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
Date: 2017-12-20
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: Poland, appointment of members, constitutional court, control of constitutionality, independence of the judiciary, national law, rule of law

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   EUROPEAN COMMISSION  Brussels, 20.12.2017 COM(2017) 835 final 2017/0360 (NLE)  REASONED PROPOSAL IN ACCORDANCE WITH ARTICLE 7(1) OF THE TREATY ON EUROPEAN UNION REGARDING THE RULE OF LAW IN POLAND 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  
 
 
1. 

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EXPLANATORY MEMORANDUM 

INTRODUCTION 

The European Union is founded on a common set of values enshrined in Article 2 of 
the Treaty on European Union ('TEU'), which include the respect for the rule of law. 
The Commission, beyond its task to ensure the respect of EU law, is also responsible, 
together  with  the  European  Parliament,  the  Member  States  and  the  Council,  for 
guaranteeing the common values of the Union.  

Case law of the Court of Justice of the European Union and of the European Court of 
Human Rights,  as  well as  documents  drawn up by the Council  of Europe, building 
notably on the  expertise of the European Commission for Democracy  through  Law 
('Venice  Commission'),  provide  a  non-exhaustive  list  of  these  principles  and  hence 
define the core meaning of the rule of law. Those principles include legality, which 
implies  a  transparent,  accountable,  democratic  and  pluralistic  process  for  enacting 
laws;  legal  certainty;  separation  of  powers;  prohibition  of  arbitrariness  of  the 
executive  powers;  independent  and  impartial  courts;  effective  judicial  review 
including respect for fundamental rights; and equality before the law1. In addition to 
upholding those principles and values, State institutions also have the duty of loyal 
cooperation. 

According to Article 7(1) TEU, on a reasoned proposal by one third of the Member 
States,  by  the  European  Parliament  or  by  the  European  Commission,  the  Council, 
acting by a majority of four fifths of its members after obtaining the consent of the 
European Parliament, may determine that there is a clear risk of a serious breach by a 
Member  State  of  the  values  referred  to  in  Article  2.  Before  making  such  a 
determination, the Council shall hear the Member State in question and may address 
recommendations to it, acting in accordance with the same procedure. 

The  present  reasoned  proposal  sets  out,  in  accordance  with  Article  7(1)  TEU,  the 
concerns of the Commission with regard to the rule of law in Poland. It invites the 
Council to determine, on the basis of the same provision, that there is a clear risk of a 
serious breach by the Republic of Poland of the rule of law which is one of the values 
referred to in Article 2 TEU.  

(5) 

The concerns of the Commission relate to the following issues: 

(1) 

(2) 

the lack of an independent and legitimate constitutional review; 

the adoption by the Polish Parliament of new legislation relating to the Polish 
judiciary  which  raises  grave  concerns  as  regards  judicial  independence  and 
increases significantly the systemic threat to the rule of law in Poland:  

(a) 

(b) 

the law on the Supreme Court; approved by the Senate on 15 December 
2017. 

the law amending the law on the Ordinary Courts Organisation ('law on 
Ordinary Courts Organisation'); published in the Polish Official Journal 
on 28 July 2017 and in force since 12 August 2017; 

1  See section 2, Annex I of the Communication from the Commission to the European Parliament and the Council of 11 

March 2014, 'A new EU Framework to Strengthen the Rule of Law', COM(2014) 158 final. 

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2.  

(6) 

(7) 

(c) 

(d) 

the law amending the law on the National Council for the Judiciary and 
certain  other  laws  ('law  on  the  National  Council  for  the  Judiciary'); 
approved by the Senate on 15 December 2017; 

the  law  amending  the  law  on  the  National  School  of  Judiciary  and 
Public  Prosecution,  the  law  on  Ordinary  Courts  Organisation  and 
certain other laws ('law on the National School of Judiciary'); published 
in  the  Polish  Official  Journal  on  13  June  2017  and  in  force  since  20 
June 2017.  

FACTUAL AND PROCEDURAL BACKGROUND 

Since November 2015, the Commission has been following closely the developments 
relating to the rule of law in Poland and has taken action. The full account of these 
developments  concerning  the  rule  of  law  in  Poland  and  the  dialogue  of  the 
Commission with the Polish Government under the Rule of Law Framework2 can be 
found in the Commission Recommendations (EU) 2016/13743, (EU) 2017/1464 and 
(EU) 2017/15205. An overview of the main developments is presented below. 

The  Rule  of  Law  Framework  provides  guidance  for  a  dialogue  between  the 
Commission and the Member State concerned to prevent the escalation of systemic 
threats to the rule of law. The purpose of this dialogue is to enable the Commission 
to  find  a  solution  with  the  Member  State  concerned  in  order  to  prevent  the 
emergence of a systemic threat to the rule of law that could develop into a 'clear risk 
of  a  serious  breach'  which  would  potentially  trigger  the  use  of  the  'Article  7  TEU 
Procedure'. The Framework is to be activated in situations where the authorities of a 
Member  State  are  taking  measures  or  are  tolerating  situations  which  are  likely  to 
systematically and adversely affect the integrity, stability or the proper functioning of 
the institutions and the safeguard mechanisms established at national level to secure 
the rule of law ('national rule of law safeguards')6. The Rule of Law Framework has 
three stages. In a first stage ('Commission assessment') the Commission collects and 
examines all the relevant information and assesses whether there are clear indications 
of a systemic threat to the rule of law. If, as a result of this preliminary assessment, 
the  Commission  believes  that  there  is  a  systemic  threat  to  the  rule  of  law,  it  will 
initiate  a  dialogue  with  the  Member  State  concerned,  by  sending  a  'Rule  of  Law 
Opinion',  substantiating  its  concerns  and  giving  the  Member  State  concerned  the 
possibility  to  respond.  In  a  second  stage  ('Rule  of  Law  Recommendation'),  if  the 
matter has not been satisfactorily resolved, the Commission can issue a 'Rule of Law 
Recommendation'  addressed  to  the  Member  State.  In  such  a  case,  the  Commission 
indicates the reasons for its concerns and recommends that the Member State solves 
the problems identified within a fixed time limit, and informs the Commission of the 
steps  taken  to  that  effect.  In  a  third  stage  ('Follow-up  to  the  Rule  of  Law 
Recommendation'),  the  Commission  monitors  the  follow-up  given  by  the  Member 

2  Communication  from  the  Commission  to  the  European  Parliament  and  the  Council  of  11  March  2014,  'A  new  EU 

Framework to Strengthen the Rule of Law', COM(2014) 158 final.   

3  Commission Recommendation (EU) 2016/1374 of 27 July 2016 regarding the rule of law in Poland (OJ L 217, 12.8.2016, 

p. 53). 

4  Commission Recommendation (EU) 2017/146 of 21 December 2016 regarding the rule of law in Poland complementary 

to Recommendation (EU) 2016/1374 (OJ L 22, 27.1.2017, p. 65). 

5  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 (OJ L 228, 2.9.2017, p. 19). 

6  Para 4.1 of the Communication COM(2014) 158 final.   

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2.1. 

(9) 

(10) 

State to the Recommendation. The entire process is based on a continuous dialogue 
between the Commission and the Member State concerned.  

During  the  last  two  years,  the  Commission  has  made  an  extensive  use  of  the 
possibilities  provided  by  the  Rule  of  Law  Framework  for  a  constructive  dialogue 
with  the  Polish  authorities.  Throughout  this  process  the  Commission  has  always 
substantiated its concerns in an objective and thorough manner. The Commission has 
issued  a  Rule  of  Law  Opinion  and  three  Rule  of  Law  Recommendations.  It  has 
exchanged more than 25 letters with the Polish authorities on this matter. A number 
of  meetings  and  contacts  between  the  Commission  and  the  Polish  authorities  also 
took  place,  both  in  Warsaw  and  in  Brussels,  mainly  before  the  issuing  of  the  first 
Rule of Law Recommendation. The Commission has always made clear that it stood 
ready  to  pursue  a  constructive  dialogue  and  has  repeatedly  invited  the  Polish 
authorities for further meetings to that end.  

INITIATION OF THE RULE OF LAW FRAMEWORK 

Ahead of the general elections for the Sejm of 25 October 2015, on 8 October 2015 
the  outgoing  legislature  nominated  five  persons  to  be  'appointed'  as  judges  of  the 
Constitutional  Tribunal  by  the  President  of  the  Republic.  Three  judges  would  take 
seats  vacated  during  the  mandate  of  the  outgoing  legislature  while  two  would  take 
seats  vacated  during  that  of  the  incoming  legislature  which  commenced  on  12 
November 2015. Following  the general elections, on 19 November 2015, the  Sejm, 
through  an  accelerated  procedure,  amended  the  law  on  the  Constitutional  Tribunal, 
introducing  the  possibility  to  annul  the  judicial  nominations  made  by  the  previous 
legislature and to nominate five new judges. On 25 November 2015, the Sejm passed 
a  motion  annulling  the  five  nominations  by  the  previous  legislature  and  on 
2 December nominated five new judges.  

The Constitutional Tribunal was seised concerning the decisions of both the previous 
legislature  and  the  incoming  legislature.  The  Tribunal  consequently  delivered  two 
judgements, on 3 and 9 December 2015. In its judgment of 3 December 20157, the 
Constitutional Tribunal ruled inter alia that the previous legislature of the Sejm had 
been entitled to nominate three judges replacing the judges whose terms expired on 6 
November 2015. At the same time, the Tribunal clarified that the Sejm had not been 
entitled to elect the two judges replacing those whose term expired in December. The 
judgment also specifically referred to the obligation for the President of the Republic 
to  immediately  take  the  oath  from  a  judge  elected  by  the  Sejm.  On  9  December 
20158,  the  Constitutional  Tribunal  inter  alia  invalidated  the  legal  basis  for  the 
nominations by the new legislature of the Sejm of the three judges for the vacancies 
opened  up  on  6  November  2015  for  which  the  previous  legislature  had  already 
lawfully nominated judges.  

(11) 

(12) 

On  22  December  2015,  the  Sejm  adopted  a  law  amending  the  law  on  the 
Constitutional  Tribunal,  which  concerns  the  functioning  of  the  Tribunal  as  well  as 
the independence of its judges9.  

On  23  December  2015,  the  Commission  wrote  to  the  Polish  Government,  asking 
about the steps envisaged with respect to the above-mentioned two judgements of the 

7  K 34/15. 
8  K 35/15. 
9  Law of 22 December 2015 amending the Law of 25 June 2015 on the Constitutional Tribunal, published in the Official 

Journal on 28 December; item 2217. 

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(14) 

(15) 

(16) 

(17) 

Constitutional Tribunal. The Commission stated it would expect that the law adopted 
on 22 December 2015 is not put into force until all questions regarding its impact on 
the  independence  and  the  functioning  of  the  Tribunal  have  been  fully  and  properly 
assessed.  The  Commission  recommended  that  the  Polish  authorities  work  closely 
with  the  Venice  Commission.  On  11  January,  the  Commission  received  a  response 
from the Polish Government which did not remove existing concerns. 

On  23  December  2015,  the  Polish  Government  asked  for  an  opinion  of  the  Venice 
Commission  on  the  law  adopted  on  22  December  2015.  However,  the  Polish 
Parliament  did  not  await  this  opinion  before  taking  further  steps,  and  the  law  was 
published in the Official Journal and entered into force on 28 December 2015. 

In  December  2015  and  January  2016,  a  number  of  particularly  sensitive  new  laws 
were  adopted  by  the  Sejm,  several  among  them  through  accelerated  legislative 
procedures,  such  as,  in  particular,  a  media  law10,  a  new  Civil  Service  Act11,  a  law 
amending  the  law  on  the  Police  and  certain  other  laws12  and  a  law  on  the  Public 
Prosecution Office13.  

On 13 January 2016, the Commission held a first orientation debate in order to assess 
the situation in Poland. The Commission decided to examine the situation under the 
Rule  of  Law  Framework  and  mandated  First  Vice-President  Timmermans  to  enter 
into a dialogue with the institutions of the Republic of Poland in order to clarify the 
issues  at  hand  and  identify  possible  solutions.  On  the  same  day,  the  Commission 
informed the Polish Government accordingly.  

On  19  January  2016,  the  Commission  wrote  to  the  Polish  Government  offering  to 
contribute expertise and discuss matters related to the new media law. On 19 January 
2016, the Polish Government wrote to the Commission setting out its views on the 
dispute concerning the appointment of judges, referring inter alia to a constitutional 
custom relating to the appointment of judges.  

On  9  March  2016,  the  Constitutional  Tribunal  ruled  that  the  law  adopted  on  22 
December  2015  was  unconstitutional.  That  judgment  has  so  far  not  been  published 
by the Government in the Official Journal, with the consequence that it does not have 
legal  effect.  The  Government  officially  justifies  its  decision  by  claiming  that  the 
Tribunal  should  have  delivered  the  judgement  in  the  legally  prescribed  quorum,  as 
provided  by  the  law  which  was  declared  unconstitutional.  However,  in  the 
Constitutional  Tribunal  there  were  only  12  lawfully  appointed  judges,  and  three 
remaining judges appointed by the Sejm in October 2015 were awaiting to be sworn-
in by the President of the Republic. 

(18) 

On 11 March 2016, the Venice Commission adopted its opinion 'on amendments to 
the  Act  of  25  June  2015  on  the  Constitutional  Tribunal'14.  As  regards  the 
appointment of judges, the opinion called on the Polish Parliament to find a solution 
on  the  basis  of  the  rule  of  law,  respecting  the  judgments  of  the  Tribunal.  It  also 
considered, inter alia, that the high attendance quorum, the requirement of two thirds 

10  Law of 30 December 2015 amending the Broadcasting Law, published in Official Journal on 7 January 2016, item 25.  
11  Law of 30 December 2015 amending the Law on Civil Service and certain other acts, published in Official Journal on 8 

January 2016, item 34.  

12  Law of 15 January 2016 amending the Law on Police and other laws, published in Official Journal on 4 February 2016, 

item 147.  

13  Law of 28 January 2016 on the Prosecutor's Office, published in Official Journal on 15 February 2016, item 177; Law of 
28 January 2016 - Regulations implementing the Act - Law on the Prosecutor's Office, published in Official Journal on 15 
February 2016, item 178.  

