justice’s jurisdiction in relation to Article 2 TEU’.178 Christophe Hillion expressed the same view, pointing out that ‘[t]he only express limitation to the Commission’s enforcement powers concerns the Common Foreign and Security Policy (CFSP), as set out in Article 24(1) TEU’.179 And one may add that a welcome by-product of the direct enforcement of Article 2 through a classic infraction mechanism would be to provide the CJEU with the opportunity to clarify the values proclaimed by Article 2, thus contributing to the development of EU law.180

Another doctrinal innovation, proposed by Armin von Bogdandy and his collaborators, was the so-called Reverse Solange doctrine.181 The doctrine ‘aims to empower individuals to challenge domestic exercises of public authority which deprive him or her of the substance of a fundamental right in cases of systemic deficiency’.182 According to its authors, a serious violation of a fundamental right of a citizen by a member state can be considered as constituting an infringement of the substance of EU citizenship. Hence, ‘beyond the scope of Article 51(1) CFR, Member States should remain autonomous with respect to fundamental rights protection as long as (“solange”) it can be presumed that they secure the essence of the fundamental rights enshrined in Article 2 TEU’. This presumption is rebutted, however, in the event ‘of a violation which is considered systemic’, and in such cases ‘individuals may rely on their status as Union citizens to seek redress before national courts’.183

The proposal prompted some criticism. One particularly sharp critique was raised by Kaarlo Tuori who expressed his scepticism about ‘such a significant constitutional change as an extension of Union fundamental rights jurisdiction to autonomous Member State activity’. As Tuori recalled, ‘The German Constitutional Court … as the most important national interlocutor of the ECJ, has been quick to react to what it has considered threatening signs of the ECJ expanding its fundamental rights jurisdiction and to issue a reminder of the potential use of its ultra vires review.’184 Kochenov raised a different objection by pointing out that, correctly in my view, some serious and systemic defects in the rule of law in a member state need not necessarily register in the sphere of fundamental rights. In Kochenov’s words, ‘a well-executed dismantlement of the Rule (p.230) of Law and the constitutional checks and balances can happen—or at least go through crucial initial stages—without bald violations of human rights’.185 This, one may add, is precisely the case of Poland, as this book attempts to show. If such a combination of systemic breaches of the rule of law with relatively minor violations of fundamental rights occurs, the Reverse Solange doctrine is unhelpful, and the use of systemic infringement actions combined with the Article 7 (and with the rule of law framework as a pre-Article 7) is preferable. This of course does not detract from the fact that if serious violations of fundamental rights occur, measured for instance by the standards elaborated by the ECtHR, something like a ‘reverse Solange’ may be one of a number of appropriate doctrinal instruments to be employed.

Another innovative institutional idea came from political scientist Jan-Werner Müller, who proposed ‘to create an entirely new institution that could credibly act as a guardian of Europe’s acquis normative’.186 The institution was to be called a ‘Copenhagen Commission’, with an allusion to the Copenhagen criteria, and is conceived as analogous to the VC—a body with a mandate and competence to offer comprehensive and consistent political evaluations. Müller imagined the institution to be composed of legal experts and statespersons with a proven track record of political judgment, and who would be empowered to ‘trigger a mechanism that sends a clear signal (not just words), but far short of the measures envisaged in Article 7’.187 Based on the advice of the Copenhagen Commission, the EC could then impose significant financial penalties. According to Müller, the Copenhagen Commission would constitute an entirely new institution established through treaty revision and equipped with sanctioning powers.

In the subsequent paper, Müller developed the project further, and considered some possible objections, including that of duplicating the institutions already in place, especially the CoE institutions such as the VC and possibly the ECtHR. But ‘the EU has reached a depth and density of integration that has no parallel in the Council of Europe’, Müller observed, and added:

the Council [of Europe] also contains members who would probably have had a hard time meeting even the fuzziest or most consciously relaxed Copenhagen criteria. This fact does not impugn the work of the ECtHR or the Venice Commission, but the problem of double standards … would be exacerbated even further.188

