# EU vs. Poland: Preventing political control over judiciary

Aurélien Raccah

<figure><img src="image_1.png" /></figure>

## To cite this version:

Aurélien Raccah. EU vs. Poland: Preventing political control over judiciary. Jacques Ziller, a European scholar, , pp.167/183, 2022, 978-92-9466-346-7. hal-04224830

HAL Id: hal-04224830

https://univ-catholille.hal.science/hal-04224830

Submitted on 2 Oct 2023

HAL is a multi-disciplinary open access
archive for the deposit and dissemination of sci-
entific research documents, whether they are pub-
lished or not. The documents may come from
teaching and research institutions in France or
abroad, or from public or private research centers.

L'archive ouverte pluridisciplinaire HAL, est
destinée au dépôt et à la diffusion de documents
scientifiques de niveau recherche, publiés ou non,
émanant des établissements d'enseignement et de
recherche français ou étrangers, des laboratoires
publics ou privés.

Public Domain
# 11. EU vs. Poland: Preventing political control over judiciary

Aurélien Raccah, Associate Professor, Director of the International & European Law School (IELS), Law Faculty, Catholic University of Lille

## 1. Introduction

The European legal doctrine is unanimous: “Dialogue wasn’t, isn’t and will NEVER be an effective way forward when dealing bad faith actors engaged in an obvious constitutional *coup d’état”<fnref n="501" />. The 2022 Rule of law Report explicitly recalled that the political and judicial crisis occurring in Poland remains one of the main concerns of the European Union<fnref n="502" />. The four political EU institutions and the Court of justice of the European Union (CJEU) are actively engaged in a judicial battle to tackle Polish political provocations<fnref n="503" />.

Since 2018, Poland has been concerned by an unprecedented number of

<footnote n="501">501 Pech, L. (2020), *Protecting Polish Judges from the Ruling Party's "Star Chamber"*, Verfassungsblog, 9 April 2020, at https://verfassungsblog.de/protecting-polish-judges-from-the-ruling-partys-star-chamber/.</footnote>

<footnote n="502">502 European Commission (2022a), *Commission Staff Working Document, 2022 Rule of Law Report Country Chapter on the rule of law situation in Poland, Accompanying the document, Communication from the Commission, 2022 Rule of Law Report - The rule of law situation in the European Union, COM(2022) 500 final, Brussels.*</footnote>

<footnote n="503">503 Reynders, D. (2022), *Respect de l'Etat de droit dans l'Union : outils et perspectives*, Revue de l'Union européenne, No. 657, 2022, p. 201.</footnote>
<figure><img src="image_2.png" /></figure>

CJEU cases focusing on the violation of the rule of law. The Court is pointing out “the existence of systemic or generalised deficiencies so far as concern the independence of the judiciary”<fnref n="504" />. Over twenty cases in four years.

The turning point occurred in 2015, when the national-conservative party Law and Justice (PiS), strongly chaired by Lech Kaczyński, successively won two major elections, the Polish Presidency by Andrzej Duda and the Sejm, getting the majority in both houses and becoming the first single-party government since the end of communism in 1989⁵⁰⁵. Following the elections, the new government led by Beata Szydło performed judiciary reforms in the Constitutional Court introducing a major political crisis around the nomination of five judges. In the following years, the Polish government adopted legislatives changes in the organisation of the justice. From that time, the challenge for the EU is to prevent any political control over judicial decisions in Poland.

The European Commission took first the lead to prevent the political control over judiciary<fnref n="506" />. The announced reforms of the polish judiciary system have provoked serious concerns on threats to the rule of law, overall the independence of the constitutional review and a series of laws approved in 2017 reforming the Supreme Court, the Ordinary Courts Organisation, the National Council for the Judiciary and the National School of Judiciary and Public Prosecution. In 2017, the European Commission invited the Council to adopt a decision on the basis of Article 7 EU<fnref n="507" />. It considered that Poland violates the values of the EU enshrined in Article 2 EU which are “respect for human

<footnote n="504">504 Case C-216/18 PPU, *LM*, Judgment of the Court (Grand Chamber) of 25 July 2018, paragraphs 23, 34, 60, 68, 74, 79; Joined Cases C-562/21 PPU and C-563/21 PPU, *X*, *Y*, Judgment of the Court (Grand Chamber) of 22 February 2022, paragraph 62.</footnote>

<footnote n="505">505 Ireneusz Krzeminski, I. (2022), *Qu'est-il arrivé à la Pologne?*, Revue de l'Union européenne, No. 657, 2022, p. 207.</footnote>