14  Opinion no. 833/2015, CDL-AD(2016)001 ('CDL-AD(2016)001'). 

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majority for adopting judgements and the strict rule making it impossible to deal with 
urgent  cases,  especially  in  their  combined  effect,  would  have  made  the  Tribunal 
ineffective. Finally, it considered that a refusal to publish the judgement of 9 March 
2016 would further deepen the constitutional crisis in Poland. 

Following  the  judgment  of  9  March  2016,  the  Constitutional  Tribunal  resumed  the 
adjudication  of  cases.  The  Polish  Government  did  not  participate  in  these 
proceedings.  The  Polish  Government  furthermore  refused  to  publish  subsequently 
delivered judgements by the Constitutional Tribunal. 

On 13 April 2016, the European Parliament adopted a Resolution on the situation in 
Poland,  urging  the  Polish  Government  to  respect,  publish  and  fully  implement 
without further delay the Constitutional Tribunal’s judgment of 9 March 2016 and to 
implement  the  judgments  of  3  and  9  December  2015,  and  calling  on  the  Polish 
Government to fully implement the recommendations of the Venice Commission15.  

On 26 April 2016, the General Assembly of the Supreme Court of Poland adopted a 
resolution  attesting  that the  rulings of  the  Constitutional  Tribunal  are  valid,  even  if 
the Polish Government refuses to publish them in the Official Journal. 

The Rule of Law Opinion 

Between February 2016 and July 2016, the Commission and the Polish Government 
exchanged a number of letters and met at different occasions16.  

Despite  the  detailed  and  constructive  nature  of  the  exchanges  between  the 
Commission and the Polish Government, they were not able to resolve the concerns 
of  the  Commission.  On  1  June  2016,  the  Commission  adopted  an  Opinion 
concerning the rule of law in Poland. Following the dialogue that had been ongoing 
with  the  Polish  authorities  since  13  January  2016,  the  Commission  deemed  it 
necessary  to  formalise  its  assessment  of  the  current  situation  in  that  Opinion.  The 
Opinion  set  out  the  concerns  of  the  Commission  and  served  to  focus  the  ongoing 
dialogue with the Polish authorities towards finding a solution.  

On 24 June 2016, the Polish Government wrote to the Commission acknowledging 
receipt  of  the  Commission's  Rule  of  Law  Opinion  of  1  June  2016.  The  letter 
informed  the  Commission  about  the  state  of  play  of  Parliamentary  work  in  Poland 
including on a new law on the Constitutional Tribunal, and expressed the conviction 
that  the  work  undertaken  at  the  Parliament  on  a  new  law  on  the  Constitutional 
Tribunal was the right way to reach a constructive solution.  

On 22 July 2016, the Sejm adopted a new law on the Constitutional Tribunal which 
was  published  in  the  Official  Journal  on  1  August  2016.  At  various  stages  of  the 
legislative  process  the  Commission  had  provided  comments  and  discussed  the 
content of the draft law with the Polish authorities.  

The Rule of Law Recommendation (EU) 2016/1374 (1st Recommendation) 

On 27 July 2016, the Commission adopted a Recommendation regarding the rule of 
law in Poland. In its Recommendation the Commission explained the circumstances 

(19) 

(20) 

(21) 

2.2. 

(22) 

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(24) 

(25) 

2.3 

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15  European Parliament resolution of 13 April 2016 on the situation in Poland (2015/3031(RSP)).  
16  Letters from the Commission of 1 February 2016 and 3 March 2016; letters from the Polish Government of 29 February 
2016,  of  21  March  2016,  31  March  2016  and  of  24  June  2016;  meetings  between  the  Commission  and  the  Polish 
Government of 5 April 2016, 24 May 2016 and 26 May 2016.  

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in which it decided, on 13 January 2016, to examine the situation under the Rule of 
Law Framework and in which it adopted, on 1 June 2016, an Opinion concerning the 
rule  of  law  in  Poland.  The  Recommendation  also  explained  that  the  exchanges 
between  the  Commission  and  the  Polish  Government  were  not  able  to  resolve  the 
concerns  of  the  Commission.  In  its  Recommendation,  the  Commission  found  that 
there was a systemic threat to  the rule of law in  Poland  and  recommended  that  the 
Polish  authorities  take  appropriate  action  to  address  this  threat  as  a  matter  of 
urgency. In particular, the Commission recommended that the Polish authorities: (a) 
implement fully the judgments of the Constitutional Tribunal of 3 and  9 December 
2015  which  require  that  the  three  judges  that  were  lawfully  nominated  in  October 
2015  by  the  7th  term  of  the  Sejm  can  take  up  their  judicial  functions  in  the 
Constitutional  Tribunal,  and  that  the  three  judges  nominated  by  the  8th  term  of  the 
Sejm  to  already  occupied  posts  without  a  valid  legal  basis  do  not  take  up  their 
judicial  functions;  (b)  publish  and 
the 
Constitutional  Tribunal  of  9  March  2016  and  ensure  that  the  publication  of  future 
judgments  is  automatic  and  does  not  depend  on  any  decision  of  the  executive  or 
legislative  powers;  (c)  ensure  that  any  reform  of  the  law  on  the  Constitutional 
Tribunal  respects  the  judgments  of  the  Constitutional  Tribunal,  including  the 
judgments of 3 and 9 December 2015 and the judgment of 9 March 2016, and takes 
the  opinion  of  the  Venice  Commission  fully  into  account;  and  ensure  that  the 
effectiveness of the Constitutional Tribunal as a guarantor of the Constitution is not 
undermined  by  requirements  inconsistent  with  the  rule  of  law;  (d)  ensure  that  the 
Constitutional Tribunal can review the compatibility of the new law adopted on 22 
July 2016 on the Constitutional Tribunal before its entry into force and publish and 
implement fully the judgment of the Tribunal in that respect; (e) refrain from actions 
and  public  statements  which  could  undermine  the  legitimacy  and  efficiency  of  the 
Constitutional Tribunal. 

implement  fully 

judgments  of 

the 

(27) 

(28) 

(29) 

The Commission invited the Polish Government to solve the problems identified in 
the  Recommendation  within  three  months,  and  to  inform  the  Commission  of  the 
steps taken to that effect. The Commission noted that it remained ready to pursue a 
constructive  dialogue  with  the  Polish  Government.  The  Polish  Government  in  its 
reply of 27 October 2016 disagreed on all points with the position expressed in the 
Recommendation and did not announce any new measures to alleviate the rule of law 
concerns addressed by the Commission 

On 30 July 2016, the President of the Republic signed the law of 22 July 2016, which 
was published in the Official Journal on 1 August 2016.  

On 11 August 2016, the Constitutional Tribunal rendered a judgment on the  law of 
22  July  201617.  The  judgment  held  that  a  number  of  provisions  of  that  law,  all  of 
which  were  also  identified  as  a  concern  by  the  Commission  in  its  27  July  2016 
Recommendation, were unconstitutional18. The Polish Government did not recognise 
the validity of this judgment and did not publish it in the Official Journal.  

(30) 

On 16 August 2016, the Polish Government published 21 judgments of the Tribunal 
rendered in a period from 6 April 2016 to 19 July 2016. However, the judgments of 9 
March 2016 and of 11 August 2016 were not published by the Government.  

17  K 39/16. 
18  The grounds of unconstitutionality were notably the principles of the separation and balance of powers, the independence 
of  courts  and  tribunals  from  other  branches  of  power,  the  independence  of  judges  and  the  principle  of  integrity  and 
efficiency of the public institutions. 

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(32) 

(33) 

On  14  September  2016,  the  European  Parliament  adopted  a  Resolution  on  the 
situation in Poland19, inter alia calling on the Polish Government to cooperate with 
the  Commission  pursuant  to  the  principle  of  sincere  cooperation  as  set  out  in  the 
Treaty. 

On 14 October 2016, the Venice Commission adopted its opinion on the law of 22 
July  2016  on  the  Constitutional  Tribunal20.  Notwithstanding  improvements  as 
compared to the amending law of 22 December 2015, the opinion noted that the new 
law on the Constitutional Tribunal as adopted would considerably delay and obstruct 
its work, possibly make its work ineffective, as well as undermine its independence 
by  exercising  excessive  legislative  and  executive  control  over  its  functioning.  The 
opinion also criticized the system of proposing candidates for the post of President of 
the Tribunal to the President of the Republic, which could lead to a situation that a 
candidate  is  appointed  who  does  not  enjoy  the  support  of  a  substantial  number  of 
judges.  The  opinion  also  underlined  that  the  problem  of  the  appointment  of  judges 
has not been solved as recommended and that the implementation of the provision in 
the law of 22 July 2016 requiring the Tribunal’s President to assign cases to the three 
December  judges  would  be  contrary  to  the  Tribunal’s  judgments.  The  opinion 
concluded  that  by  adopting  the  law,  the  Polish  Parliament  assumed  powers  of 
constitutional revision which it did not have when it acted as the ordinary legislature. 
It considered that the Polish Parliament and the Government continued to challenge 
the Tribunal’s position as the final arbiter of constitutional issues and attributed this 
authority to themselves: they created new obstacles to the effective functioning of the 
Tribunal, and acted to further undermine its independence. According to the opinion, 
by  prolonging  the  constitutional  crisis,  they  obstructed  the  Constitutional  Tribunal, 
which  cannot  play  its  constitutional  role  as  the  guardian  of  democracy,  the  rule  of 
law  and  human  rights.  The  Polish  Government  decided  not  to  participate  in  the 
sitting  of  the  Venice  Commission  on  14  October  2016  as  it  considered  that  the 
opinion of the Venice Commission was one-sided and did not take into account the 
Government's position. 
On  31  October  2016,  the  United  Nations  Human  Rights  Committee21  expressed 
concerns about the negative impact of legislative reforms, including the amendments 
to the law on the Constitutional Tribunal of November and December 2015 and July 
2016, the disregard of the judgments of the Constitutional Tribunal, the functioning 
and  independence  of  the  Tribunal  and  the  implementation  of  the  International 
Covenant on Civil and Political Rights. The Committee urged Poland to immediately 
publish  officially  all  the  judgments  of  the  Tribunal,  to  refrain  from  introducing 
measures  that  obstruct  its  effective  functioning  and  to  ensure  a  transparent  and 
impartial process  for the  appointment  of its members  and  security of tenure, which 
meets all requirements of legality under domestic and international law. 

(34) 

On  7  November  2016,  the  Constitutional  Tribunal  rendered  a  judgment  on  the 
constitutionality of the provisions of the law of 22 July 2016 regarding the selection 
of  the  President  and  Vice-President  of  the  Tribunal22,  stating  that  the  constitution 

19  European  Parliament  resolution  of  14  September  2016  on  the  recent  developments  in  Poland  and  their  impact  on 

fundamental rights as laid down in the Charter of Fundamental Rights of the European Union (2016/2774(RSP)). 

20  Opinion no. 860/2016, CDL-AD(2016)026 ('CDL-AD(2016)026'). 
21  Concluding observations on the seventh periodic report of Poland. 
22  K 44/16; the Tribunal was forced to change its composition from full bench into a bench of five judges due to the refusal 
of three judges of the Tribunal to participate in the case and in view of the fact that the three judges that were lawfully 
nominated in October 2015 by the 7th term of the Sejm had not taken up their judicial functions in the Tribunal (see the 
ordinance of the President of the Constitutional Tribunal of 7 November 2016). 

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(36) 

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(38) 

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2.4. 

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must be interpreted to the effect that the President of the Tribunal shall be appointed 
by  the  President  of  the  Republic  from  amongst  candidates  which  have  obtained  a 
majority vote in the General Assembly of the Tribunal.  

On 1 and 2 December 2016, the Senate adopted the law of 30 November 2016 on the 
legal  status  of  judges  of  the  Constitutional  Tribunal  ('law  on  the  Status  of  Judges') 
and  the  law  of  30  November  2016  on  organisation  and  proceedings  before  the 
Constitutional Tribunal ('law on Organisation and Proceedings').  

On 14 December 2016, the European Parliament held a debate on the situation of the 
rule  of  law  in  Poland.  During  this  debate,  the  Commission  urgently  called  on  the 
Polish  authorities  not  to  put  into  force  the  new  laws  before  the  Constitutional 
Tribunal has had the occasion to examine their constitutionality. 

On  15  December  2016,  the  Senate  adopted  the  law  of  13  December  2016 
implementing the law on Organisation and Proceedings and the law on the Status of 
Judges ('Implementing law'). 

On  19  December  2016,  the  President  of  the  Republic  signed  the  three  new  laws 
governing the functioning of the Constitutional Tribunal which were published in the 
Official  Journal.  On  the  same  day,  the  President  of  the  Republic  appointed  judge 
Julia Przyłębska, a judge elected by the new Sejm, to the position of acting President 
of the Constitutional Tribunal. 

On 20 December 2016, judge Julia Przyłębska admitted the three judges nominated 
by the 8th term of the Sejm without a valid legal basis to take up their function in the 
Tribunal and convened a meeting of the General Assembly for the same day. In view 
of the short notice one judge was unable to participate and requested to postpone the 
meeting  for  the  next  day,  which  judge  Julia  Przyłębska  refused.  Out  of  14  judges 
present  at  the  meeting,  only  three  unlawfully  appointed  judges  and  three  judges 
appointed by the current governing majority cast their votes23. Two candidates were 
elected: Julia Przyłębska and Mariusz Muszyński, and were presented as candidate to 
the President of the Republic. On 21 December 2016, the President of the Republic 
appointed  judge  Julia  Przyłębska  to  the  post  of  President  of  the  Constitutional 
Tribunal. 

The Rule of Law Recommendation (EU) 2016/146 (2nd Recommendation) 

On  21  December  2016,  the  Commission  adopted  a  second  Recommendation 
regarding  the  rule  of  law  in  Poland.  The  Commission  found  that,  whereas  some  of 
the  issues  raised  in  its  first  Recommendation  had  been  addressed,  important  issues 
remained  unresolved,  and  new  concerns  had  arisen  in  the  meantime.  The 
Commission  also  found  that  the  procedure  which  had  led  to  the  appointment  of  a 
new  President  of  the  Constitutional  Tribunal  raised  serious  concerns  as  regards  the 
rule of law. The Commission concluded that there continued to be a systemic threat 
to the rule of law in Poland and invited the Polish Government to solve the problems 
identified as a matter of urgency, within two months. The Commission noted that it 
remained ready to pursue a constructive dialogue with the Polish Government on the 
basis of the Recommendation. 