When it comes to the CoE’s judicial body, ‘the European Court of Human Rights can only properly address individual rights violations, whereas the Copenhagen Commission should take a more holistic view; the Venice Commission cannot be proactive, whereas the Copenhagen Commission could routinely monitor the situation in Member States and raise an alarm without having to be prompted’.189

(p.231) The proposal raised mixed reactions. While Kochenov applauded it as potentially an important step towards establishing an independent monitoring mechanism and an early warning system, he expressed doubts as to whether the member states already ‘experiencing problems with Article 2 TEU compliance’ would agree to it. He also had qualms about ‘further complicating the institutional structure of the Union, as well as, fundamentally, the mechanics of the actual enforcement of the decisions of the Copenhagen Commission’.190 Kaarlo Tuori, a leading member of the VC himself, raised the issue of duplication with the VC, and notwithstanding Müller’s protests. Tuori reminded Müller that ‘The Venice Commission is … completely capable of assisting the EU within the new Framework. There are no formal obstacles to supporting the Framework, either: the Statute of the Venice Commission permits the Union to request opinions.’191

Tuori’s criticisms do not, however, seem to be well founded. As much as the VC has played an invaluable role, including in Poland, and with due regard to Tuori’s reminder that the VC can be activated by the EC as well, an EU-embedded institution may be able to better establish when rule of law deficiencies acquire a systemic character. On this basis, Armin von Bogdandy and his collaborators put forward a variation on the Copenhagen Commission theme, namely the idea of a Systemic Deficiency Committee. Behind this rather unattractively named institution, is a body that, in the vision of its proponents, would not require a treaty change, in contrast to Müller’s Copenhagen Commission.192 The body would be strictly aligned with the Rule of Law Framework, and be ‘composed of eminent figures appointed by the EP and the Council. As foreseen in the Rule of Law Framework, the Systemic Deficiency Committee should build on the already existing expertise of the FRA, the Venice Commission, and the ECtHR in particular’.193 According to von Bogdandy, Antpöhler, and Ioannidis, the new Systemic Deficiency Committee ‘should supervise the compliance of Member States with all the values of Article 2 TEU and issue a public report in case of a threat as part of its supervisory jurisdiction. This report would trigger the activation of the Framework by the Commission.’194

As one can see, there has not been a scarcity of innovative institutional and doctrinal proposals sparked by the descent of some EU Member States into authoritarianism, populism, or ‘illiberal democracy’. They are all a matter for the future, but for now there is one other obvious means which the EU institutions have at their disposal in policing the state of the rule of law in member states: financial sanctions. A number of politicians and scholars, including the EU Commissioner for Justice Vera Jourová, have proposed strengthening the rule of law conditionality attached to funding. These proposals have been made in the context of preparation for the next multi-annual EU budget 2021–7 and, predictably, provoked strong criticism from the governments of Poland and Hungary. As Commissioner Jourova said, ‘We need to make better use of EU funds for upholding the rule of (p.232) law … In my personal view we should consider creating stronger conditionality between the rule of law and the cohesion funds.’195

These voices gained in frequency and prominence, and further authoritarian steps in Poland and Hungary have raised more concerns in other EU states. For instance, French Foreign Minister Jean Yves Le Drian named Poland and Hungary as the EU states that do not respect fundamental principles, and added: ‘We are not ready to continue paying for this Europe, this must be said clearly.’196 The cuts would be a significant cost to the PiS government: Poland is now a recipient of huge transfer funds. As R. Daniel Kelemen and Kim Lane Scheppele noted, ‘the EU finds itself in the perverse situation of providing some of the largest transfers of funds to those governments which most prominently thumb their nose at its democratic and rule-of-law norms’.197 They also point out that, even without rolling out a new conditionality policy, the EU already has a number of mechanisms to use financial penalties at its disposal, for instance by using the Common Provision Regulations in dispensing structural and investment funds. Of course, for the Polish opposition (NGOs and independent officials such as the Ombudsman) to support such sanctions is a very delicate and uncomfortable situation, and most of them do not. But it is quite probable that a financial stick will be used against Poland if the carrot does not turn out to be an effective incentive for respecting the rule of law.