<footnote n="506">506 *Commission Recommendation (EU) 2016/1374 of 27 July 2016 regarding the rule of law in Poland*, Official Journal of the European Union, L 217, 12 August 2016; *Commission Recommendation (EU) 2017/146 of 21 December 2016 regarding the rule of law in Poland complementary to Recommendation (EU) 2016/1374*, Official Journal of the European Union, L 22, 27 January 2017; *Commission Recommendation (EU) 2017/1520 of 26 July 2017 regarding the rule of law in Poland complementary to Recommendation (EU) 2016/1374 and (EU) 2017/146*, Official Journal of the European Union, L 228, 2 September 2017; *Commission Recommendation (EU) 2018/103 of 20 December 2017 regarding the rule of law in Poland complementary to Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520*, Official Journal of the European Union, L 17, 23 January 2018.</footnote>

<footnote n="507">507 European Commission (2017), *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, Brussels.</footnote>
dignity, freedom, democracy, equality, the rule of law and respect for human rights". Requiring the approval at the unanimity of the European Council, this decision was never adopted due to the support of Hungary. Poland is indeed the tip of the iceberg. Populist movements in Europe have so succeeded to form new types of eurosceptical governments struggling the rule of law and the primacy of EU law in Hungary<fnref n="508" /> overall and punctually in other states<fnref n="509" />.

To overpass the political stalemate, the Court of justice has pursued the debate on the basis of Article 19 (1) EU providing that “*Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law*”. The first case reshaping the meaning and scope of the rule of law principle has been the *Juízes Portugueses* case<fnref n="510" /> that is seen as “belonging to the Pantheon of the most significant ECJ rulings, on a par with *Van Gen den Loos* and *Costa*”<fnref n="511" />. In the same line, the Polish saga started with the *LM* case in 2018 allowing for the first time a Member State not to execute a European Arrest Warrant issued by Poland because there would be “real risk of breach of the fundamental right to a fair trial”<fnref n="512" />. From that case, Poland is facing an unclosed series of judicial actions and interim measures striking the infringements to the independence of justice and the primacy of EU law and raising more recently the regime of conditionality for the protection of the EU budget.

As a provocative answer, pushing forward the door opened by the German *Bundesverfassungsgericht* in the controversial PSPP case<fnref n="513" />, an additional

<footnote n="508">508 Komanovics, A. (2022), *Hungary and the Luxembourg Court: the CJEU's Roe in the Rule of Law Battlefield*, EU and Comparative Law Issues and Challenges Series, Issue 6, 2022, p. 122.</footnote>

<footnote n="509">509 Ziller, J. (2022), *The primacy of European Union law*, European Parliament Policy Department for Citizens' Rights and Constitutional Affairs Directorate-General for Internal Policies of the Union PE 732.474, July 2022; Parra Gomez, D. (2021, *Crisis of the Rule of Law in Europe: The Cases of Hungary, Poland and Spain*, Athens Journal of Law, Vol. 7, Issue 3, 2021).</footnote>

<footnote n="510">510 Case C-64/16, *Associação Sindical dos Juízes Portugueses v. Tribunal de Contas*, Judgment of the Court (Grand Chamber) of 27 February 2018.</footnote>

<footnote n="511">511 Pech, L. and D. Kochenov (2021), *Respect for the Rule of Law in the Case Law of the European Court of Justice*, SIEPS, 2021, Issue 3, p. 12.</footnote>

<footnote n="512">512 Case C-216/18 PPU, LM, *supra* note 4, paragraph 79.</footnote>

<footnote n="513">513 BVerfG, Judgment of the Second Senate of 5 May 2020, PSPP - 2 BvR 859/15, paragraphs 1-237. Following Case C-493/17, *Heinrich Weiss and Others*, Judgment of the Court (Grand Chamber) of 11 December 2018. Cf. for a comprehensive understanding, Ziller, J. (2020), *The unbearable heaviness of the German constitutional judge*, SSRN, 6 May 2020, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3598179.</footnote>
<figure><img src="image_3.png" /></figure>

conflict relating to the primacy of EU law has emerged from the Polish Constitutional Tribunal through two rulings of 14 July 2021 and 7 October 2021⁵¹⁴. On July 14th, it considered that “*Article 4(3), second sentence, EU in conjunction with Article 279 TFEU – insofar as the Court of Justice of the European Union ultra vires imposes obligations on the Republic of Poland as an EU Member State, by prescribing interim measures pertaining to the organisational structure and functioning of Polish courts and to the mode of proceedings before those courts – is inconsistent with the [Polish] Constitution*” <fnref n="515" />. On October 7th, the Polish Constitutional Tribunal judged that “*the European Union authorities act outside the scope of the competences conferred upon them by the Republic of Poland*” and that the interpretation of Article 19(1) EU by the CJEU to review of the organisation of the justice in Poland contradicts the supremacy of the Polish constitution<fnref n="516" />. Considering these two decisions as breaches of Article 19(1) EU and the general principles of autonomy, primacy, effectiveness, uniform application of Union law and the binding effect of rulings of the Court of Justice, the European Commission engaged an action for failure to fulfil EU obligations<fnref n="517" />. On July 15th, 2022, a reasoned opinion has been published<fnref n="518" />. The case shall be soon taken to the Court.