(41) 

On  20  February  2017,  the  Polish  Government  replied  to  the  abovementioned 
Recommendation.  The  reply  disagreed  with  the  assessments  set  out  in  the 

23  Minutes of deliberations of the General Assembly of Judges of the Constitutional Tribunal of 20 December 2016. 

EN 

8 

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(42) 

(43) 

(44) 

(45) 

(46) 

(47) 

Recommendation  and  did  not  announce  any  new  action  to  address  the  concerns 
identified by the Commission. The reply emphasized that the appointment of the new 
President of the Tribunal on 21 December 2016 as well as the entry into force of the 
three new laws governing the functioning of the Constitutional Tribunal created the 
proper  conditions  for  the  functioning  of  the  Tribunal  after  a  period  of  paralysis 
caused  by  political  quarrels  of  politicians  of  the  opposition  in  which  the  former 
President of the Tribunal was also engaged. 

On 10 January 2017,  the Vice-President of the Constitutional Tribunal was obliged 
by the newly appointed President of the Tribunal to take his remaining leave. On 24 
March 2017 the mandatory leave was prolonged until the end of June 2017, despite 
the request of the Vice-President to resume his work as judge in the Tribunal as of 1 
April 2017. On 12 January 2017, the Minister of Justice launched a procedure before 
the Constitutional Tribunal to review the constitutionality of the election, in 2010, of 
three  judges  of  the  Tribunal.  Following  this  procedure,  cases  have  no  longer  been 
assigned  to  these  three  judges.  On  16  January  2017,  the  President  of  the  Venice 
Commission  issued  a  statement  expressing  his  concerns  about  the  worsening 
situation within the Tribunal. 

On 20 January 2017, the Polish Government announced a comprehensive reform of 
the judiciary comprising a set of laws, including draft laws on the National Council 
for the Judiciary and on Ordinary Courts Organisation to be presented in the course 
of 2017.  

On  1  March  2017,  a  group  of  50  members  of  the  Sejm  asked  the  Constitutional 
Tribunal  to  establish  the  unconstitutionality  of  the  provisions  of  the  law  on  the 
Supreme Court on the basis of which the First President of the Supreme Court had 
been elected. 

On  11  May  2017,  the  Sejm  adopted  the  law  on  the  National  School  of  Judiciary 
which was published on 13 June 2017. 

On 16 May 2017, the Commission informed the Council on the situation of the rule 
of law in Poland. There was broad agreement within the Council that the rule of law 
is  a  common  interest  and  a  common  responsibility  of  EU  institutions  and  Member 
States. A very large majority of Member States supported the Commission's role and 
efforts  to  address  this  issue.  Member  States  called  upon  the  Polish  Government  to 
resume  the  dialogue  with  the  Commission  with  a  view  to  resolving  the  pending 
issues  and  looked  forward  to  being  updated  as  appropriate  in  the  General  Affairs 
Council. 

On  23  June  2017,  the  European  Council  generally  endorsed  the  Country  Specific 
Recommendations  addressed  to  the  Member  States  in  the  context  of  the  2017 
European  Semester.  The  recommendations  addressed  to  Poland  contain  a  recital 
underlining  that  'Legal  certainty  and  trust  in  the  quality  and  predictability  of 
regulatory,  tax  and  other  policies  and  institutions  are  important  factors  that  could 
allow  an  increase  in  the  investment  rate.  The  rule  of  law  and  an  independent 
judiciary  are  also  essential  in  this  context.  Addressing  serious  concerns  related  to 
the  rule  of  law  will  help  improve  legal  certainty'.  On  11  July  2017,  the  Country 
Specific Recommendations were adopted by the Council24. 

24  Council Recommendation of 13 July 2017 on the 2017 National Reform Programme of Poland and delivering a Council 

opinion on the 2017 Convergence Programme of Poland. 

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(48) 

(49) 

(50) 

(51) 

(52) 

(53) 

(54) 

(55) 

2.5. 

(56) 

On 5 July 2017, following the end of the mandate of the previous Vice-President of 
the  Constitutional  Tribunal,  the  President  of  the  Republic  appointed  a  new  Vice-
President of the Tribunal, Mr. Mariusz Muszyński, despite the fact that he was one of 
the three judges in the Tribunal appointed unlawfully. 

On  12  July  2017,  a  group  of  members  of  the  Sejm  submitted  a  draft  law  on  the 
Supreme Court which stipulated, inter alia, the dismissal and forced retirement of all 
Supreme Court judges, save those indicated by the Minister of Justice. 

On  13  July  2017,  the  Commission  wrote  to  the  Polish  Government  expressing  its 
concerns about the recent legislative proposals relating to the judicial system and to 
the  Supreme  Court,  underlining  the  importance  of  refraining  from  adopting  these 
proposals in order to allow for a meaningful dialogue, and inviting the Polish Foreign 
Minister  and  Polish  Justice  Minister  to  a  meeting  to  that  end  at  their  earliest 
convenience.  On  14  July  2017,  the  Polish  Government  wrote  to  the  Commission 
reiterating its previous explanations on the situation of the Constitutional Tribunal. 

On  15  July  2017,  the  Senate  approved  the  law  on  the  National  Council  for  the 
Judiciary and the law on the Ordinary Courts Organisation. 

On  19  July  2017,  the  Polish  Government  replied  to  the  Commission's  letter  of  13 
July  2017,  referring  to  the  current  legislative  reforms  of  the  Polish  judiciary  and 
asking the Commission to present its concrete concerns relating to the new laws in 
order  to  have  a  further  discussion.  The  Commission  responded  to  the  letters  of  the 
Polish Government of 14 and 19 July 2017 by letter of 28 July 2017. 

On 22 July 2017, the Senate approved the law on the Supreme Court which was sent 
to  the  President  of  the  Republic  for  signature  along  with  the  law  on  the  National 
Council for the Judiciary and the law on Ordinary Courts Organisation. 

On  24  July  2017,  the  President  of  the  Republic  delivered  a  statement  about  his 
decision to refer back to the Sejm the law on the Supreme Court and the law on the 
National Council for the Judiciary. 

On  25  July  2017,  the  President  of  the  Republic  signed  the  law  on  the  Ordinary 
Courts Organisation. 
Rule of Law Recommendation (EU) 2017/1520 (3rd Recommendation) 

On  26  July  2017,  the  Commission  adopted  a  third  Recommendation  regarding  the 
Rule  of  Law  in  Poland,  complementary  to  its Recommendations  of  27  July  and  21 
December  2016.  In  this  Recommendation,  the  Commission  took  into  account  the 
developments that had occurred in Poland since the Commission's Recommendation 
of  21  December  2016.  The  concerns  of  the  Commission  related  to  the  following 
issues: 

(1) 

(2) 

the lack of an independent and legitimate constitutional review; 

the adoption by the Polish Parliament of new legislation relating to the Polish 
judiciary  which  raises  grave  concerns  as  regards  judicial  independence  and 
increases significantly the systemic threat to the rule of law in Poland:  

(a) 

the law amending the law on the Ordinary Courts Organisation ('law on 
Ordinary  Courts  Organisation');  published  in  the  Polish  Official  Journal 
on 28 July 2017 and entered into force on 12 August 2017; 

(b) 

the law amending the law on the National School of Judiciary and Public 
Prosecution,  the  law  on  Ordinary  Courts  Organisation  and  certain  other 

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10 

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laws ('law on the National School of Judiciary'); published in the Polish 
Official Journal on 13 June 2017 and entered into force on 20 June 2017; 

(c) 

(d) 

the law amending the law on the National Council for the Judiciary and 
certain  other  laws  ('law  on  the  National  Council  for  the  Judiciary'); 
approved  by  the  Senate  on  15  July  2017;  this  law  was  referred  back  to 
the Sejm on 24 July 2017 and did not enter into force; 

the law on the Supreme Court; approved by the Senate on 22 July 2017; 
this law was referred back to the Sejm on 24 July 2017 and did not enter 
into force. 

(57) 

In  its  third  Recommendation,  the  Commission  considered  that  the  situation  of  a 
systemic threat to the rule of law in Poland as presented in its Recommendations of 
27 July 2016 and 21 December 2016 has seriously deteriorated. In particular:  

(1)  The unlawful appointment of the President of the Constitutional Tribunal, the 
admission of the three judges nominated by the 8th term of the Sejm without a 
valid legal basis, the fact that one of these judges has been appointed as Vice-
President  of  the  Tribunal,  the  fact  that  the  three  judges  that  were  lawfully 
nominated  in  October  2015  by  the  previous  legislature  have  not  been  able  to 
take  up  their  function  of  judge  in  the  Tribunal,  as  well  as  the  subsequent 
developments  within  the  Tribunal  described  above  have  de  facto  led  to  a 
complete  recomposition  of  the  Tribunal  outside  the  normal  constitutional 
process  for  the  appointment  of  judges.  For  this  reason,  the  Commission 
considered that the independence and legitimacy of the Constitutional Tribunal 
are  seriously  undermined  and,  consequently,  the  constitutionality  of  Polish 
laws can no longer be effectively  guaranteed. The judgments rendered by the 
Tribunal under these  circumstances can  no longer be  considered as  providing 
an effective constitutional review; 

(2)  The law on the National School of Judiciary already in force, and the law on 
the  National  Council  for  the  Judiciary,  the  law  on  the  Ordinary  Courts 
Organisation and the law on the Supreme Court, should they enter into force, 
structurally undermine the independence of the judiciary in Poland and would 
have an immediate and concrete impact on the independent functioning of the 
judiciary  as  a  whole.  Given  that  the  independence  of  the  judiciary  is  a  key 
component  of  the  rule  of  law,  these  new  laws  increase  significantly  the 
systemic threat to rule of law as identified in the previous Recommendations;  

(3) 

the  dismissal  of  Supreme  Court 

In  particular, 
their  possible 
reappointment and other measures contained in the law on the Supreme Court 
would very seriously aggravate the systemic threat to the rule of law; 

judges, 

(4)  The  new  laws  raise  serious  concerns  as  regards  their  compatibility  with  the 
Polish Constitution as underlined by a number of statements, in particular from 
the  Supreme  Court,  the  National  Council  for  the  Judiciary,  the  Polish 
Ombudsman, the Bar Association and associations of judges and lawyers, and 
other  relevant  stakeholders.  However,  as  explained  above,  an  effective 
constitutional review of these laws is no longer possible; 

(5)  Finally, actions and public statements against judges and courts in Poland made 
by  the  Polish  Government  and  by  members  of  Parliament  from  the  ruling 
majority  have  damaged  the  trust  in  the  justice  system  as  a  whole.  The 
Commission underlined the principle of loyal cooperation between state organs 

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which  is,  as  highlighted  in  the  opinions  of  the  Venice  Commission,  a 
constitutional precondition in a democratic state governed by the rule of law. 

(58) 

The Commission invited the Polish Government to solve the problems identified in 
this  Recommendation  within  one month  of  receipt  of  the  Recommendation,  and  to 
inform  the  Commission  of  the  steps  taken  to  that  effect.  In  particular,  the 
Commission recommended the Polish authorities to: 

(1) 

restore  the  independence  and  legitimacy  of  the  Constitutional  Tribunal  as 
guarantor of the Polish Constitution;  

(2)  publish  and  implement  fully  the  judgments  of  the  Constitutional  Tribunal  of 

9 March 2016, 11 August 2016 and 7 November 2016; 

(3) 

(4) 

(5) 

(6) 

ensure  that  the  law  on  the  National  Council  for  the  Judiciary,  the  law  on 
Ordinary Courts Organisation and the law on the Supreme Court do not enter 
into force and that the law on the National School of Judiciary is withdrawn or 
amended in order to ensure its compliance with the Constitution and European 
standards on judicial independence;  

refrain  from  any  measure  interfering  with  the  tenure  of  the  Supreme  Court 
judges and their function; 

ensure  that any  justice  reform  upholds  the  rule of  law  and  complies  with  EU 
law  and  the  European  standards  on  judicial  independence  and  is  prepared  in 
close cooperation with the judiciary and all interested parties; 

refrain from actions and public statements which could undermine further the 
legitimacy  of  the  Constitutional  Tribunal,  the  Supreme  Courts,  the  ordinary 
courts, the judges, individually or collectively, or the judiciary as a whole.  

The Commission also asked the Polish authorities not to take any measure to dismiss 
or  force  the  retirement  of  the  Supreme  Courts  judges  as  these  measures  will  very 
seriously aggravate the systemic threat to the rule of law. The Commission indicated 
that,  should  the  Polish  authorities  take  any  measure  of  this  kind,  the  Commission 
stands ready to immediately activate Article 7(1) TEU. 

On 31 July 2017, the Sejm was formally notified the decision of the President of the 
Republic  to  veto  the  law  amending  the  Law  on  National  Council  for  the  Judiciary 
and the Law on the Supreme Court 

On  4  August  and  on  16  August  2017  the  Polish  Government  wrote  to  the 
Commission with a request for clarifications to its Recommendation of 26 July 2017, 
to  which  the  Commission  responded  by  letters  of  8  August  and  21  August  2017 
respectively. 

On  28  August  2017,  the  Polish  Government  replied  to  the  Recommendation  of  26 
the 
July  2017.  The  reply  disagreed  with  all  the  assessments  set  out 
Recommendation  and  did  not  announce  any  new  action  to  address  the  concerns 
identified by the Commission. 

in 

On 30 August 2017, the opinion of the OSCE Office for Democratic Institutions and 
Human  Rights  (ODIHR)  concluded  that  the  suspended  law  on  the  Supreme  Court 
does not comply with international standards on judicial independence25.  

(59) 

(60) 

(61) 

(62) 

(63) 

25  OSCE Office for Democratic Institutions and Human Rights (ODIHR), 30 August 2017, Opinion on Certain Provisions of 

the Draft Act on the Supreme Court of Poland.  

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(64) 

(65) 

(66) 

(67) 

(68) 

(69) 

(70) 

(71) 

(72) 

(73) 

(74) 

On  11  September  2017,  the  Polish  Government  initiated  a  campaign  named  'Fair 
Courts' aimed at gaining social support for the ongoing judicial reform. The National 
Council for the Judiciary and ordinary courts published several statements rectifying 
allegations directed against courts, judges and the Council during the campaign. 