Conclusion

Some years ago Gráinne de Búrca said that, by including Article 7 in the Amsterdam Treaty, ‘the EU was asserting its own virtue and the virtue of its existing members, while simultaneously sending a note of warning to the new and future candidate States to the east’.198 De Búrca’s references to virtue are perfectly appropriate: if we take the values that underlie European political integration seriously, then we must also be committed to the virtues displayed by people espousing democracy, human rights, and the rule of law. And, one may add, if the EU puts highly demanding conditions regarding the rule of law and democracy before candidate states, it should apply the same conditions to its member states. If we see Article 7 (as I just argued we should) as an important aspect of the EU’s constitutional structure, in conjunction with all the other procedures, instruments, and institutions discussed in this chapter, we must be committed to invoking it whenever there is reasonable suspicion that those values are seriously endangered. This time is now, and we find ourselves faced with an important test: either we take constitutional virtues seriously (to use Professor de Búrca’s language), or we fall back into the cynical, nihilist view that a constitution really does not matter. If this is to be the case, the (imperfectly codified) constitution of Europe would be bereft of all value. Do we want to belong to such a union? A famous maxim by Groucho Marx applies: ‘I don't care to belong to a club that accepts people like me as members’.

(p.234)

(p.235)

(p.236)

(p.237)

(p.238)

(p.239)

(p.241)

Notes:

(1.) I have recently sketched my opinion in Wojciech Sadurski, ‘That Other Anniversary (Guest Editorial)’ (2017) 13 European Constitutional Law Review 417. For a more extended analysis of Art. 7 and its potential use in policing democratic practices in EU member states, see Wojciech Sadurski, ‘Adding Bite to a Bark: The Story of Article 7, E.U. Enlargement, and Jörg Haider’ (2010) 16 Columbia Journal of European Law 385.

(2.) ‘Position of the Government of Poland on matters related to the amendments to the law on the constitutional court and judgments of the constitutional tribunal of Poland of 3 and 9 December 2015 (cases no. 34/15 and 35/15)’ Strasbourg, 22 February 2016, cdl-ref(2016)015.

(3.) Opinion on amendments to the act of 25 June 2015 on the Constitutional Tribunal of Poland adopted by the Venice Commission at its 106th plenary session, Venice, 11 March 2016, Opinion no. 833/2015, cdl-ad(2016)001.

(4.) Ibid. para. 45.

(5.) Ibid. para. 79.

(6.) Ibid. paras 111–14.

(7.) Ibid. para. 118.

(8.) Ibid. para. 138.

(9.) Ibid. para. 13.

(10.) Opinion on the act of 15 January 2016 amending the police act and certain other acts adopted by the Venice Commission at its 107th plenary session (Venice, 10–11 June 2016), Strasbourg, 13 June 2016, Opinion no. 839/ 2016, cdl-ad(2016)012.

(11.) Ibid. paras 66–74.

(12.) Ibid. paras 77–9.

(13.) Ibid. para. 88.

(14.) Ibid. paras 94–7.

(15.) Ibid. para. 133.

(16.) Opinion on the act on the public prosecutor’s office as amended adopted by the Venice Commission at its 113th plenary session (Venice, 8–9 December 2017), Strasbourg, 11 December 2017, Opinion no. 892/2017, cdl-ad(2017)028.

(17.) Ibid. para. 24.

(18.) Ibid. para. 93.

(19.) Ibid. para. 95.

(20.) Ibid. para. 99.

(21.) Ibid. para. 112.

(22.) Ibid. para. 130.

(23.) Opinion on the draft act amending the act on the National Council of the Judiciary, on the draft act amending the act on the Supreme Court, proposed by the President of Poland, and on the act on the organization of ordinary courts adopted by the Venice Commission at its 113th plenary session (8–9 December 2017), Strasbourg, 11 December 2017, Opinion no. 904 / 2017, cdl-ad(2017)031, para. 131.

(24.) Baka v. Hungary App No. 20261/12 (ECHR Grand Chamber, 23 June 2012).

(25.) MA v. Poland (App. No. 42902/17), MK v. Poland (App no. 40503/17), and DA v. Poland (App no. 51246/17).

(26.) App No. 42902/17, lodged on 16 June 2017, communicated on 3 August 2017.