The Court of justice of the European Union is nowadays developing its own concept of “effective judicial protection” to reframe – among others – the polish judicial organisation into EU values (1). That definition will be required to strengthen the enforcement measures (2).

<footnote n="514">514 Jacques Ziller points out the sole publication of the press releases, limiting the access to legal reasons. Cf. Ziller (2022), *supra* note 9, p. 38. Maurice, E. (2021), *The rule of law in Poland or the false argument of the primacy of European law*, Fondation Robert Schuman, European Issue No. 615, 29 November 2021.</footnote>

<footnote n="515">515 Polish Constitutional Court, Decision on 14 July 2021, P 7/20 | 14 VII 2021 (refusal to apply CJEU's interim measures).</footnote>

<footnote n="516">516 Polish Constitutional Court, Decision on 7 October 2021, K 3/21 | 7 X 2021 (primacy of the Polish Constitution over EU law).</footnote>

<footnote n="517">517 H. (2022), État de droit : nouvelle procédure en manquement contre la Pologne – vers une procédure pilote?, Dalloz actualité, 19 janvier 2022.</footnote>

<footnote n="518">518 Reasoned opinion to Poland on 15/07/2022 (INFR(2021)2261).</footnote>
## 2. An ongoing definition of the requirements of effective judicial protection

The Court refers to the requirements of an effective judicial protection in the fields covered by EU law. However, that concept is not expressively defined in EU law, but rather stemming from the constitutional traditions common to the Member States. Throughout the case law, the Court is shaping the criteria for a EU concept of “effective judicial protection” in front of national courts.

### 2.1 Effective judicial protection vs. institutional autonomy of member states

Originally based on articles 6 and 13 ECHR<sup>519</sup>, nowadays on article 47 of the Charter of fundamental rights<sup>520</sup>, the effective judicial protection has become a general principle of EU law. It requires that any individual must have an ef- fective judicial remedy to ensure that their EU rights are fully implemented in its internal legal order. The current political context in member states led by populist regimes has driven the European Commission to enlarge the inter- pretation of Article 19(2) EU to review some details of the national judicial systems.

In the Court, two main arguments are opposed. On the one hand, the EU institutions claim that, on the basis of Article 19 (1) EU, the EU is entitled to control “the effective judicial protection in the fields covered by Union law” and thus the compliance of the national judicial systems to EU law<sup>521</sup>.

<footnote n="519">519 Case 222/84, *Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary*, Judgment of the Court of 15 May 1986.</footnote>

<footnote n="520">520 Case C-76/16, *Ingsteel*, Judgment of the Court (Second Chamber) of 13 July 2017; Case C-271/17 PPU, *Zdziaszek*, Judgment of the Court (Fifth Chamber) of 10 August 2017; Case C-216/18 PPU, *LM*, *supra* note 4; Case C-682/15, *Berlioz Investment Fund*, Judgment of the Court (Grand Chamber) of 16 May 2017; Case C-243/15, *Lesoochranárske zoskupenie VLK*, Judgment of the Court (Grand Chamber) of 8 November 2016; Case C-791/19, *European Commission v. Poland*, Judgment of the Court (Grand Chamber) of 15 July 2021.</footnote>

<footnote n="521">521 Case C-64/16, *Associação Sindical dos Juízes Portugueses*, *supra* note 10, praphags 34 to 37.</footnote>
On the other side, on the ground of the principles of conferral<sup>522</sup> and institutional autonomy of the member states<sup>523</sup>, Poland is mostly answering that the EU lacks competence to control the organisation of the national judiciary. On the basis of Article 4(2) EU, the Court has developed a settled case-law on the principle of institutional and procedural autonomy prohibiting any interference of the EU into the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals<sup>524</sup>. It falls under the discretion of the member states “to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law”<sup>525</sup>. In that perspective, Poland has some arguments to tackle the EU.