On 11 September 2017, the Constitutional Tribunal in a panel of five judges declared 
the unconstitutionality of certain provisions of the Code of Civil Procedure allowing 
ordinary  courts  and  the  Supreme  Court  to  assess  the legality  of  the  appointment  of 
the President and the Vice-President of the Tribunal26. 

On  13  September  2017,  the  Minister  of  Justice  started  exercising  the  powers  to 
dismiss court presidents and vice-presidents pursuant to the law on Ordinary Courts 
Organisation. 

On  15  September  and  18  October  2017,  the  National  Council  for  the  Judiciary 
criticised the Minister of Justice's decisions to dismiss court presidents. The Council 
indicated  that  such  an  arbitrary  power  of  the  Minister  of  Justice  violates  the 
constitutional  principle  of  independence  of  courts  and  might  adversely  affect  the 
impartiality of judges.  

On 15 September 2017, the Sejm appointed a person to an already occupied position 
of  Judge  at the  Constitutional  Tribunal,  and the  President  of  the  Republic  accepted 
the oath on 18 September 2017.  

On 15 September 2017 the Sejm adopted the law on the National Freedom Institute – 
Centre  for  Civil  Society  Development  which  centralises  the  distribution  of  funds 
including for civil society organisations. 

On  22  September  2017,  the  United  Nations  Human  Rights  Council  discussed  the 
reports on Poland submitted within the framework of the third periodic review which 
contain recommendations on judicial independence and the rule of law. 

On 25 September 2017, the Commission informed the Council on the situation of the 
rule of law in Poland. There was broad agreement on the fact that the Rule of Law is 
a common interest and a common responsibility and on the need for Poland and the 
Commission to engage in a dialogue in order to find a solution. 

On  26  September  2017,  the  President  of  the  Republic  transmitted  to  the  Sejm  two 
new draft laws on the Supreme Court and on the National Council for the Judiciary.  

On 3 October 2017, the Sejm sent out the two presidential draft laws on the Supreme 
Court  and  the  National  Council  for  Judiciary  for  consultation  to  relevant 
stakeholders,  including  the  Ombudsman,  the  Supreme  Court  and  the  National 
Council for the Judiciary. 

On 6 and 25 October 2017, the Supreme Court published its opinions on the two new 
draft  laws  on  the  Supreme  Court  and  the  National  Council  for  the  Judiciary.  The 
opinions consider that the draft law on the Supreme Court would substantially curb 
its  independence  and  that  the  draft  law  on  the  Council  for  the  Judiciary  cannot  be 
reconciled with the concept of a democratic state governed by the rule of law. 

(75) 

On 11 October 2017, the Parliamentary Assembly of the Council of Europe adopted 
a resolution on new threats to the rule of law in Council of Europe member States, 
expressing concerns also about developments in Poland, which put at risk respect for 

26  K 10/17. 

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(76) 

(77) 

(78) 

(79) 

(80) 

(81) 

(82) 

(83) 

the rule of law, and, in particular, the independence of the judiciary and the principle 
of the separation of powers27.  

On  13  October  2017,  the  European  Network  of  Councils  for  the  Judiciary  (ENCJ) 
issued an opinion28 on the new draft law on the National Council for the Judiciary, 
underlining its inconsistency with European standards on Councils for the Judiciary. 

On 23 October 2017, following the third cycle of the Universal Periodic Review of 
Poland, the United Nations High Commissioner for Human Rights requested that the 
Polish authorities accept the United Nations recommendations on upholding judicial 
independence. 

On 24 October 2017, the Constitutional Tribunal in a panel including two unlawfully 
appointed  judges  declared  the  unconstitutionality  of  provisions  of  the  law  on  the 
Supreme  Court,  on  the  basis  of  which  inter  alia  the  current  First  President  of  the 
Supreme Court had been appointed. 

On  24  October  2017,  the  Constitutional  Tribunal,  in  a  panel  comprising  two 
unlawfully appointed judges, declared the constitutionality of provisions of the three 
laws on the Constitutional Tribunal of December 2016, including the provisions on 
the basis of which the two unlawfully appointed judges adjudicating in the case had 
been allowed to adjudicate in the Constitutional Tribunal. The motion of the Polish 
Ombudsman  on  recusal  of  the  two  unlawfully  appointed  judges  from  this  case  had 
been rejected by the Constitutional Tribunal. 

On 27 October 2017, the United Nations Special Rapporteur for the Independence of 
Judges  and  Lawyers,  Mr.  Diego  García-Sayán,  presented  his  preliminary 
observations29, according to which the two draft laws on the Supreme Court and the 
National  Council  for  the  Judiciary  raise  a  series  of  concerns  as  regards  judicial 
independence. 

On 31 October 2017, the National Council of the Judiciary adopted an opinion on the 
draft law on the National Council for the Judiciary presented by the President of the 
Republic. The Council observes that the draft law is fundamentally inconsistent with 
the  Polish  Constitution  by  providing  the  Sejm  with  the  power  to  appoint  judges-
members  of  the  Council  and  by  prematurely  terminating  constitutionally  protected 
terms of office of the current judges-members of the Council. 

On  10  November  2017,  the  Consultative  Council  of  European  Judges  (CCJE) 
adopted a statement raising concerns on judicial independence in Poland30. 

On 11 November 2017, the Ombudsman sent a letter to the President of the Republic 
comprising  an  assessment  of  the  two  new  draft laws  on the Supreme  Court and  on 
the  National  Council  for  the  Judiciary  and  recommending  that  they  should  not  be 
adopted as they would not guarantee that the judicial branch will remain independent 
from  the  executive  branch  and  that  citizens  will  be  able  to  exercise  their 
constitutional right to have access to an independent court. 

27  PACE, 11 October 2017, Resolution 2188 (2017), New threats to the rule of law in Council of Europe member States: 

selected examples. 

28  ENCJ,  13  October  2017,  Opinion  of  the  ENCJ  Executive  Board  on  the  request  of  the  Krajowa  Rada  Sądownictwa 

(National Council for the Judiciary) of Poland. 

29  United  Nations  Special  Rapporteur  on  the  independence  of  judges  and  lawyers,  27  October  2017,  Preliminary 

observations on the official visit to Poland (23-27 October 2017). 

30  CCJE(2017) 9, 10 November 2017, Statement as regards the Situation on the Independence of the Judiciary in Poland. 

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(84) 

(85) 

(86) 

(87) 

(88) 

On 13 November 2017, OSCE-ODIHR adopted an opinion on the new draft law on 
the  Supreme  Court  asserting  that  the  reviewed  provisions  are  incompatible  with 
international standards on judicial independence31.  

On  15  November  2017,  the  European  Parliament  adopted  a  resolution  on  the 
situation  of  the  rule  of  law  and  democracy  in  Poland,  expressing  support  for  the 
Recommendations  issued  by  the  Commission,  as  well  as  for  the  infringement 
proceedings,  and  considering  that  the  current  situation  in  Poland  represents  a  clear 
risk of a serious breach of the values referred to in Article 2 TEU32. 

On  24  November  2017,  the  Council  of  Bars  and  Law  Societies  of  Europe  (CCBE) 
called on Polish authorities not to adopt the two draft laws on the Supreme Court and 
on the National Council for the Judiciary as they could undermine the separation of 
powers  guaranteed  by  the  Polish  constitution33.  On  29  November  2017,  the 
Organisation  of  Judges  'Iustitia',  the  Helsinki  Foundation  for  Human  Rights  and 
Amnesty International issued a joint statement criticising the legislative procedure on 
the two presidential draft laws.  

On 5 December 2017, the European Network of Councils for the Judiciary (ENCJ) 
adopted  a  further  opinion  criticising  the  draft  law  on  the  National  Council  for  the 
Judiciary for not respecting the ENCJ's standards34. 

On  8  December  2017,  the  Venice  Commission,  at  the  request  of  the  Parliamentary 
Assembly  of  the  Council  of  Europe,  adopted  an  opinion  on  the  draft  law  on  the 
National Council for the judiciary, the draft law on the Supreme Court, and the law 
on the Ordinary Courts Organisation, as well as an opinion on the law on the public 
prosecutor's office35. The Venice Commission examined the law on Ordinary Courts 
Organisation, the draft law on the National Council of the Judiciary and the draft law 
on  the  Supreme  Court  proposed  by  the  President  of  the  Republic.  It  came  to  the 
conclusion that the law and the draft laws, especially taken together and seen in the 
context of the 2016 law on the public prosecutor’s office, enable the legislative and 
executive powers to interfere in a severe and extensive manner in the administration 
of  justice,  and  thereby  pose  a  grave  threat  to  the  judicial  independence  as  a  key 
element of the rule of law. It called on the President of the Republic to withdraw his 
proposals  and  start  a  dialogue  before  the  procedure  of  legislation  continues.  It  also 
urged  the  Polish  Parliament  to  reconsider  the  recent  amendments  to  the  law  on 
Ordinary Courts Organisation. 

(89) 

On 8 December 2017, the Council of Europe Commissioner for Human Rights issued 
a statement regretting the adoption by the Sejm of the laws on the Supreme Court and 
on  the  National  Council  for  the  Judiciary  which  would  further  undermine  the 
independence of the judiciary. 

31  OSCE-ODIHR, 13 November 2017, Opinion on Certain Provisions of the Draft Act on the Supreme Court of Poland (as 

of 26 September 2017).  

32  European  Parliament  resolution  of  15  November  2017  on  the  situation  of  the  rule  of  law  and  democracy  in  Poland 

(2017/2931(RSP)). 

33  CCBE,  24  November  2017,  Resolution  of  the  Plenary  Session  of  the  Council  of  Bars  and  Law  Societies  of  Europe 

(CCBE).  

34  ENCJ, 5 December 2017, Opinion of the ENCJ Executive Board on the adoption of the amendments to the law on the 

National Council for the Judiciary.  

35  Opinion 904/2017 CDL(2017)035 of the Venice Commission 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  Organisation  of  Ordinary  Courts  ('CDL(2017)035'),  and  Opinion  892/2017  CDL(2017)037  of  the  Venice 
Commission on the Act on the Public Prosecutor's Office as amended ('CDL(2017)037'). 

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(90) 

3. 

(91) 

On 8 December 2017, the two draft laws were adopted by the Sejm. On 15 December 
2017 the two laws were approved by the Senate. 

THE LACK OF AN INDEPENDENT AND LEGITIMATE CONSTITUTIONAL REVIEW 

Over a one-year period, six consecutive laws have been adopted regarding the Polish 
Constitutional Tribunal. These new laws raised a number of concerns as regards the 
rule of law which are presented below and have been detailed in the Commission's 
three  Recommendations  regarding  the  Rule  of  Law  in  Poland.  The  Commission 
underlines  in  that  respect  that  where  a  constitutional  justice  system  has  been 
established, its effectiveness is a key component of the rule of law. 

3.1. The composition of the Constitutional Tribunal 

(92) 

(93) 

(94) 

Despite the judgments referred to in paragraph 10 above, the three judges nominated 
by  the  previous  legislature  have  not  taken  up  their  function  of  judge  in  the 
Constitutional  Tribunal  and  their  oath  has  not  been  taken  by  the  President  of  the 
Republic. Conversely, the oath of the three judges nominated by the new legislature 
without  a  valid  legal  basis  was  taken  by  the  President  of  the  Republic  and,  on  20 
December 2016, after the end of the mandate of the former President of the Tribunal, 
they were admitted to take up their function as judge by the acting President of the 
Tribunal (see below).  

In  its  three  Recommendations,  the  Commission  has  recommended  that  the  Polish 
authorities implement fully the judgments of the Constitutional  Tribunal of 3 and 9 
December 2015 which require that the three judges that were lawfully nominated in 
October  2015  by  the  previous legislature  can  take  up their function  of judge  in  the 
Constitutional Tribunal, and that the three judges nominated by the new legislature 
without a valid legal basis no longer adjudicate without being validly elected.  

In its reply of 27 October 2016 the Polish Government considers that the judgments 
of 3 and 9 December 2015 of the Tribunal did not specify which judges were to take 
up  their  function  and  considers  that  the  new  legislature  of  the  Sejm  has  lawfully 
nominated  the  five  judges  in  December  2015.  This  reasoning  raises  serious  rule  of 
law concerns as it denies any effect of the two December judgments and contradicts 
the reasoning of the Tribunal as consistently reiterated, including in its judgment of 
11 August 2016; in this judgment, the Constitutional Tribunal found unconstitutional 
a provision of the law of 22 July 2016 on the Constitutional Tribunal which would 
enable the three judges nominated by the new legislature without a valid legal basis 
to take up their function while using the vacancies for which the previous legislature 
of the Sejm had already lawfully nominated three judges36. The reply concedes that 
in  the  operative  part  of  the  judgment  of  3  December  2015,  the  Constitutional 
Tribunal addressed the duty of the President of the Republic to immediately take an 
oath from a judge elected to the Tribunal by the Sejm. It takes however the view that 
that  judgment  cannot  bind  other  authorities  to  apply  provisions  in  the  manner 
specified in a given case. This interpretation limits the impact of the judgments of 3 
and 9 December 2015 to a mere obligation for the Government to publish them but 
would deny them any further legal and operational effect, in particular as regards the 
obligation for the President of the Republic to take the oath of the judges in question. 
This  interpretation  goes  against  the  principle  of  loyal  cooperation  between  state 

36  The Venice Commission in its opinion of 14 October 2016 also considered that the above provision is not a solution in 

line with the principle of the rule of law (CDL-AD(2016)026, para 106). 

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(95) 

(96) 

organs  which  is,  as  underlined  in  the  opinions  of  the  Venice  Commission,  a 
constitutional precondition in a democratic state governed by the rule of law. 

Also the Venice Commission considers that a solution to the current conflict over the 
composition  of  the  Constitutional  Tribunal  'must  be  based  on  the  obligation  to 
respect  and  fully  implement  the  judgments  of  the  Constitutional  Tribunal'  and 
'therefore  calls  on  all  State  organs  and  notably  the  Sejm  to  fully  respect  and 
implement the judgments'37.  

To conclude, the three judges that were lawfully nominated in October 2015 by the 
previous legislature have still not been able to take up their function of judge in the 
Constitutional Tribunal. By contrast, the three judges nominated by the 8th term of 
the  Sejm  without  a  valid  legal  basis  were  admitted  to  take  up  their  function  by  the 
acting President of the Tribunal. As a consequence, the Polish authorities have still 
not  implemented  fully  the  judgments  of  the  Constitutional  Tribunal  of  3  and  9 
December 2015. 