(27.) Communication of 3 August 2017, Question 1.

(28.) Ibid. Question 4.

(29.) Ibid. Question 6.

(30.) App No. 30491/17 and 31083/17 (ECHR 20 September 2018).

(31.) Ibid. para. 61.

(32.) Ibid. para. 70.

(33.) Ibid. para. 70.

(34.) Ibid. para. 112.

(35.) Ibid. para. 113.

(36.) Ibid. paras 123–5.

(37.) Ibid. para. 126.

(38.) Jernej Letnar Černič, ‘Impact of the European Court of Human Rights on the Rule of Law in Central and Eastern Europe’ (2018) 10 Hague J Rule Law 111, 130.

(39.) Lena Kolarska-Bobińska, ‘The EU Accession and Strengthening of Institutions in East Central Europe: The Case of Poland’ (2003) 17 EEPS 91, 95.

(40.) These figures were provided by Professor Lena Kolarska-Bobińska in an interview ‘Unia—szanse na reformę państwa’ Gazeta Wyborcza (Warsaw, 3 August 2003) 5.

(41.) See in particular Dimitry Kochenov, EU Enlargement and the Failure of Conditionality (Kluwer Law International 2008).

(42.) See Wojciech Sadurski, Constitutionalism and the Enlargement of Europe (OUP 2012) 148–55.

(43.) Ivan Krastev, ‘The Strange Death of the Liberal Consensus’ (2007) 18 Journal of Democracy 56, 56.

(44.) Charlemagne, ‘Europe’s Marxist Dilemma’ The Economist (London, 26 April 2008) 46.

(45.) Philip Levitz and Grigore Pop-Echeles, ‘Why No Backsliding? The European Union’s Impact on Democracy and Governance before and after Accession’ (2010) 43 Comparative Political Studies 457, 462.

(46.) Grigore Pop-Echeles, ‘Between Historical Legacies and the Promise of Western Integration: Democratic Conditionality after Communism’ (2007) 21 EEPS 142, 150.

(47.) Michael Blauberger and R. Daniel Kelemen, ‘Can Courts Rescue National Democracy? Judicial Safeguards against Democratic Backsliding in the EU’ (2017) 24 Journal of European Public Policy 321, 325.

(48.) Judith Sargentini and Aleksejs Dimitrovs, ‘The European Parliament’s Role: Towards New Copenhagen Criteria for Existing Member States?’ (2016) 54 Journal of Common Market Studies 1085, 1088.

(49.) See Kim Lane Scheppele, ‘Making Infringement Procedures More Effective: A Comment on Commission v. Hungary Case C-288/12 (8 April 2014) (Grand Chamber)’ (EUtopia Law, 29 April 2014) <eutopialaw.com/2014/04/29/making-infringement-procedures-more-effective-a-comment-on- commission-v-hungary-case-c-28812-8-april-2014-grand-chamber/> (accessed 10 July 2017).

(50.) See Dimitry Kochenov and Laurent Pech, ‘Better Late than Never? On the European Commission’s Rule of Law Framework and its First Activation’ (2016) 54 Journal of Common Market Studies 1062.

(51.) Ibid. 1066.

(52.) Judgment of Ms Justice Donnelly delivered on 12 March 2018, The Minister for Justice and Equality and Artur Celmer, [2018] IEHC 119, High Court Record No. 2013 EXT 295, Record No. 2014 EXT 8, Record No. 2017 EXT 291.

(53.) Ibid. para. 1.

(54.) Ibid. paras 50–97.

(55.) Ibid. para. 127.

(56.) C404/15 and C659/15 PPU, EU:C:2016:198.

(57.) Judgment (n. 52), para. 141.

(58.) Ibid. para. 142.

(59.) Tomasz Tadeusz Koncewicz, ‘The Consensus Fights Back: European First Principles Against the Rule of Law Crisis (part 1)’ (VerfBlog, 5 April 2018) <https://verfassungsblog.de/the-consensus-fights-back-european-first-principles-against-the-rule-of-law-crisis-part-1/> (accessed 20 April 2018).