However, under the principle of effectiveness<sup>526</sup>, the Court always repealed the obligation of results to achieve EU obligations. The conditions laid down by the domestic norms should not make it “impossible in practice to exercise the rights which the national courts are obliged to protect”<sup>527</sup>. The national judges are obliged to give full effect to EU law in good faith. They must set

<footnote n="522">522 Art. 5(2) TEU: “*Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States*”.</footnote>

<footnote n="523">523 Art. 4 (2) TEU: The Union shall respect the national identities of the member states, “*inherent in their fundamental structures, political and constitutional [...] their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order*”.</footnote>

<footnote n="524">524 Case 33-76, *Rewe-Zentralfinanz eG and ReweZentral AG v Landwirtschaftskammer für das Saarland*, Judgment of the Court of 16 December 1976; Case 39/70, *Norddeutsches Vieh und Fleischkontor c. Hauptzollamt Hamburg St Annen*, Judgment of the Court of 11 February 1971; Cases 205/82 to 215/8, *Deutsche Milchkontor e.a. v. Germany*, Judgment of the Court (Fifth Chamber) of 21 September 1983.</footnote>

<footnote n="525">525 Case C-425/16, *Hansruedi Raimund*, Judgment of the Court (Ninth Chamber) of 19 October 2017, paragraph 40; Case C-224/01, *Köbler*, Judgment of the Court of 30 September 2003, paragraph 47; Case C-93/12, *Agrokonsulting*, Judgment of the Court (Third Chamber), 27 June 2013, paragraph 35; Case C-583/11 P, *Inuit Tapiriit Kanatami*, Judgment of the Court (Grand Chamber), 3 October 2013, paragraph 102.</footnote>

<footnote n="526">526 Art. 4(3),TEU: “*The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union*”.</footnote>

<footnote n="527">527 Case 33-76, *Rewe-Zentralfinanz eG and ReweZentral AG*, *supra* note 24; Case 199/82, *Amministrazione delle Finanze dello Stato v SpA San Giorgio*, Judgment of the Court of 9 November 1983.</footnote>
aside any national law which precludes from granting EU rights<fnref n="528" />. From the *Inuit* Case, the CJEU started to ascertain, on the basis of Articles 19 EU and 47 of the Charter, that in any EU law areas, the member states shall establish "a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection"<fnref n="529" />. That interpretation has been the starting point to reshape the organisation of the judiciary in Poland. The Court states constantly that even if the organisation of justice falls in the competences of the Member States, their obligations to comply with EU law allows a review to respect EU values<fnref n="530" />.

## 2.2 Member states shall establish "court or tribunal" by law

The political control over judiciary in Poland has struggled the concept of a "court or tribunal" established by law. Overall the creation of a new Disciplinary Chamber within the Supreme Court in 2017 has been seen has a serious breach to the independence of the judiciary.

From the *Juízes Portugueses* case, the Court recalls that the EU is based on the rule of law "in which the individuals have the right to challenge before the courts the legality of any decision or other national measure relating to the application to them of an EU act"<fnref n="531" />. The existence of appropriate national proceedings ensuring an effective judicial protection giving access to an independent "court or tribunal" is the core of the rule of law. The Court has distinguished six criteria to assess whether a body is a 'court or tribunal': the body shall be established by law, permanent, compulsory, independent, the proce-

<footnote n="528">528 C-213/89, *Factortame*, Judgment of the Court of 19 June 1990, paragraph23; Case 106/77, *Simmenthal*, Judgment of the Court of 9 March 1978, paragraph22.</footnote>

<footnote n="529">529 Case C-583/11 P, *Inuit Tapiriit Kanatami, supra* note 25, paragraph100; Case C-456/13, *P T & L Sugars*, Judgment of the Court (Grand Chamber) of 28 April 2015, paragraph 49.</footnote>

<footnote n="530">530 Joined Cases C585/18, C624/18 and C625/18, A. K., Judgment of the Court (Grand Chamber) of 19 November 2019, paragraphs 75, 82; Case C-619/18, *Commission v Poland*, Judgment of the Court (Grand Chamber) of 24 June 2019, paragraph 52.</footnote>

<footnote n="531">531 Case C-64/16, *Associação Sindical dos Juízes Portugueses*, *supra* note 10, paragraph 31, Case C-216/18 PPU, LM, *supra* note 4, paragraph 49.</footnote>
<figure><img src="image_4.png" /></figure>

dure shall be *inter partes*, it shall apply rules of law<sup>532</sup>. The Court applies those criteria in the different Polish case, such as the *WB and Others* case relating to the criminal proceedings in which the Minister of Justice may second a judge to the higher criminal court for a fixed or indefinite period<sup>533</sup>. Further developments of the concept of “court or tribunal” have been also given in the *BN and Others* case concerning the impartiality of a judge appointed during the communist regime<sup>534</sup>.

This first check list enable to qualify a “court or tribunal” established by law.

## 2.3 Guarantee of independence and impartiality

The changes to the constitutional role of the National Council for the Judiciary in safeguarding independence of the judiciary, the invalidation of the appointments to the Constitutional tribunal, the entitlement of the Minister for Justice as Public Prosecutor giving him an active role in prosecutions and a disciplinary role on presidents of courts and the compulsory retirement of judges have been seen as breaches to the independence of the judiciary.