3.2. The publication of the judgments of the Constitutional Tribunal  

(97) 

(98) 

(99) 

The  Polish  Government  refuses  to  publish  certain  judgments  of  the  Constitutional 
Tribunal, 
judgment  of  9  March  2016  which  declared 
unconstitutional  the  law  adopted  on  22  December  2015  amending  the  Law  on  the 
Constitutional Tribunal38.  

in  particular 

the 

The Polish Government contested the legality of this judgment, as the Constitutional 
Tribunal did not apply the procedure foreseen by the law adopted on 22 December 
2015. However, the law of 22 December 2015 was itself the subject of constitutional 
review by the Constitutional Tribunal. Therefore, in its Recommendation of 27 July 
2016,  the  Commission  set  out  that  the  Constitutional  Tribunal  was  correct  not  to 
apply the procedure foreseen by the law adopted on 22 December 201539. This was 
also  recognised  by  the  Venice  Commission40.  The  Commission  considers  that  the 
judgment of 9 March 2016 is binding and must be respected.  

The  Polish  Government  also  refused  to  publish  other  judgments,  in  particular  the 
judgment  of  11  August  2016  concerning  the  law  of  22  July  2016  on  the 
Constitutional  Tribunal  and  the  judgement  of  7  November  2016  concerning  the 
provisions of the law of 22 July 2016 on the selection of the candidates for the post 
of  President  of  the  Tribunal.  These  two  judgments  are  of  particular  importance  for 
the  legitimacy  and  functioning  of  the  Tribunal:  the  first  judgment  confirms  the 
reasoning that the three judges nominated by the new legislature without a valid legal 
basis cannot take up their function as judge, while the second judgment concerns a 
procedural  requirement  for  the  appointment  of  the  President  of  the  Tribunal  which 
was not fulfilled for the appointment of the current President.  

37  Opinion CDL-AD(2016)001, para 136. 
38  Law  of  25  June  2015  on  the  Constitutional  Tribunal,  published  in  Official  Journal  on  30  July  2015,  item  1064,  as 
amended. The law adopted on 22 December 2015 was published in the Official Journal on 28 December; item 2217. The 
amendments inter alia increased the attendance quorum of judges for hearing cases, raised the majorities needed in the 
Constitutional Tribunal to hand down judgments by the full bench, required the handling of cases in chronological order 
and provided a minimum delay for hearings. 

39  See section 3 of the Recommendation. 
40  Venice  Commission  stated  on  this  point  that  'a  simple  legislative  act,  which  threatens  to  disable  constitutional  control, 
must itself be evaluated for constitutionality before it can be applied by the Court. […] The very idea of the supremacy of 
the Constitution implies that such a law, which allegedly endangers constitutional justice, must be controlled – and if need 
be, annulled – by the Constitutional Tribunal before it enters into force'; opinion CDL-AD(2016)001, para 41. 

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(100)  The  refusal of  the  Government  to  publish  judgments  of  the  Constitutional  Tribunal 
raises  serious  concerns  in  regard  of  the  rule  of  law,  as  compliance  with  final 
judgments is an essential requirement inherent in the rule of law. In particular, where 
the  publication  of  a  judgment  is  a  prerequisite  for  its  taking  effect  and  where  such 
publication is incumbent on a State authority other than the court which has rendered 
the judgment, an ex post control by that State authority regarding the legality of the 
judgment is incompatible with  the rule of law. The refusal to  publish the judgment 
denies the automatic legal and operational effect of a binding and final judgment, and 
breaches the rule of law principles of legality and separation of powers. 

(101) 

In  its  three  Recommendations,  the  Commission  has  recommended  that  the  Polish 
authorities  publish  and  implement  fully  the  judgements  of  the  Constitutional 
Tribunal and ensure that the publication of future judgements is automatic and does 
not  depend  on  any  decision  of  the  executive  or  legislative  powers.  However,  the 
three important judgements referred to above have still not been published. 

3.3. The appointment of the President of the Tribunal and the subsequent developments  

(102) 

In 2016, three laws have been adopted which significantly amended the proceedings 
for appointing the President of the Constitutional Tribunal. These laws were adopted 
in  view  of  the  ending  of  the  mandate  of  the  former  President  of  the  Tribunal  in 
December 2016. The laws established a specific transitory regime by establishing the 
new function of an acting President of the Tribunal who would operate until a new 
President was appointed. The acting President would be in charge of leading the new 
selection  process  for  the  appointment  of  the  new  President.  The  role  of  the  Vice 
President  (whose  mandate  was  still  active)  was  reduced  by  a  number  of  legislative 
changes41.  

(103)  Following her appointment, the new acting President immediately took a number of 
important decisions, in particular allowing the three judges unlawfully nominated in 
December 2015 by the new legislature of the Sejm to take up office and to participate 
in the process rendering the entire selection process unconstitutional.  

(104)  As  explained  in  its  Recommendation  of  21  December  201642,  the  Commission 
considers that the procedure which led to the appointment of a new President of the 
Tribunal  is  fundamentally  flawed  as  regards  the  rule  of  law.  The  procedure  was 
initiated by an acting President whose appointment raised serious concerns as regards 
the  principles  of  the  separation  of  powers  and  the  independence  of  the  judiciary  as 
protected by the Polish Constitution. Furthermore, the fact that the procedure allowed 
the three judges unlawfully nominated in December 2015 by the new legislature of 
the  Sejm  to  participate  in  the  process  rendered  the  entire  selection  process 
unconstitutional. Similarly, the fact that the lawfully elected judges in October 2015 
could  not  participate  in  the  process  equally  had  an  impact  on  the  outcome,  and 
therefore vitiated the process. Moreover, the very short notice for the convocation of 
the  General  Assembly  and  the  refusal  to  postpone  the  meeting  raised  serious 
concerns.  Finally,  the  election  of  candidates  by  six  judges  only  was  incompatible 
with the judgment of the Tribunal of 7 November 2016 according to which Article 
194(2) of the Constitution must be understood as providing that the President of the 
Tribunal  shall  be  appointed  by  the  President  of  the  Republic  from  amongst 
candidates  which  have  obtained  a  majority  vote  in  the  General  Assembly  of  the 
Tribunal.  

41  See section 5.2 of the Recommendation (EU) 2017/146. 
42  See section 5.3 and 5.4 of the Recommendation (EU) 2017/146. 

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(105)  The  Commission  also  notes  that  following  the  appointment  of  the  President  of  the 
Constitutional  Tribunal  a  number  of  developments  have  further  undermined  the 
legitimacy  of  the  Tribunal.  In  particular:  the  Vice-President  of  the  Tribunal,  whose 
position  is  recognised  in  the  Constitution,  was  obliged  by  the  newly  appointed 
President of the Tribunal to use his remaining leave until the end of his mandate; as a 
consequence of an action brought by the Prosecutor General to challenge the validity 
of  the  election  in  2010  of  three  judges  of  the  Constitutional  Tribunal,  these  judges 
were  subsequently  excluded  from  the  judicial  activities  of  the  Tribunal;  the  new 
President  of  the  Tribunal  changed  the  composition  of  benches  hearing  cases  and 
cases  were  reassigned  to  panels  consisting  in  part  of  unlawfully  appointed  judges; 
requests, in particular from the Ombudsman, aiming at removing judges unlawfully 
appointed  from  panels  adjudicating  cases  were  dismissed;  an  important  number  of 
judgements was delivered by benches which included unlawfully appointed judges; 
finally, after the end of the mandate of the Vice-President, an unlawfully appointed 
judge was appointed as the new Vice-President of the Tribunal.  

(106)  These  developments  have  de  facto  led  to  a  complete  recomposition  of  the 
Constitutional Tribunal outside the normal constitutional process for the appointment 
of judges. 

(107)  The  reply  of 

to 

the  Polish  authorities 

the  Commission's  complementary 
Recommendation  of  21  December  2016  did  not  alleviate  the  concerns  of  the 
Commission,  and  did  not  announce  any  concrete  measures  to  address  the  issues 
raised. The reply ignores the judgment of 7 November 2016 according to which the 
Constitution  requires  that  the  President  of  the  Tribunal  shall  be  appointed  from 
amongst candidates which have obtained a majority vote in the General Assembly of 
the  Tribunal.  The  reply  also  disregards  the  fact  that  the  Constitution  explicitly 
recognizes the position of Vice-President which is subject to  the same appointment 
procedure as the President of the Tribunal. Regarding the appointment of an acting 
President of the Constitutional Tribunal, the reply fails to identify any legal basis in 
the  Constitution,  and  considers  that  it  was  an  exceptional  adjustment  mechanism 
dictated  by  extraordinary  circumstances.  Also  the  reply  of  the  Polish  authorities  to 
the Commission's complementary Recommendation of 26 July 2017 did not alleviate 
the concerns of the Commission.  

(108) 

In  its  Recommendations,  the  Commission  also  raised  other  concerns  related  to  the 
three  laws  adopted  in  December  2016.  The  laws  contain  a  number  of  provisions 
which do not respect earlier judgments of the Constitutional Tribunal and added new 
concerns  which  relate  in  particular  to  disciplinary  proceedings,  the  possibility  of 
early retirement, the new requirements for judges of the Tribunal and the significant 
changes to the internal organisation of the Tribunal. 

3.4. The combined effect on the independence and legitimacy of the Tribunal  

(109)  The  Commission  considers  that  as  a  result  of  the  laws  adopted  in  2016  and  the 
developments  following  the  appointment  of  the  acting  President,  the  independence 
and  legitimacy  of  the  Constitutional  Tribunal  is  seriously  undermined  and  the 
constitutionality of Polish laws can no longer be effectively guaranteed43.  

43  According  to  Article  188  of  the  Constitution,  the  Constitutional  Tribunal  rules  on  the  conformity  of  statutes  and 
international  agreements  to  the  Constitution;  on  the  conformity  of  a  statute  to  ratified  international  agreements  whose 
ratification required prior consent granted by statute; on the conformity of legal provisions issued by central State organs 
to the Constitution, ratified international agreements and statutes; on the conformity to the constitution of the purposes or 
activities of political parties; and on complaints concerning constitutional infringements. According to Article 189 of the 

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(110) 

In  its  Recommendation  of  26  July  2017,  the  Commission  recommended  that  the 
Polish authorities take the following action:  

-   restore  the  independence  and  legitimacy  of  the  Constitutional  Tribunal  as 
guarantor of the Polish Constitution by ensuring that its judges, its President and 
its  Vice-President  are  lawfully  elected  and  appointed  and  by  implementing  fully 
the  judgments  of  the  Constitutional  Tribunal  of  3  and  9  December  2015  which 
require that the three judges that were lawfully nominated in October 2015 by the 
previous  legislature  can  take  up  their  function  of  judge  in  the  Constitutional 
Tribunal,  and  that  the  three  judges  nominated  by  the  new  legislature  without  a 
valid legal basis no longer adjudicate without being validly elected44; 

 -   publish and implement fully the judgments of the Constitutional Tribunal. 

(111)  None  of  the  recommended  actions  set  out  by  the  Commission  have  been 

implemented: 

(1) 

 The  three  judges  that  were  lawfully  nominated  in  October  2015  by  the 
previous legislature have still not been able to take up their function of judge in 
the Constitutional Tribunal. By contrast, the three judges nominated by the 8th 
term  of  the  Sejm  without  a  valid  legal  basis  were  admitted  to  take  up  their 
function by the acting President of the Tribunal; 

(2)  Three  important  judgements  of  the  Constitutional  Tribunal  of  9  March  2016, 

11 August 2016 and 7 November 2016 have still not been published;  

(3)  After  the  end  of  the  mandate  of  the  former  President  of  the  Constitutional 
Tribunal,  a  new  President  has  still  not  been  lawfully  appointed.  The  former 
President  was  not  replaced  by  the  Vice-President  of  the  Tribunal  but  by  an 
acting President and, subsequently, by the person appointed as President of the 
Tribunal on 21 December 2016. The appointment of the new President of the 
Constitutional Tribunal took place before an effective review of the law on the 
status  of 
the 
judges, 
Implementing law could occur.  

law  on  Organisation  and  Proceedings  and 

the 

(112)  The  fact  that  the  constitutionality  of  Polish  laws  can  no  longer  be  effectively 
guaranteed  is  a  matter  of  particular  concern  as  regards  respect  of  the  rule  of  law 
since,  as  explained  in  the  Recommendations  of  27  July  and  21  December  2016,  a 
number of particularly sensitive new legislative acts have been adopted by the Polish 
Parliament, such as a new Civil Service Act45, a law amending the law on the Police 
and  certain  other  laws46  and  laws  on  the  Public  Prosecution  Office47,  a  law  on  the 
Ombudsman  and  amending  certain  other  laws48,  a  law  on  the  National  Council  of 
Media49 and an anti-terrorism law50.  

Constitution, the Constitutional Tribunal also settles disputes over authority between central constitutional organs of the 
State. 

44  See the Recommendation (EU) 2017/146 and the Recommendation (EU) 2016/1374. 
45  Law of 30 December 2015 amending the law on Civil Service and certain other acts, published in Official Journal on 8 

January 2016, item 34.  

46  Law of 15 January 2016 amending the law on Police and other laws, published in Official Journal on 4 February 2016, 

item 147.  

47  Law of 28 January 2016 on the Prosecutor's Office, published in Official Journal on 15 February 2016, item 177; law of 
28 January 2016 - Regulations implementing the Act - law on the Prosecutor's Office, published in Official Journal on 15 
February 2016, item 178. 

48  Law of 18 March 2016 amending the law on the Ombudsman and certain other laws, published in Official Journal on 17 

May 2016, item 677. 

49  Law of 22 June 2016 on the National Council of Media, published in Official Journal on 29 June 2016, item 929. 

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(113)  Moreover, the adverse impact on the rule of law of the lack of an independent and 
legitimate  constitutional  review  in  Poland  is  now  seriously  aggravated  by  the  fact 
that  the  constitutionality  of  the  new  laws  relating  to  the  Polish  judicial  system 
mentioned above in paragraph 5(2) and analysed further in Section 4 can no longer 
be verified and guaranteed by an independent constitutional tribunal. 

4. 