(60.) Petra Bárd and Wouter van Ballegooij, ‘Judicial Independence as a Precondition for Mutual Trust’ (VerfBlog, 10 April 2018) <https://verfassungsblog.de/judicial-independence-as-a-precondition-for-mutual-trust> (accessed 25 April 2018).

(61.) Michal Dorociak and Wojciech Lewandowski, ‘A Check Move for the Principle of Mutual Trust from Dublin: The Celmer Case’ (European Forum, 25 July 2018) <http://europeanpapers.eu/en/europeanforum/check-move-for-principle-mutual-trust-celmer-case> (accessed 11 September 2018).

(62.) Opinion of 28 June 2018 of the Advocate General, Case C-216/18 PPU, ECLI:EU:C:2018:517.

(63.) Ibid. para. 44.

(64.) Ibid. para. 45, emphasis in original.

(65.) Ibid. para. 81.

(66.) Opinion of 28 June 2018 of the Advocate General (n. 62) para. 90.

(67.) C-64/16.

(68.) Opinion of 28 June 2018 of the Advocate General (n. 62) para. 91.

(69.) Petra Bárd and Wouter van Ballegooij, ‘The AG Opinion in the Celmer Case: Why Lack of Judicial Independence Should Have Been Framed as a Rule of Law Issue’ (VerfBlog, 2 July 2018) <https://verfassungsblog.de/the-ag-opinion-in-the-celmer-case-why-lack-of-judicial-independence-should-have-been-framed-as-a-rule-of-law-issue/> (accessed 26 July 2018).

(70.) Michal Krajewski, ‘The AG Opinion in the Celmer Case: Why the Test for the Appearance of Independence is Needed’ (VerfBlog, 5 July 2018) <https://verfassungsblog.de/the-ag-opinion-in-the-celmer-case-why-the-test-for-the-appearance-of-independence-is-needed/> (accessed 20 August 2018).

(71.) Judgment of the Court of Justice of 25 July 2018, C-216/18 PPU, ECLI:EU:C:2018:586.

(72.) Ibid. para. 34.

(73.) Ibid. para. 36, emphasis added.

(74.) Ibid. para. 37, emphasis added.

(75.) I owe this observation to Laurent Pech.

(76.) Judgment (n. 71) para. 48, emphasis added.

(77.) Ibid. para. 60.

(78.) Ibid. para. 61.

(79.) Ibid. para. 61.

(80.) Ibid. para. 60.

(81.) Ibid. para. 68.

(82.) I owe this observation to Laurent Pech.

(83.) Judgment (n. 71) paras 49–54, 63–4.

(84.) Ibid. para. 67.

(85.) This point is made by Petra Bárd and Wouter van Ballegooij, ‘The CJEU in the Celmer case: One Step Forward, Two Steps Back for Upholding the Rule of Law Within the EU’ (VerfBlog, 29 July 2018) <https://verfassungsblog.de/the-cjeu-in-the-celmer-case-one-step-forward-two-steps-back-for-upholding-the-rule-of-law-within-the-eu/> accessed 20 August 2018.

(86.) European Commission v. Republic of Poland, Action brought on 20 July 2017, European Commission v. Republic of Poland, Case 441/17.

(87.) L’ordonnance du Vice-Président de la Cour, 27 juillet 2017, dans l’affaire 441/17 [The order of the Vice-President of the Court in the Case 441/17 of 27 July 2017].

(88.) See Robert Grzeszczak and Ireneusz Pawel Karolewski, ‘Bialowieza Forest, the Spruce Bark Beetle and the EU Law Controversy in Poland’ (VerfBlog, 27 November 2017), <https://verfassungsblog.de/bialowieza-forest-the-spruce-bark-beetle-and-the-eu-law-controversy-in-poland/> (accessed 10 December 2017).

(89.) Order of the Court of Justice of 20 November 2017, C441/17, Commission v. Republic of Poland, ECLI:EU:C:2017:877.

(90.) Opinion of Advocate General Bot of 20 February 2018, C441/17, European Commission v. Republic of Poland, ECLI:EU:C:2018:80.

(91.) Judgment of the Court of Justice of 17April 2018, C441/17, European Commission v. Republic of Poland, ECLI:EU:C:2018:255.