The Court refers to the principles of mutual trust between member states and mutual recognition to recall that the Union is based on the expectation that all the member states comply with EU law and ensure a high level of national protection of the fundamental rights<sup>535</sup>. In the *LM* case, if the surrender of a requested person results in inhuman and degrading treatment, the Court stated that it would then affect the trust between member states. Under the third subparagraph of Article 19(2) TEU, the guarantee of independence of

<footnote n="532">532 Case C-64/16, *Associação Sindical dos Juízes Portugueses*, supra note 10, paragraph 38; Case C-503/15, *Margarit Panicello*, Judgment of the Court (Fifth Chamber) of 16 February 2017, paragraph 27.</footnote>

<footnote n="533">533 Joined Cases C-748/19 to C-754/19, *WB and Others vs. Prokuratura Krajowa*, Judgment of the Court (Grand Chamber) of 16 November 2021.</footnote>

<footnote n="534">534 Case C-132/20, *BN and Others*, Judgment of the Court (Grand Chamber) of 29 March 2022.</footnote>

<footnote n="535">535 Case C-64/16, *Associação Sindical dos Juízes Portugueses*, supra note 10, paragraph 36; Case C-270/17 PPU, *Tupikas*, Judgment of the Court (Fifth Chamber) of 10 August 2017, paragraph 49.</footnote>
national courts is interpreted as inherent in the task of adjudication<fnref n="536" />. The judicial functions shall be autonomous, without hierarchical constrain or in-struction from any other source. The national courts shall be protected from any external intervention or pressure influencing their decisions<fnref n="537" />. The case law of European Court of Human Rights also points out the requirement of separation of powers that courts shall be independent from the executive and the legislature<fnref n="538" />.

The Court is mostly referring to the settled case-law of the ECtHR pre-cising that an independent tribunal includes “the mode of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body at issue presents an appearance of independence”<fnref n="539" />. The ECtHR applies a “subjective test” concerning the personal convictions and behaviour of the judges and an “objective test” to ascertain that the composition of the tribunal itself offers sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality<fnref n="540" />. In the *A.K. and Others* case<fnref n="541" />, the Court expressed clearly its doubt on the independence of the National Council of the Judiciary (KRS) in the procedure for the appointment of judges.

On July 15th, 2021, the disciplinary proceedings against judges and courts introduced in Poland through the Disciplinary Chamber of the

<footnote n="536">536 Case C-64/16, *Associação Sindical dos Juízes Portugueses*, supra note 10, paragraph 42; Case C506/04, *Wilson*, Judgment of the Court (Grand Chamber) of 19 September 2006, paragraph 49; Case C685/15, *Online Games and Others*, Judgment of the Court (Second Chamber) of 14 June 2017, paragraph 60; Case C403/16, *El Hassani*, Judgment of the Court (First Chamber) of 13 December 2017, paragraph 40.</footnote>

<footnote n="537">537 Case C-503/15, *Margarit Panicello*, Judgment of the Court (Fifth Chamber) of 16 February 2017, paragraph 37.</footnote>

<footnote n="538">538 ECtHR, *Ninn-Hansen v. Denmark*, Decision of the Court (Second Section) of 18 May 1999, paragraph 19.</footnote>

<footnote n="539">539 ECtHR, *Ramos Nunes de Carvalho e Sá v. Portugal*, Judgement of Grand Chamber of 6 November 2018, paragraph 144; ECtHR, 21 June 2011, *Fruni v. Slovakia*, Judgement of 21 June 2011, paragraph 141.</footnote>

<footnote n="540">540 ECtHR, *Kleyn and Others v. Netherlands*, Judgement of 6 May 2003, paragraph 191; ECtHR, *Ramos Nunes de Carvalho e Sá v. Portugal*, supra note 39, paragraphs 145, 147 and 149.</footnote>

<footnote n="541">541 Joined Cases C585/18, C624/18 and C625/18, A. K., supra note 30, paragraph 142.</footnote>
<figure><img src="image_5.png" /></figure>

National Council have been qualified as a failure to fulfil EU obligations by the CJEU<fnref n="542" />. After some resistance, the Court has forced Poland to delete the Disciplinary Chambers by a historical order fixing a daily penalty payment of EUR 1,000,000⁵⁴³. In the meantime, the Polish government complied with that decision but the new disciplinary system is still criticised. Moreover, in the recent 2022 Report on the Rule of Law, the European Commission is still asking to Poland to separate the function of the Minister of Justice from the Public Prosecutor to avoid any interference of government into the prosecution.

## 2.4 The irremovability status of the judges

The decrease of the salaries of the judges<fnref n="544" />, the compulsory retirement, the change of position... are new tools used by populist governments to exclude judges and substitute them by people close to the government.

As a consequence of the infringements to the guarantees of independence and impartiality, the Court added other criteria that shall be taken into consideration "in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it", which are: the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members<fnref n="545" />.