THE THREATS TO THE INDEPENDENCE OF THE ORDINARY JUDICIARY  

(114)  The law on the Supreme Court, the law on the National Council for the Judiciary, the 
law on Ordinary Courts Organisation and the law on the National School of Judiciary 
contain a number of provisions which raise grave concerns as regards the principles 
of judicial independence and separation of powers. 

4.1. 

The law on the Supreme Court 

4.1.1. Dismissal and compulsory retirement of current Supreme Court judges 

(115)  The law on the Supreme Court lowers the general retirement age of Supreme Court 
judges from 70 to 6551. This measure applies to all judges currently in office. Judges 
who attained 65 years of age, or will attain that age within 3 months from the entry 
into force of the law, will be retired52. 

(116)  By lowering the retirement age and applying it to current Supreme Court judges, the 
law  terminates  the  mandate  and  potentially  retires  a  significant  number  of  current 
Supreme  Court  judges:  31  of  the  83  (37%)  according  to  the  Supreme  Court. 
Applying such a lowered retirement age to current judges of the Supreme Court has a 
particular strong negative impact on this specific Court, which is composed of judges 
who  are  by  nature  at  the  end  of  their  career.  Such  compulsory  retirement  of  a 
significant number of the current Supreme Court judges allows for a far reaching and 
immediate  recomposition  of  the  Supreme  Court.  That  possibility  raises  particular 
concerns  in  relation  to  the  separation  of  powers,  in  particular  when  considered  in 
combination with the simultaneous reforms of the National Council for the Judiciary. 
In fact : due to the lowering of the retirement age all new judges will be appointed by 
the  President  of  the  Republic  on  the  recommendation  of  the  newly  composed 
National Council for the Judiciary, which will be largely dominated by the political 
appointees. A forced retirement of current Supreme Court judges also raises concerns 
as  regards  the  principle  of  irremovability  of  judges,  which  is  a  key  element  of  the 
independence of judges as enshrined in the case law of the Court of Justice and of the 
European  Court  of  Human  Rights53,  and  in  European  standards54.  In  its opinion  on 
the draft law on the Supreme Court, the Venice Commission underlines that the early 

50  Law of 10 June 2016 on anti-terrorist actions, published in Official Journal on 24 June 2016, item 904. 
51  Article 37(1) of the law on the Supreme Court. This provision also applies to Supreme Administrative Court judges since 
Article 49 of the law of 25 July 2002 on administrative court organisation stipulates that matters related to the Supreme 
Administrative Court that are not governed by that act (the retirement regime is not) are governed mutatis mutandis by the 
law on the Supreme Court. 

52  Article 111(1) of the law on the Supreme Court. In addition, according to Article 111(3) of the law on the Supreme Court, 
all judges of the military chamber (regardless of their age) will be dismissed and retired without the possibility to ask the 
President of the Republic for prolongation of their active mandate.  

53  ECtHR Case Campbell and Fell v The United Kingdom, 28 June 1984, para 80; Case Henryk Urban and Ryszard Urban v 
Poland, 30 November 2011, para 45; Case  Fruni v Slovakia, 21 June 2011 para 145; and Case Brudnicka and others v 
Poland, 3 March 2005, para 41. 

54  Para  49  and  50  of  the  Recommendation  CM/Rec(2010)12  of  the  Committee  of  Ministers  to  member  states  on  judges: 

independence, efficiency and responsibilities ('2010 CoE Recommendation'). 

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(117) 

(118) 

retirement of the currently sitting judges undermines both their security of tenure and 
the independence of the Court in general55. 

Judges  should  be  protected  against  dismissal  through  the  existence  of  effective 
safeguards against undue intervention or pressure from other State powers56. Judicial 
independence requires guarantees sufficient to protect the person of those who have 
the task of adjudicating in a dispute57. The irremovability of judges during their term 
of office is a consequence of their independence and thus included in the guarantees 
of  Article  6(1)  ECHR58.  As  a  consequence,  judges  must  only  be  dismissed 
individually,  if  this  is  justified  on  the  basis  of  a  disciplinary  procedure  concerning 
their individual activity and presenting all guarantees for the defence in a democratic 
society.  Judges  cannot be  dismissed as a group and judges cannot be dismissed for 
general  reasons  not  related  to  individual  behaviour.  The  above  guarantees  and 
safeguards are lacking in the present case and the provisions concerned constitute a 
flagrant  violation  of  the  independence  of  judges  of  the  Supreme  Court  and  of  the 
separation of powers59, and therefore of the rule of law.  

In addition, the mandate of six years of the current First President, established in the 
constitution, will be prematurely terminated (constitutionally it should end in 2020). 
If the mandate of the First President is terminated, the appointment of an 'acting First 
President' by the President of the Republic will occur outside the normal procedure60: 
according to the constitution the First President should be appointed by the President 
of  the  Republic  from  among  candidates  proposed  by  the  general  assembly  of  the 
Supreme  Court61.  Such  a  premature  termination  of  a  constitutionally  enshrined 
mandate constitutes a serious violation of the principle of irremovability and security 
of  tenure.  The  appointment  of  an  acting  First  President  according  to  an  ad  hoc 
procedure without involvement of the judiciary raises serious concerns as regards the 
principle of separation of powers.  

(119)  According  to  the  explanatory  memorandum  of  the  law,  the  recomposition  of  the 
Supreme Court is indispensable because of the way the Supreme Court handled after 
1989 the 'decommunisation' cases and because there are still judges in the Court who 
either worked for, or adjudicated under, the previous regime62. The European Court 

55  CDL(2017)035 para 48. 
56  Case C-53/03 Syfait and Others, 31 May 2005, para 31; Case C-103/97 Köllensperger and Atzwanger, 4 Feb. 1999, para 

20. 

57  Case C-222/13 TDC, 9 October 2014, para 29-32; Case C-506/04 Wilson, 19 September 2006, para 53; Case C-103/97 
Köllensperger and Atzwanger, 4 February 1999, para 20-23; Case C-54/96 Dorsch Consult, 12 September 1997, para 36; 
Case C-17/00, De Coster, 29 November 2001, para 18-21; Case C-403/16, Hassani, 13 December 2017, para 40; ECtHR 
Case Baka v. Hungary, 20261/12, 23 June 2016, para 121. 

58  ECtHR Case Campbell and Fell v The United Kingdom, A80 (1984), 28 June 1984, para 80. 
59  The  new  rules  contradict  the  principle  of  irremovability  of  judges  as  a  key  element  of  the  independence  of  judges  as 
enshrined  in  the  2010  CoE  Recommendation  (para  49).  Accordingly,  Supreme  Court  judges  should  have  guaranteed 
tenure, and their mandates should not be prematurely terminated. Also decisions concerning the selection and career of 
judges  should  be  based  on  objective  criteria  pre-established  by  law  or  by  the  competent  authorities,  and  where  the 
government  or  the  legislative  power  take  decisions  concerning  the  selection  and  career  of  judges,  an  independent  and 
competent  authority  drawn  in  substantial  part  from  the  judiciary  should  be  authorised  to  make  recommendations  or 
express opinions which the relevant appointing authority follows in practice (para 44-48). 

60  According to Article 111(4) of the law on the Supreme Court the President of the Republic will entrust heading of the 
Supreme  Court  to  a  Supreme  Court  judge  of  his  own  choosing.  Such  an  'acting  First  President'  will  exercise  their 
functions  until  the  General  Assembly  of  judges presents  5  candidates  to  the  post  of  the  First  President  of  the  Supreme 
Court (Article 12). The General Assembly of Supreme Court judges will be able to at present these candidates no sooner 
than at least 110 judges of the Supreme Court have been appointed. 

61  Article 183(3) of the Polish constitution stipulates that 'the First President of the Supreme Court shall be appointed by the 
President of the Republic for a 6-year term of office from amongst candidates proposed by the General Assembly of the 
Judges of the Supreme Court.' 

62  Page 2 of the explanatory memorandum. 

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of  Human  Rights  has  clearly  underlined  that  a  lustration  process  must  be 
individualised  (e.g.  distinctions  must  be  made  between  different  levels  of 
involvement  with  the  former  regime)  and  considers  that  lustration  measures  taking 
place long after the end of the communist regime may be less justified in view of the 
diminishing  risks  existing  over  newly  created  democracies63.  There  are  other 
proportionate measures which the state could adopt in order to deal with individual 
judges  having  a  communist  background  (which  would 
transparent 
proceedings applied in individual cases before impartial organs acting on the basis of 
criteria pre-established by law)64.  

include 

In  its  opinion  on  the  draft  law  on  the  Supreme  Court,  the  Venice  Commission 
considers that it is hard to see why a person who was deemed fit to perform official 
duties  for  several  more  years  to  come  would  suddenly  be  considered  unfit.  The 
explanatory memorandum of the law may be understood as implying that, as a result 
of  the  reform,  most  senior  judges,  many  of  whom  have  served  under  the  previous 
regime, would retire. If this reading is correct, such approach is unacceptable: if the 
authorities  doubt  the  loyalty  of  individual  judges,  they  should  apply  the  existing 
disciplinary or lustration procedures, and not change the retirement age. 

(120) 

(121)  The  Venice  Commission  concludes  that  the  early  removal  of  a  large  number  of 
justices  of  the  Supreme  Court  (including  the  First  President)  by  applying  to  them, 
with  immediate  effect,  a  lower  retirement  age  violates  their  individual  rights  and 
jeopardises the independence of the judiciary as a whole; they should be allowed to 
serve  until  the  currently  existing  retirement  age65.  The  Venice  Commission 
underlines  in  particular  that  the  early  retirement  of  the  currently  sitting  judges 
undermines  both  their  security  of  tenure  and  the  independence  of  the  Court  in 
general66. 

(122)  Finally,  these  provisions  raise  constitutionality  concerns.  As  noted  by  the  Supreme 
Court and the Ombudsman, the dismissal and forced retirement of current Supreme 
Court  judges  violate  the  principle  of  judicial  independence  and  directly  affects  the 
right to an independent court. The Ombudsman notes that the institution of an acting 
First  President  of  the  Supreme  Court  constitutes  a  violation  of  the  rule  of  law  by 
breaching  the  principle  of  non-assumption  of  competences  of  state  powers,  the 
principle  of  separation  and  balance  of  powers,  and  the  principle  of  judicial 
independence. 

4.1.2. The power to prolong the mandate of Supreme Court judges 

(123)  According to the law, Supreme Court judges affected by the lowered retirement age 
and wishing to prolong their active mandate can make a request to the President of 
the Republic67.  

63  ECtHR Case Sõro v. Estonia, 3 September 2015, para 60-62. 
64  Para 44 – 47 and 50 of the 2010 CoE Recommendation. 
65  Opinion CDL(2017)035 para 130. 
66  Opinion CDL(2017)035 para 48. 
67  The request is to be made via the First President of the Supreme Court who provides an opinion on a judge's request. For 
the prolongation of the First President's mandate, the First President needs to provide to the President of the Republic the 
opinion of the college of the Supreme Court.  In the process of making the decision, the President of the Republic may 
seek a non-binding opinion of the NCJ (cf. Article 37(2)-(4) in conjunction with Article 111(1) of the law on the Supreme 
Court. It is noted that according to the Supreme Court's opinion, under the constitution such a decision by the President of 
the  Republic  would  require  a  countersignature  of  the  Prime  Minister,  in  accordance  with  Article  144(1)  and  (2)  of  the 
Polish constitution. 

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(124)  As regards the power of the President of the Republic to decide to prolong the active 
mandate of Supreme Court judges, there are no criteria, no time-frame  for taking a 
decision and no judicial review provided for in the law. A judge who has asked for 
the prolongation is 'at the mercy' of the decision of the President of the Republic. In 
addition,  the  President  of  the  Republic  will  be  in  position  to  decide  twice  on  the 
prolongation (each time for 3 years). These elements affect the security of tenure and 
will allow the President of the Republic to exert influence over active Supreme Court 
judges. The regime is contrary to the 2010 CoE Recommendation which requires that 
decisions concerning the selection and career of judges should be based on objective 
criteria  pre-established  by  law  and  that  there  should  be  an  independent  and 
competent authority drawn in substantial part from the judiciary authorised to make 
recommendations  or  express  opinions  which  the  relevant  appointing  authority 
follows in practice68. It also requires that judges concerned should have the right to 
challenge a decision relating to their career69.  

(125)  The new retirement regime adversely impacts the independence of judges70. The new 
rules create an additional tool through which the President of the Republic can exert 
influence on individual judges. In particular, the lack of any criteria for prolongation 
of  the  mandates  allow  for  undue  discretion,  undermining  the  principle  of 
irremovability of judges. While decreasing the retirement age, the law allows judges 
to  have  their  mandate  extended  by  the  President  of  the  Republic  for  up  to  6  years. 
Also, there is no time-frame for the President of the Republic to make a decision on 
the extension of the mandate, which allows the President to retain influence over the 
judges concerned for the  remaining time  of their judicial mandate. Even before the 
retirement  age  is  reached,  the  mere  prospect  of  having  to  request  the  President  for 
such a prolongation could exert pressure on the judges concerned. 

(126) 

In  its  opinion  on  the  draft  law  on  the  Supreme  Court,  the  Venice  Commission 
underlines  that  this  power  of  the  President  of  the  Republic  gives  him  excessive 
influence over Supreme Court judges who are approaching retirement age. For this 
reason,  the  Venice  Commission  concludes  that  the  President  of  the  Republic  as  an 
elected politician should not have the discretionary power to extend the mandate of a 
Supreme Court judge beyond the retirement age71. 

(127)  The new rules also raise constitutionality concerns. According to the Supreme Court 
and  the  Ombudsman's  opinions,  the  new  mechanism  of  prolongation  of  judicial 
mandates does not respect the principle of legality and separation of powers.  

4.1.3. The extraordinary appeal  

(128)  The  law  introduces  a  new  form  of  judicial  review  of  final  and  binding  judgements 
and  decisions,  the  extraordinary  appeal72.  Within  three  years73  from  the  entry  into 

68  Para  46  and  47.  This  regime  would  also  raise  concerns  with  the  Council  of  Europe  Plan  of  Action  on  Strengthening 
Judicial  Independence  and  Impartiality  CM(2016)36  final  (at  C.  ii;    '2016  CoE  Action  Plan')  and  CCJE  benchmarks 
(Opinion no. 1 on Standards concerning the Independence of the Judiciary and the Irremovability of Judges, para 25).  