(92.) Action of the European Commission of 15 March 2018, Case C-192/18, European Commission v. Republic of Poland.

(93.) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, OJ 2006 L204, 23.

(94.) See European Commission, Press Release: ‘Rule of Law: Commission launches infringement procedure to protect the independence of the Polish Supreme Court’, Brussels 2 July 2018.

(95.) Ibid.

(96.) The Ruling of the Supreme Court of Poland of 2 August 2018, Case III UZP 4/18.

(97.) The Office of the President of the Republic Communication of 2 August 2018.

(98.) The Communication of the Spokesman of the Supreme Court of 3 August 2018.

(99.) Judgment of the Court of Justice of 6 November 2012, C-286/12, European Commission v. Hungary, ECLI:EU:C:2012:687.

(100.) Stanisław Biernat and Monika Kawczyńska, ‘Why the Polish Supreme Court’s Reference on Judicial Independence to the CJEU is Admissible after all’ (VerfBlog, 23 August 2018) <https://verfassungsblog.de/why-the-polish-supreme-courts-reference-on-judicial-independence-to-the-cjeu-is-admissible-after-all/> (accessed 1 September 2018).

(101.) Communication from the Commission to the European Parliament and the Council. A New EU Framework to Strengthen the Rule of Law, Brussels, 11.3.2014, COM(2014) 158 final.

(102.) Ibid. emphasis added.

(103.) Viviane Reding, ‘A New Rule of Law Initiative’, Speech 14/202, Strasbourg, 11 March 2014.

(104.) Communication (n. 101), para. 1.

(105.) Dimitry Kochenov and Laurent Pech, ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality’ (2015) 11 European Constitutional Law Review 512, 532–3.

(106.) Armin von Bogdandy, Carlino Antpöhler, and Michael Ioannidis, ‘Protecting EU values: Reverse Solange and the Rule of Law Framework’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values Ensuring Member States’ Compliance (OUP 2017) 218, 228.

(107.) Ibid. 228, footnote omitted.

(108.) Council of the EU, Opinion of the Legal Service 1026/14 of 2 May 2014.

(109.) See e.g. European Parliament resolution on the situation in Poland (2015/3031(RSP)) of 13 April 2014 (European Parliament); press release 3362 Council meeting General Affairs Brussels, 16 December 2014 (the Council); judgment of the Court of 25 July 2018, C-216/18, PPU—Minister for Justice and Equality, ECLI:EU:C:2018:586 (the Court).

(110.) Kochenov and Pech, ‘Monitoring and Enforcement’ (n. 105) 529, footnote omitted.

(111.) Judgment of the Court of 5 April 2016, C-404/15, Aranyosi and Căldăraru, ECLI:EU:C:2016:198.

(112.) Carlos Closa, ‘Reinforcing EU Monitoring of the Rule of Law Normative Arguments, Institutional Proposals and the Procedural Limitations’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) 15, 15–16.

(113.) Kochenov and Pech, ‘Monitoring and Enforcement’ (n. 105) 529–32.

(114.) Kochenov and Pech, ‘Better Late than Never’ (n. 50) 1066.

(115.) Dimitry Kochenov, ‘The Missing EU Rule of Law?’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) 290, 296.

(117.) Kim Lane Scheppele and Laurent Pech, ‘Is the Rule of Law Too Vague a Notion?’ (VerfBlog, 1 March 2018) https://verfassungsblog.de/the-eus-responsibility-to-defend-the-rule-of-law-in-10-questions-answers/.

(118.) Amichai Magen, ‘Cracks in the Foundations: Understanding the Great Rule of Law Debate in the EU’ (2016) 54 Journal of Common Market Studies 1050, 1054.

(119.) Ronald Dworkin, ‘Hart’s Postscript and the Character of Political Philosophy’ (2004) 34 Oxford Journal of Legal Studies 1, 16.

(120.) Communication from the Commission to the European Parliament and the Council. A New EU Framework to Strengthen the Rule of Law, Brussels, 11.3.2014, COM(2014) 158 final, para. 4.1.