Under a new Polish Act of 8 December 2017, the retirement age of judges of the Polish Supreme Court has been decreased from 70 to 65⁵⁴⁶ and overall any litigation relating to the status of the judges of the Supreme Court and their performance of their office, their employment and social security and the

<footnote n="542">542 Case C-791/19, *European Commission vs Poland*, *supra* note 20..</footnote>

<footnote n="543">543 Case C-204/21 R, *European Commission vs. Poland*, Order of the Vice-President of the Court of 27 October 2021.</footnote>

<footnote n="544">544 The national salary reduction in the case of 27 February 2018, C64/16, *Associação Sindical dos Juízes Portugueses*, *supra* note 10, was linked to financial crisis.</footnote>

<footnote n="545">545 Joined Cases C585/18, C624/18 and C625/18, *A. K.*, *supra* note 30, paragraph 123; Case C-216/18 PPU, LM, *supra* note 4, paragraph 66; Case C-619/18, *Commission v Poland*, *supra* note 30, paragraph 74.</footnote>

<footnote n="546">546 Ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5) ('the New Law on the Supreme Court'), which entered into force on 3 April 2018.</footnote>
compulsory retirement fell under the jurisdiction of the Disciplinary Chamber.

In 2019, that legislation has been sanctioned. The Court found that Poland had undermined the irremovability and independence of the judges of the Supreme Court and failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU<fnref n="547" />. In the following months, the *A.K. and Others* case concerning three judges complaining to be forced to retire and lose their status of judges, the Court gave interpretation of Article 47 of the Charter to ensure equal treatments to judges and thus disqualify the compulsory retirements<fnref n="548" />. In the *Repubblika* case<fnref n="549" />, the Court gives interpretation of Article 19(1) EU as meaning that a national court can control the conformity of appointment of national judges to EU law.

### 3. Enforcement of the rule of law in Poland

Qualified by Laurent Pech as the “enforcement cocktail”<fnref n="550" />, four main legal and judicial means may be distinguished under EU law proceedings to enforce the Rule of law in Poland: Article 7 EU (1), the action for failure to fulfil EU obligations (2), the action for reference for preliminary ruling (3) and more recently the implementation of the conditionality for the protection of the EU budget (4).

#### 3.1 The unrealistic “nuclear option” against populist regimes

In 2017, in response to the risks to breach EU values in Poland, the European Commission initiated a procedure under Article 7 EU<fnref n="551" />, followed by a reso-

<footnote n="547">547 Case C-619/18, *Commission v Poland*, *supra* note 30.</footnote>

<footnote n="548">548 Joined Cases C585/18, C624/18 and C625/18, A. K., *supra* note 30.</footnote>

<footnote n="549">549 Case C-896/19, *Repubblika v. Il-Prim Ministru*, Judgment of the Court (Grand Chamber) of 20 April 2021.</footnote>

<footnote n="550">550 Pech, L. (2019), *Rule of Law Backsliding in the EU: What Is It and What Must Be Done About It?*, Webinar, 3 April 2019.</footnote>

<footnote n="551">551 European Commission (2017), *supra* note 7.</footnote>
<figure><img src="image_6.png" /></figure>

lution of the European Parliament<fnref n="552" />. It however never passed neither the step of the majority of four fifths in the Council, nor the one of unanimity in the European Council.

Article 7 EU is organised in three stages. Firstly, one third of the member states, the European Parliament or the European Commission may ask the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, to determine that there is a clear risk of a serious breach by a Member State of the EU values. Secondly, the European Council shall then act at the unanimity to confirm the “existence of a serious and persistent breach”. Thirdly, the Council may take, at the qualified majority, may decide to suspend certain rights to the Member State.

President Barroso rightly qualified Article 7 EU as “nuclear option”<fnref n="553" />. Created at the time of the Amsterdam treaty, this very political process is criticised to be extreme and a top down approach against populist regimes that have been democratically elected. It strengthens the eurosceptical feelings in delivering red cards to member states. It was never applied and can’t be as long as at least two states protect each other liker Poland and Hungary.

Notwithstanding, in the *LM* case in 2018, the Court used the initiation of Article 7 EU by the European Commission to authorise a member state to suspend a European Arrest Warrant issued by Poland in so far as “there is a real risk of breach of the fundamental right of fair trial”<fnref n="554" />. Even if the explicit reference to Article 7 EU has not been kept in recent similar cases<fnref n="555" />, the Court grounds the refusal to surrender a convicted person on the violation of Article 47 of the Charter regarding the right to a fair trial before an independent and impartial tribunal established by law.