69  Para 48 of the 2010 CoE Recommendation. 
70  Para 49 of the 2010 CoE Recommendation. 
71  Opinion CDL(2017)035 para 51 and 130. 
72  Article 89(1) of the law on the Supreme Court. 
73  Article 115 of the law on the Supreme Court. After the three-year period the appeal would need to be lodged within five 
years from a moment when the judgement concerned became final and lawful and within one year if the cassation appeal 
has been made, unless extraordinary appeal is brought to the detriment of the defendant, in such a case the appeal can be 
lodged no later than one year after the ruling becomes final (or, if the cassation has been lodged, no later than 6 months 
upon the examination of the cassation); cf. Article 89(4) of the Law on the Supreme Court. 

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force of the law the Supreme Court will be able to overturn74 completely or in part75 
any  final  judgement  delivered  by  a  Polish  court  in  the  past  20  years,  including 
judgements  delivered  by  the  Supreme  Court,  subject  to  some  exceptions76.  The 
power  to  lodge  the  appeal  is  vested  in  inter  alia  the  Prosecutor  General  and  the 
Ombudsman77. The grounds for the appeal are broad: the extraordinary appeal can be 
lodged  if  it  is  necessary  to  ensure  the  rule  of  law  and  social  justice  and  the  ruling 
cannot be repealed or amended by way of other extraordinary remedies, and either it 
(1)  violates  the  principles  or  the  rights  and  freedoms  of  persons  and  citizens 
enshrined in the Constitution; or (2) it is a flagrant breach of the law on the grounds 
of  misinterpretation  or  misapplication;  or  (3)  there  is  an  obvious  contradiction 
between the court's findings and the evidence collected78. 

(129)  This new extraordinary appeal procedure raises concerns as regards the principle of 
legal certainty which is a key component of the rule of law79. As noted by the Court 
of Justice, attention should be drawn to the importance, both for the EU legal order 
and national legal systems, of the principle of  res judicata: 'in order to ensure both 
stability  of  the  law  and legal relations  and  the sound  administration  of  justice,  it  is 
important  that  judicial  decisions  which  have  become  definitive  after  all  rights  of 
appeal  have  been  exhausted  or  after  expiry  of  the  time-limits  provided  for  in  that 
connection can no longer be called in question'80. As noted by the European Court of 
Human  Rights,  extraordinary  review  should  not  be  an  'appeal  in  disguise',  and  'the 
mere  possibility  of  there  being  two  views  on  the  subject  is  not  a  ground  for  re-
examination'81.  

(130) 

In  its  opinion  on  the  draft  law  on  the  Supreme  Court,  the  Venice  Commission 
underlined  that  the  extraordinary  appeal  procedure  is  dangerous  for  the  stability  of 
the Polish legal order. The opinion notes that it will be possible to reopen any case 
decided  in  the country  in the past 20 years  on virtually  any ground  and  the system 
could lead to a situation in which no judgement will ever be final anymore82. 

(131)  The new extraordinary appeal also raises constitutionality concerns. According to the 
Supreme  Court  and  the  Ombudsman,  the  law  affects  the  principle  of  stability  of 

74  If  five years have  elapsed  since  the  contested  ruling  became  final  and  the  ruling has  had  irreversible  legal  effects  or  if 
warranted by the principles or the rights and freedoms of persons and citizens enshrined in the Constitution, the Supreme 
Court may confine itself to confirming that the contested ruling is in breach of the law and indicating the circumstances 
which led it to issue such a decision (Cf. Article 89(4) and Article 115(2) of the law on the Supreme Court). 

75  Article 91(1) of the law on the Supreme Court. 
76  Criminal  cases  cannot  be  extraordinarily  appealed  from  to  the  detriment  of  the  defendant  more  than  one  year  after  the 
ruling becomes final (or, if the cassation has been lodged, no later than 6 months upon the examination of the cassation); 
there is also no possibility of appeals against judgements establishing the nullity of a marriage, annulling a marriage or 
pronouncing a divorce (only in so far as one or both of the parties remarried after the ruling became final) or a decision on 
adoption. The extraordinary appeal cannot concern petty offences or minor tax offences; cf. Article 90(3) and (4) of the 
law on the Supreme Court. 

77  Article 89(2) of the law on the Supreme Court. 
78  Article 89(1) items 1-3 of the law on the Supreme Court. 
79  ECtHR Case Brumărescu v. Romania, 28 October 1999, para 61; Case Ryabykh v. Russia, 3 March 2003, para 54 and 57; 
Case Miragall Escolano and others v Spain, 25 January 2000, para 33; also Phinikaridou v Cyprus, 20 December 2007 
para 52. 

80  Case C-224/01 Köbler, 30 September 2003, para 38. 
81  Moreira Ferreira v. Portugal (no. 2), 11 July 2017 (final), para 62. 
82  Opinion CDL(2017)035 para 58, 63 and 130. 

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jurisprudence and the finality of judgements83, the principle of protecting trust in the 
state and law as well as the right to have a case heard within a reasonable time84.  

4.1.4. Other provisions 
(132)  As  underlined  in  the  opinion  of  the  Venice  Commission  and  of  other  bodies85,  a 
number  of  other  provisions  in  the  Law  on  the  Supreme  Court  raise  concerns  as 
regards the principles of judicial independence and separation of powers.  

(133)  The new law establishes a new disciplinary regime for Supreme Court judges. Two 
types  of  disciplinary  officers  are  foreseen:  the  disciplinary  officer  of  the  Supreme 
Court appointed by the College of the Supreme Court for a four-year term of office86, 
and the extraordinary disciplinary officer appointed on a case-by-case basis by the 
President  of  the  Republic  from  among  Supreme  Court  judges,  ordinary  judges, 
military court judges and prosecutors87. Under Polish law, only disciplinary officers 
can  decide  on  the  initiation  of  disciplinary  proceedings  against  judges.  The 
appointment  of  an  extraordinary  officer  by  the  President  of  the  Republic  occurs 
without involvement of the judiciary and equals to a request to initiate a preliminary 
investigation.  Appointment  of  an  extraordinary  disciplinary  officer  to  an  ongoing 
disciplinary proceeding excludes the disciplinary officer of the Supreme Court from 
that proceeding88. The fact that the President of the Republic (and in some cases also 
the  Minister  of  Justice89)  has  the  power  to  exercise  influence  over  disciplinary 
proceedings against Supreme Court judges by appointing a disciplinary officer who 
will  investigate  the  case  ('disciplinary  officer')  which  will  exclude  the  disciplinary 
officer  of  the  Supreme  Court  from  an  on-going  proceeding,  creates  concerns  as 
regards the principle of separation of powers and may affect judicial independence. 
Such concerns have also been raised in the opinions of the OSCE-ODHIR and of the 
Supreme Court90   

(134)  The  law  also  removes  a  set  of  procedural  guarantees  in  disciplinary  proceedings 
conducted against ordinary judges91 and Supreme Court judges92: evidence gathered 

83  Both principles have been considered to be part of the rule of law by the Constitutional Tribunal; cf. judgements of the 

Constitutional Tribunal SK 7/06 of 24 October 2007 and SK 77/06 of 1 April 2008. 

84  Judgement SK 19/05 of 28 November 2006; SK 16/05 of 14 November 2007. 
85  In particular, opinions of the Supreme Court of 6 and 23 October, and 30 November 2017, the opinion of the Ombudsman 

of 11 November 2017 and the OSCE-ODIHR opinion of 13 November 2017.  

86  Article 74 of the law on the Supreme Court. 
87  Article 76(8) of the law on the Supreme Court; the President of the Republic can appoint the extraordinary disciplinary 
officer from among prosecutors proposed by the State Prosecutor if a disciplinary case concerns disciplinary misconduct 
that satisfies the criteria of an intentional crime prosecuted by public indictment or of intentional tax crimes. 

88  Article 76(8) of the law on the Supreme Court. 
89  According  to  article  76(9)  of  the  law  on  the  Supreme  Court,  the  Minister  of  Justice  can  notify  the  President  of  the 
Republic about the need to appoint an extraordinary disciplinary officer if there is a case of disciplinary misconduct that 
satisfies  the  criteria  of  an  intentional  crime  prosecuted  by  public  indictment  or  intentional  tax  crime.  It  appears  that 
whether a case satisfies these criteria will be determined autonomously by the Minister of Justice and the President of the 
Republic as their decisions on appointing the extraordinary disciplinary officer cannot be appealed from. 
90  OSCE-ODIHR opinion of 13 November 2017; para 119-121 ; Supreme Court opinion of 6 October, page 34. 
91  According to Article 108(17)-(19) of the law on the Supreme Court, the Minister of Justice is given the power to set the 
number  of  and  appoint  disciplinary  judges  for  ordinary  court  judges  without  consulting  the  judiciary.  Additionally,  the 
Minister of Justice would be able to personally control disciplinary cases conducted against ordinary court judges through 
disciplinary officers and an extraordinary disciplinary officer of the Minister of Justice appointed by himself (including 
under certain circumstances also from the prosecutors). Disciplinary officers appointed by the Minister of  Justice would 
be able to reopen closed investigations at request of the Minister of Justice.  

92  According  to  the  law,  provisions  enshrined  in  the  Law  on  Ordinary  Court  Organisation  including  those  concerning 
procedural  aspects  of  disciplinary  proceedings  apply  mutatis  mutandis  to  Supreme  Court  judges;  cf.  Article  72(1)  and 
Article 108 in conjunction with Article 10(1) of the law on the Supreme Court. The law on the Supreme Court amends in 
its Article 108 the law on Ordinary Courts Organisation.  

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in  violation  of  the  law  could  be  used  against  a  judge93;  under  certain  conditions 
evidence presented by the judge concerned could be disregarded94; the time-barring 
for disciplinary cases would be suspended for the period of disciplinary proceedings, 
which  means  that  a  judge  could  be  subject  to  a  proceeding  for  an  indefinite 
duration95;  finally,  disciplinary  proceedings  could  continue  even  if  the  judge 
concerned  was  absent  (including  when  the  absence  was  justified)96.  The  new 
disciplinary  regime  also  raises  concerns  as  to  its  compliance  with  the  due  process 
requirements  of  Art.  6(1)  ECHR  which  are  applicable  to  disciplinary  proceedings 
against judges97. 

(135)  The law modifies the internal structure of the Supreme Court, supplementing it with 
two new chambers. A new chamber of extraordinary control and public matters will 
assess cases brought under the new extraordinary appeal procedure98. It appears that 
this  new  chamber  will  be  composed  in  majority  of  new  judges99  and  will  ascertain 
the validity of general and local elections and examining electoral disputes, including 
in  European  Parliament  elections100.  In  addition,  a  new 
electoral  disputes 
autonomous101 disciplinary chamber composed solely of new judges102 will be tasked 
with  reviewing  in  the  first  and  second  instance  disciplinary  cases  against  Supreme 
Court  judges103.  These  two  new  largely  autonomous  chambers  composed  with  new 
judges  raise  concerns  as  regards  the  separation  of  powers.  As  noted  by  the  Venice 
Commission, while both chambers are part of the Supreme Court, in practice they are 
above  all  other  chambers,  creating  a  risk  that  the  whole  judicial  system  will  be 
dominated  by  these  chambers  which  are  composed  of  new  judges  elected  with  a 
decisive influence of the ruling majority104. Also, the Venice Commission underlines 
that the law will make the judicial review of electoral disputes particularly vulnerable 
to  political  influence,  creating  a  serious  risk  for  the  functioning  of  Polish 
democracy105. 

(136)  The law introduces lay judges, to be appointed by the Senate of the Republic106, to 
proceedings  before  the  Supreme  Court  concerning  the  extraordinary  appeals  and 
disciplinary  cases  examined  by  the  Supreme  Court.  As  observed  by  the  Venice 

93  Article  108(23)  of  the  law  on  the  Supreme  Court  in  terms  of  Article  115c  added  to  the  law  on  Ordinary  Courts 

Organisation. 

94  If the evidence was presented after time prescribed, cf. Article 108(22) of the law on the Supreme Court. 
95  Article 108(13) item b of the law on the Supreme Court.  
96  Article 108(23) of the law on the Supreme Court. 
97  ECtHR Case Vilho Eskelinen and others v Finland, 19 April 2007 para 62; Case Olujić v Croatia, 5 February 2009, para 
34-43; Case Harabin v Slovakia, 20 November 2012 para 118-124; and Case Baka v Hungary, 23 June 2016, para 100-
119. 

98  Article 26 and Article 94 of the law on the Supreme Court. 
99  Article 134 of the law on the Supreme Court; the former chamber of labour, social security and public affairs is split into 
two chambers, the chamber of labour and social security and the new chamber of extraordinary control and public affairs; 
this new chamber will be composed by new judges as all current judges are transferred to the chamber of labour and social 
security; current Supreme Court judges can request a transfer to this new chamber.  

100 A full list of tasks dealt with by this chamber is found in Article 26. 
101 The president of the disciplinary chamber is autonomous vis-à-vis the First President of the Supreme Court and budget of 
that chamber can be substantially increased in comparison to the overall budget of the Supreme Court (cf. Article 7(2) and 
(4), and Article 20 of the law on the Supreme Court). 

102 According to Article 131 of the law on the Supreme Court, until all the judges of the Supreme Court in the Disciplinary 

Chamber have been appointed, other Supreme Court judges cannot be transferred to a post in that Chamber. 
103 A full list of tasks dealt with by the disciplinary chamber is found in Article 27 of the law on the Supreme Court.  
104 Opinion CDL(2017)035 para 92. 
105 Opinion CDL(2017)035 para 43.  
106 Article 61(2) of the law on the Supreme Court. 

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Commission, introducing lay judges to the two new chambers of the Supreme Court 
puts the efficiency and quality of justice in danger107. 

4.2. The law on the National Council for the Judiciary 

(137)  According  to  the  Polish  Constitution  the  independence  of  judges  is  safeguarded  by 
the  National  Council  for  the  Judiciary108.  The  role  of  the  National  Council  for  the 
Judiciary has a direct impact on the independence of judges in particular as regards 
their  promotion,  transfer,  disciplinary  proceedings,  dismissal  and  early  retirement. 
For  example,  the  promotion  of  a  judge  (e.g.  from  district  court  to  regional  court) 
requires the President of the Republic to once again appoint the judge, and therefore 
the procedure for judicial assessment and nomination involving the National Council 
for  the  Judiciary  will  have  to  be  followed  again.  Also  assistant  judges  who  are 
already performing tasks of a judge must be assessed by the National Council for the 
Judiciary prior to their appointment as judge by the President of the Republic. 