(121.) von Bogdandy, Antpöhler and Ioannidis, ‘Protecting EU values’ (n. 106) 225.

(122.) Kochenov and Pech, ‘Monitoring and Enforcement’ (n. 105) 532–3.

(123.) Communication of 11.3.2014 (n. 120) para. 4.1.

(124.) Readout by First Vice-President Timmermans of the College Meeting of 13 January 2016, Brussels, 13 January 2016.

(125.) Recommendation regarding the rule of law in Poland No 2016/1374, Official Journal of the European Union L 217/53.

(126.) Ibid. para. 65.

(127.) Ibid. para. 74.

(128.) Minister of Foreign Affairs (Poland): A statement on the Polish government’s response to Commission Recommendation, 27 July 2016.

(129.) Ibid.

(130.) Ibid.

(131.) Ibid.

(132.) Ibid.

(133.) Ibid.

(134.) Laurent Pech, ‘Systemic Threat to the Rule of Law in Poland: What Should the Commission do Next?’ (VerfBlog, 31 October 2016) <https://verfassungsblog.de/systemic-threat-to-the-rule-of-law-in-poland-what-should-the-commission-do-next/> accessed 1 November 2017.

(135.) Recommendation regarding the rule of law in Poland No 2017/146 complementary to Commission Recommendation (EU) 2016/1374, Official Journal of the European Union L 22/65.

(136.) Ibid. para. 59.

(137.) Ibid. para. 34.

(138.) Recommendation regarding the rule of law in Poland No 2017/1520 complementary to Commission Recommendations (EU) 2016/1374 and (EU) 2017/146, Official Journal of the European Union L 228/19 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017H1520 (accessed 11 September 2018).

(139.) Ibid. para. 20.

(140.) Ibid. para. 47 (g).

(141.) Minister of Foreign Affairs (Poland) statement on Poland’s response to European Commission’s complementary Recommendation of 21 December 2016.

(142.) Minister of Foreign Affairs (Poland) statement following the European Commission’s Recommendation of 26 July 2017 regarding the rule of law in Poland.

(143.) Ibid.

(144.) Minister of Foreign Affairs (Poland) statement on the European Commission’s decision to launch the disciplinary process against Poland laid out in Article 7 of the TEU, 20 December 2017.

(145.) For examples of statements to this effect, and discussion, see Sadurski, Constitutionalism (n. 42) 81–4.

(146.) See ibid. 84–6.

(147.) Communication from the Commission to the Council and the European Parliament on Article 7 of the TEU, ‘Respect for and promotion of the values on which the Union is based’, 15 October 2003, COM(2003) 606, 4.

(148.) Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, COM/2017/0835 final—2017/0360 (NLE).

(149.) Ibid. para. 173.

(150.) Ibid. para. 173.

(151.) Ibid. para. 175.

(152.) Ibid. para. 175.

(153.) Kim Lane Scheppele and Laurent Pech, ‘Was the Commission Right to Activate pre-Article 7 and Article 7(1) Procedures Against Poland?’ (VerfBlog, 7 March 2018) <https://verfassungsblog.de/was-the-commission-right-to-activate-pre-article-7-and-art-71-procedures-against-poland/> (accessed 30 October 2018).

(159.) The Chancellery of the Prime Minister (Poland), ‘White Paper on the Reform of the Polish Judiciary’, Warsaw, 7 March 2018.

(160.) Iustitia, Polish Judges Association, ‘The Response of the Polish Judges Association “Iustitia” to the White Paper on the Reform of the Polish Judiciary, Presented to the European Commission by the Government of the Republic of Poland’, Warsaw 2018. A personal declaration: I was one of the experts involved in preparing the Response.

(161.) The European Commission Contribution of 18 September 2018 (Rule of Law in Poland/Article 7 Reasoned Proposal Hearing of Poland). Note that, as of the time of writing this book, neither the Commission’s document nor Polish government’s observations have been officially published, but were disclosed by journalists on the day of the hearing.

(162.) Ibid. para. 2.

(163.) Ibid.

(164.) Ibid. para. 3.

(165.) Ibid. para. 6.

(166.) Ibid. para. 4.