<footnote n="552">552 European Parliament (2018), *Resolution of 1 March 2018 on the Commission's decision to activate Article 7(1) TEU as regards the situation in Poland*, 2018/2541(RSP), Brussels.</footnote>

<footnote n="553">553 José Manuel Durão BÁRROSO, Barroso, J.M.D (2012), *State of the Union 2012*, Strasbourg 12 September 2012, available at https://ec.europa.eu/soteu2012/.</footnote>

<footnote n="554">554 Case C-216/18 PPU, LM, *supra* note 4, paragraph 79.</footnote>

<footnote n="555">555 Joined cases C-562/21 PPU and C-563/21 PPU, X, Y, *supra* note 4.</footnote>
## 3.2 The action for failure to fulfil EU obligations for extreme infringements to the Rule of law

For the first time, the Court judged three consecutive times actions for failure against the same member state to fulfil EU obligations. It considered that Poland failed between 2019 and 2021 by adopting new legislations on the organisation of the national judicial system. The three cases are based on the violation of Article 19(1) EU and Article 47 of the Charter.

Articles 258 to 260 TFEU provide an action for failure to fulfil EU obligations led by the European Commission. After warning the member state, the Commission may adopt a reasoned opinion before taking the case to the CJEU.

The first case concerned the immediate applicability of the decrease of the retirement age of the judges appointed to the Polish Supreme Court and the discretion given to the President of the Republic to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age<fnref n="556" />. In the second case, the Court fixed interim measures requiring from Poland to suspend immediately application of four legislations concerning the Disciplinary Chamber of the Supreme Court, the status of judges, the disciplinary liability of judges and the law on the organisation of the ordinary courts prohibiting them to from verifying compliance with the requirements of the EU<fnref n="557" />. The third one concluded that Poland failed to guarantee the independence and impartiality of the Supreme Court, by allowing the content of judicial decisions to be classified as a disciplinary offence involving judges of ordinary courts, by conferring on the President of the Disciplinary Chamber the discretionary power to designate the disciplinary tribunal in first instance and by not guaranteeing that disciplinary cases against judges od the ordinary courts are examined within a reasonable time<fnref n="558" />.

Those actions for failure have shown that they are necessary tools to force the change of national legislation but the political context shows some resistance and attempts to avoid the full respect of CJEU's decisions.

<footnote n="556">556 Case C-619/18, *Commission v Poland, supra* note 30.</footnote>

<footnote n="557">557 C-204/21 R, *European Commission vs. Poland, supra* note 43.</footnote>

<footnote n="558">558 Case C-791/19, *European Commission vs. Poland, supra* note 20.</footnote>
<figure><img src="image_7.png" /></figure>

3.3 References for preliminary ruling as saving tool
for national courts

Among the long list of reforms of the justice, the Polish government amended the law relating to the organisation of the ordinary courts in a way that prohibits them to verify the compliance of national to the EU law relating to an independent and impartial tribunal previously established by law. Any infringement to that new provision would be subject to disciplinary liability of judges.

In the past years, the Polish courts – paradoxically to the political context – have very much used the references for preliminary ruling to give interpretation to EU law in the national context.

Under Article 267 TFEU, the CJEU has jurisdiction to review the validity and the interpretation of EU law when a question is raised by a national court. The preliminary ruling sets up a dialogue with national courts with “the object of securing uniform interpretation of EU law [and] thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties”<fnref n="559" />. In the Polish context, the Court has recalled that the interpretation can only be done within the limits of the powers conferred to the EU<fnref n="560" />.

However, national courts have full discretion to refer to the Court. The CJEU stated that a national law cannot prevent that discretion and limit the access to the reference for preliminary ruling<fnref n="561" />. Thus, the Polish law could not preclude a court from which there is no appeal to refer a question of interpretation to the CJEU.

Through such references, for example, the Court has precluded a Polish legislation giving rights to the Minister for Justice to second a judge to a higher criminal court for a fixed or indefinite period<fnref n="562" />.

The reference for preliminary ruling is a useful tool in the current Polish political context to force the respect of the rule of law.

<footnote n="559">559 Opinion 2/13 (Accession to the ECHR), Opinion of the Court (Full Court), 18 December 2013, paragraph176.</footnote>

<footnote n="560">560 Joined Cases C585/18, C624/18 and C625/18, *A. K.*, *supra* note 30, paragraph 101; Case C205/15, *Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci*, Judgment of the Court (Second Chamber) of 30 June 2016, paragraph22.</footnote>

<footnote n="561">561 Joined Cases C585/18, C624/18 and C625/18, *A. K.*, *supra* note 30, paragraph; Case C689/13, *PFE*, Judgment of the Court (Grand Chamber) of 5 April 2016, paragraph32 and 33.</footnote>

<footnote n="562">562 Joined Cases C-748/19 to C-754/19, *WB and Others vs. Prokuratura Krajowa*, *supra* note 33.</footnote>
<figure><img src="image_8.png" /></figure>

## 3.4 Conditionality as a condition to allocate EU subsidies

To prevent members states from potential infringements to EU law, from 2013, the EU has introduced the concept of conditionality to allocate EU subsidies without being expressively linked to the rule of law<fnref n="563" />. As Poland is the largest net beneficiary of EU funds, suspending the EU subsidies may be an effective tool to press Poland to respect the Rule of law.

In 2020, after hard negotiations (Poland, Hungary and Slovenia were opposed to apply conditionality to the multiannual financial framework for 2021-27 and Next Generation EU), the EU adopted a new regulation on a general regime of conditionality for the protection of the Union budget providing suspension, reduction or interruption financial commitments in case of breaches of the principles of the rule of law in three cases: endangering the independence of the judiciary; failing to prevent, correct or sanction arbitrary or unlawful decisions by public authorities; limiting the availability and effectiveness of legal remedies<fnref n="564" />. The attempts of Poland and Hungary to annul that regulation in the Court have been dismissed<fnref n="565" />.

## 4. Diplomacy, sanctions or withdrawal?

The current options are tied to the Polish democratic expression. The first

<footnote n="563">563 Article 6, *Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006*, Official Journal of the European Union, L 347, 20 December 2013. Waelbroeck, M and P. Oliver (2018), *Enforcing the Rule of Law in the EU: What can be done about Hungary and Poland? Part II*, blog droit européen, 9 February 2018, available at https://blogdroiteuropeen.com/2018/02/09/enforcing-the-rule-of-law-in-the-eu-what-can-be-done-about-hungary-and-poland-part-ii-michel-waelbroeck-and-peter-oliver/; Laurent PECH and Kim Lane SCHEPPELE, Pech, L. and K.L. Scheppele (2017), *Illiberalism Within: Rule of Law Backsliding in the EU*, Cambridge Yearbook of European Legal Studies, Vol. 19, 2017.</footnote>

<footnote n="564">564 *Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget*, Official Journal of the European Union, L 433, 22 December 2020.</footnote>

<footnote n="565">565 Case C-157/21, *Poland vs. EP and Council*, Judgment of the Court (Full Court) of 16 February 2022.</footnote>
option is to pursue the ongoing pressure based on EU diplomacy and judicial actions. The results after seven years are very much criticised<fnref n="566" />. The second option could be to incorporate in the treaties more detailed criteria on the primacy of EU law and values. The third option would be to amend Article 7 EU to overpass unanimity at the European Council or even to include a member state exclusion procedure in the same spirit as Article 50 EU. The next legislative elections on November 11th, 2023 will be decisive for the EU political and judicial agenda.

After seventy years of construction, the EU is shaping the content of its values and its concept of the rule of law. The unwritten criteria defining each of those values are let to the CJEU, which may be seen again as not being the appropriate body to fix the limits between law and diplomacy in the relation between the EU and the member states. Last flagrant example has been the approval of the €35 billion national recovery plan for Poland by the European Commission on June 1st, 2022⁵⁶⁷ and the Council on June 17th, 2022⁵⁶⁸. Despite the lack of good faith from the Polish government, the European Commission “has ceded without any good reason, its crucial leverage vis-à-vis the Rule of Law in Poland”<fnref n="569" />. The four main European organisations of judges have engaged an action for annulment against that decision, considering the EU violates the CJEU’s decision to unblock Recovery and Resilience funds for Poland<fnref n="570" />. The saga is far from being over...

<footnote n="566">566 Pech (2020), *supra* note 1.</footnote>

<footnote n="567">567 European Commission (2022b), Proposal for a Council Implementing Decision on the approval of the assessment of the recovery and resilience plan for Poland, COM/2022/268 final, Brussels.</footnote>

<footnote n="568">568 *Council Implementing Decision (EU) 2022/1003 of 17 June 2022 authorising the Republic of Poland to apply a special measure derogating from Articles 218 and 232 of Directive 2006/112/EC on the common system of value added tax*, Official Journal of the European Union, L 168, 27 June 2022.</footnote>

<footnote n="569">569 Wojciech SADURSKI, Sadurski, W. (2022), *The European Commission Cedes its Crucial Leverage vis-à-vis the Rule of Law in Poland*, Verfassungsblog, 6 June 2022, available at https://verfassungsblog.de/the-european-commission-cedes-its-crucial-leverage-vis-a-vis-the-rule-of-law-in-poland/.</footnote>

<footnote n="570">570 International Association of Judges (2019), *Four European organisations of judges sue EU Council for disregarding EU Court's judgements on decision to unblock funds to Poland*, Press Release, 28 August 282022, available at https://www.iaj-uim.org/iuw/wp-content/uploads/2022/08/PRESS-RELEASE-EN.pdf; Kelemen, R. D. and L. Pech (2019) *The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland*, Cambridge Yearbook of European Legal Studies, Vol. 21, 2019.</footnote>