(167.) ‘Poland’s Remarks on European Commission Contribution, Hearing of Poland’ 18 September 2018, 1.

(168.) Ibid. 3.

(169.) Ibid.

(170.) Ibid.

(171.) There was also a debate on Poland in the European Parliament on 14 December 2016 but without a resolution adopted. The debate was solely on changes to the CT.

(172.) Kim Lane Scheppele, ‘Enforcing the Basic Principles of EU Law through Systemic Infringement Actions’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) 105.

(173.) Ibid. 107–8.

(174.) Ibid. 109.

(175.) Dimitry Kochenov, ‘The Acquis and Its Principles The Enforcement of the “Law” versus the Enforcement of “Values” in the EU’ in András Jakab and Dimitry Kochenov (p.240) (eds), The Enforcement of EU Law and Values Ensuring Member States’ Compliance (OUP 2017) 9, 19.

(176.) Kaarlo Tuori, ‘From Copenhagen to Venice’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) 225, 235.

(177.) Laurence W. Gormley, ‘Infringement Proceedings’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values Ensuring Member States’ Compliance (OUP 2017) 65, 77.

(178.) ‘Editorial Comments: Safeguarding EU Values in the Member States – Is Something Finally Happening?’ (2015) 52 Common Market Law Review 619, 622.

(179.) Christophe Hillion, ‘Overseeing the Rule of Law in the EU Legal Mandate and Means’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) 5, 66.

(180.) See similarly ibid. 69.

(181.) Originally developed by Armin von Bogdandy et al., ‘Reverse Solange – Protecting the Essence of Fundamental Rights against EU Member States’ (2012) 49 Common Market Law Review 489; A. von Bogdandy et al., ‘Reverse Solange – A European Response to Domestic Constitutional Crisis: Advancing the Reverse-Solange Doctrine’ in Armin von Bogdandy and Pál Sonnevend (eds), Constitutional Crisis in the European Constitutional Area (Hart 2015) 248.

(182.) Armin von Bogdandy, Carlino Antpöhler, and Michael Ioannidis, ‘Protecting EU Values: Reverse Solange and the Rule of Law Framework in The Enforcement of EU Law and Values Ensuring Member States’ Compliance’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values Ensuring Member States’ Compliance (OUP 2017) 219.

(183.) Ibid. 220.

(184.) Tuori (n. 176) 230.

(185.) Kochenov, ‘The Acquis and Its Principles’ (n. 175) 22.

(186.) Jan-Werner Müeller, ‘Should the EU Protect Democracy and the Rule of Law inside Member States?’ (2015) 21 European Law Journal 141, 150.

(187.) Ibid. 151.

(188.) Jan-Werner Müeller, ‘Protecting the Rule of Law (and Democracy!) in the EU. The Idea of a Copenhagen Commission’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016) 206, 220.

(189.) Ibid. 220.

(190.) Kochenov, ‘The Acquis and Its Principles’ (n. 175) 23 (emphasis in original).

(191.) Tuori (n. 176) 241–2.

(192.) Von Bogdandy et al., ‘Protecting EU Values’ (n. 106) 229.

(193.) Ibid. 232.

(194.) Ibid. 229.

(195.) Eszter Zalan, ‘Justice Commissioner links EU funds to “rule of law” ’ (EU Observer, 31 October 2017) <https://euobserver.com/political/139720> (accessed 15 September 2018).

(196.) See ‘French foreign minister: We no longer want to pay for Poland and Hungary’ (Euractiv, 5 September 2018 <https://www.euractiv.com/section/future-eu/news/french-foreign-minister-we-no-longer-want-to-pay-for-poland-and-hungary> (accessed 15 September 2018).

(197.) R. Daniel Kelemen and Kim Lane Scheppele, ‘How to Stop Funding Autocrats in the EU’ (Verfblog, 10 September 2018) <https://verfassungsblog.de/how-to-stop-funding-autocracy-in-the-eu/> (accessed 15 September 2018).

(198.) Gráinne de Búrca, ‘Beyond the Charter: How Enlargement Has Enlarged the Human Rights Policy of the European Union’ (2004) 27 Fordham International Law Journal 679, 696.