(138)  For  this  reason,  in  Member  States  where  a  Council  for  the  Judiciary  has  been 
established, its independence is  particularly important  for avoiding undue influence 
from the Government or the Parliament on the independence of judges109. 

(139)  The law on the National Council for the Judiciary increases the concerns regarding 
the overall independence of the judiciary by providing for the premature termination 
of the mandate of all judges-members of the National Council for the Judiciary, and 
by  establishing  an  entirely  new  regime  for  the  appointment  of  its  judges-members 
which allows a high degree of political influence. 

(140)  According  to  Article  6  of  the  law  on  the  National  Council  for  the  Judiciary  the 
mandates of all the current judges-members of the National Council for the Judiciary 
will  be  terminated  prematurely.  This  termination  decided  by  the  legislative  powers 
raises  concerns  for  the  independence  of  the  Council  and  the  separation  of  powers. 
The Parliament will gain a decisive influence on the composition of the Council to 
the  detriment  of  the  influence  of  judges  themselves.  This  recomposition  of  the 
National Council for the Judiciary could already occur within one and a half month 
after  the  publication  of  the  law110.  The  premature  termination  also  raises 
constitutionality  concerns,  as  underlined  in  the  opinion  of  the  National  Council  for 
the Judiciary, of the Supreme Court and of the Ombudsman. 

(141)  Also, the new regime for appointing judges-members of the National Council for the 
Judiciary raises serious concerns. Well established European standards, in particular 
the 2010 Recommendation of the Committee of Ministers of the Council of Europe, 

107 Opinion CDL(2017)035 para 67. 
108 Article 186(1) of the Polish Constitution: 'The National Council of the Judiciary shall safeguard the independence of the 

courts and judges'. 

109 For  example,  in  the  context  of  disciplinary  proceedings  against  judges  conducted  by  a  Council,  the  European  Court  of 
Human Rights has questioned the level of influence of the legislative or executive authorities given that the Council was 
composed by a majority of members appointed directly by these authorities; ECtHR Case Ramos Nunes de Carvalho E Sá 
v Portugal, 55391/13, 57728/13 and 74041/13, 21 June 2016, para 77. 

110 Mandates of current judges-members would expire on the day preceding the beginning of a joint term of office of the new 
judges-members of the Council, but no later than 90 days from the entry into force of the law. The timeline is as follows: 
within  three  days  following  publication  of  the  law,  the  Marshal  of  the  Sejm  announces  the  start  of  the  nomination 
procedure. Within 21 days from this announcement candidates to posts of judges-members of the Council are presented to 
the Marshal of the Sejm by the authorized entities (groups of at least 25 judges or 2000 citizens). Upon the lapse of this 
21days term, the Marshal transmits the list of candidates to parliamentary clubs which will have seven days to propose up 
to nine candidates from that list. Subsequently the appointment procedure according to regular provisions takes place (see 
below); cf. Article 6 and 7 of the law amending the Law on the National Council for the Judiciary and Article 1(1), and 
(3) in terms of added Articles 11a and 11d of the Law amending the Law on the National Council for the Judiciary. 

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stipulate that 'not less than half the members of [Councils for the Judiciary] should be 
judges  chosen  by  their  peers  from  all  levels  of  the  judiciary  and  with  respect  for 
pluralism  inside  the  judiciary'111.  It  is  up  to  the  Member  States  to  organise  their 
justice  systems,  including  whether  or  not  to  establish  a  Council  for  the  Judiciary. 
However, where such a Council has been established, as it is the case in Poland, its 
independence must be guaranteed in line with European standards.  

(142)  Until  the  adoption  of  the  law  on  the  National  Council  for  the  Judiciary,  the  Polish 
system  was  fully  in  line  with  these  standards  since  the  National  Council  for  the 
Judiciary was composed of a majority of judges chosen by judges. Articles 1(1) and 
7  of  the  law  amending  the  law  on  the  National  Council  for  the  Judiciary  would 
radically  change  this  regime  by  providing  that  the  15  judges-members  of  the 
National Council for the Judiciary will be appointed, and can be re-appointed, by the 
Sejm112.  In  addition,  there  is  no  guarantee  that  under  the  new  law  the  Sejm  will 
appoint  judges-members  of  the  Council  endorsed  by  the  judiciary,  as  candidates  to 
these posts can be presented not only by groups of 25 judges, but also by groups of 
of at least 2000 citizens113. Furthermore, the final list of candidates to which the Sejm 
will  have  to  give  its  approval  en  bloc  is  pre-established  by  a  committee  of  the 
Sejm114. The new rules on appointment of judges-members of the National Council 
for  the  Judiciary  significantly  increase  the  influence  of  the  Parliament  over  the 
Council  and  adversely  affect  its  independence  in  contradiction  with  the  European 
standards.  The  fact  that  the  judges-members  will  be  appointed  by  the  Sejm  with  a 
three fifths majority does not alleviate this concern, as judges-members will still not 
be  chosen  by  their  peers.  In  addition,  in  case  such  a  three  fifths  majority  is  not 
reached, judges-members of the Council will be appointed by the Sejm with absolute 
majority of votes.  

(143)  This  situation  raises  concerns  from  the  point  of  view  of  the  independence  of  the 
judiciary.  For  example,  a  district  court  judge  who  has  to  deliver  a  judgment  in  a 
politically  sensitive  case,  while  the  judge  is  at  the  same  time  applying  for  a 
promotion to become a regional court judge, may be inclined to follow the position 
favoured  by  the  political  majority  in  order  not  to  put  his/her  chances  to  obtain  the 
promotion into jeopardy. Even if this risk does not materialise, the new regime does 
not provide for sufficient guarantees to secure the appearance of independence which 
is  crucial  to  maintain  the  confidence  which  tribunals  in  a  democratic  society  must 
inspire in the public115. Also assistant judges will have to be assessed by a politically 
influenced National Council for the Judiciary prior to their appointment as judge.  

(144)  The  Venice  Commission  concludes  that  the  election  of  the  15  judicial  members  of 
the  National  Council  of  the  Judiciary  by  Parliament,  in  conjunction  with  the 
immediate replacement of the currently sitting members, will lead to a far reaching 

111 Para 27; see also C item (ii) of the 2016 CoE Action Plan; para 27 of the CCJE Opinion no. 10 on the Council for the 

Judiciary in the service of society; and para 2.3 of the ENCJ 'Councils for the Judiciary' Report 2010-11. 

112 The  Constitution  stipulates  that  the  National  Council  for  the  Judiciary  is  composed  of  ex  officio  members  (the  First 
President  of  the  Supreme  Court,  the  Minister  of  Justice,  the  President  of  the  Supreme  Administrative  Court  and  a 
presidential  appointee)  and  elected  members.  The  elected  members  consist  of  four  deputies  'chosen  by  the  Sejm',  two 
senators 'chosen by the Senate' and 15 judges ('chosen from amongst' the common, administrative and military courts and 
the Supreme Court). 

113 Article 1(3) of the law on the National Council for the Judiciary adding an Article 11a(2) and (3): it is noted that each 

group (of judges and of citizens) may lodge more than one nomination for a judge-member of the Council. 

114 If parliamentary clubs do not present, in total, 15 candidates, the Presidium of the Sejm will choose them in order to create 
a list of 15 candidates which is then transmitted to the  Sejm committee (cf. Article 1(3) adding Article 11c and Article 
11d(1)-(4)). 

115 ECtHR Cases Morice v France, 29369/10, 23 April 2015, para 78; Cyprus v. Turkey, 25781/94, 10 May 2001, para 233.  

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(145) 

politicisation  of  this  body.  The  Venice  Commission  recommends  that,  instead, 
judicial members of the NCJ should be elected by their peers, as in the current Act116. 
It also observed that the law weakens the independence of the Council with regard to 
the  majority  in  Parliament  and  contributes  to  a  weakening  of  the  independence  of 
justice as a whole117.  

In their opinions concerning the draft law, the Supreme Court, the National Council 
for  the  Judiciary  and  the  Ombudsman  raised  a  number  of  concerns  as  regards  the 
constitutionality  of  the  new  regime.  In  particular,  the  National  Council  for  the 
Judiciary  notes  that  under  the  Polish  constitution,  the  Council  serves  as  a 
counterweight to the parliament which has been constitutionally authorized to decide 
on  the  content  of  law.  The  political  appointment  of  judges-members  and  the 
premature  termination  of  mandates  of  the  current  judges-members  of  the  Council 
therefore  violates  the  principles  of separation  of  powers  and  judicial independence. 
As explained in the previous Recommendations, an effective constitutional review of 
these provisions is currently not possible. 

4.3. The law on Ordinary Courts Organisation 

4.3.1. Retirement age and the power to prolong the mandate of judges 

(146)  Articles 1(26)b-c and 13(1) of the law on Ordinary Courts Organisation stipulate that 
the retirement regime applicable to ordinary judges will be reduced from 67 to 60 for 
female judges and from 67 to 65 for male judges and the Minister of Justice will be 
granted the power to decide on the prolongation of judicial mandates (until the age of 
70) on the basis of vague criteria. Pending this decision the judges concerned remain 
in office.  

(147)  The  new  retirement  regime  would  adversely  impact  on  the  independence  of 
judges118.  The  new  rules  create  an  additional  tool  through  which  the  Minister  of 
Justice can exert influence on individual judges. In particular, the vague criteria for 
prolongation of the mandates allow for undue discretion, undermining the principle 
of  irremovability  of  judges119.  While  decreasing  the  retirement  age,  the  law  allows 
judges to have their mandate extended by the Minister of Justice for up to ten years 
for female judges and five years for male judges. Also, there is no time-frame for the 
Minister of Justice to make a decision on the extension of the mandate, which allows 
the  Minister  of  Justice  to  retain  influence  over  the  judges  concerned  for  the 
remaining time of their judicial mandate. Even before the retirement age is reached, 
the mere prospect of having to request the Minister of Justice for such a prolongation 
could exert pressure on the judges concerned.  

(148)  By decreasing the retirement age of judges while making prolongation of the judicial 
mandate  conditional  upon  the  decision  of  the  Minister  of  Justice,  the  new  rules 
undermine  the  principle  of  irremovability  of  judges  which  is  a  key  element  of  the 
independence of judges according to the case law of the Court of Justice and of the 
European Court of Human Rights. Among the requirements of an independent court, 
the  Court  of  Justice  stated  that  judges  should  enjoy  personal  and  operational 
independence  in  the  exercise  of  their  duties  and  should  also  be  protected  against 

116 Opinion CDL(2017)035 para 130. 
117 Opinion CDL(2017)035 para 31. 
118 2010 CoE Recommendation, para 49. 
119 According  to  the  law,  the  Minister  of  Justice  decides  on  whether  or  not  to  prolong  mandate  of  a  judge,  'taking  under 
consideration rational use of common court personnel and the needs resulting from the workload of particular courts' (cf. 
art. 1(26)(b) of the law).  

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dismissal through the existence of effective safeguards against undue intervention or 
pressure from the executive120. The provisions concerned are also not in line with the 
European standards according to which judges should have guaranteed tenure until a 
mandatory  retirement  age,  where  such  retirement  age  exists.  The  Venice 
Commission shares the concerns of the Commission121. 

(149)  The  Commission  notes  that  the  new  rules  also  raise  constitutionality  concerns. 
According to the opinion of the Supreme Court122, allowing the Minister of Justice to 
decide  on  the  prolongation  of  a  judge's  mandate,  in  combination  with  lowering  the 
retirement  age  of  judges,  violates  the  principle  of  irremovability  of  judges  (art. 
180(1)  of  the  Constitution).  As  explained  above,  the  Commission  recalls  that  an 
effective constitutional review of these provisions is currently not possible 

(150)  The reply of the Polish authorities to the Commission's Recommendation of 26 July 
2017 does not alleviate the concerns of the Commission and does not announce any 
concrete measures to address the issues raised by the Commission. The reply ignores 
the pressure the Minister of Justice can exert on individual judges before deciding on 
giving  his  consent  for  the  judges  concerned  to  remain  in  office  after  they  have 
reached the retirement age.  

4.3.2. The court presidents 

(151) 

In the Polish legal system, court presidents have a dual role: they do not only have a 
responsibility as court managers, but they also perform judicial functions. The law on 
Ordinary  Courts  Organisation  raises  concerns  with  regard  to 
the  personal 
independence of court presidents when exercising their judicial function. 

Power to dismiss 

(152)  Articles 17(1) and 18(1) of the law on Ordinary Courts Organisation include rules on 
the  dismissal  of  court  presidents  and  vice-presidents.  During  a  six-month  period 
following the entry into force of the law, the Minister of Justice is granted the power 
to  dismiss  presidents  of  courts  without  being  bound  by  concrete  criteria,  with  no 
obligation  to  state  reasons,  and  with  no  possibility  for  the  judiciary  to  block  these 
decisions. In addition, no judicial review is available against a dismissal decision of 
the Minister of Justice.  

(153)  The  concern  of  the  Commission  relates  to  the  powers  of  the  Minister  of  Justice 
during this six-month period. After this six-month period, according to Article 1(7), 
the  Minister  of  Justice  will  still  be  able  to  dismiss  presidents  of  courts,  but  the 
National  Council  for  the  Judiciary  would  have  to  be  consulted  by  the  Minister  of 
Justice and would be able to block the planned dismissal by a resolution adopted by 
two thirds majority of vote123.  

Power to appoint 

(154)  According to Article 1(6) of the law on Ordinary Courts Organisation, the Minister is 
granted  the  power  to  appoint  presidents  of  courts.  The  only  applicable  criteria  are 
that the court president must be appointed from among appeal court or regional court 
judges,  for  the  position  of  president  of  an  appeal  court;  from  among  appeal  court, 

120 Case C-53/03 Syfait and Others, 31 May 2005, para 31; Case C-103/97 Köllensperger and Atzwanger, 4 February 1999, 

para 20. 

121 Opinion CDL-AD(2017)035, para 100-109.  
122 Opinion of the Supreme Court of 28 April 2017. 
123 Article 1(7) of the law on Ordinary Courts Organisation provides that if the NCJ fails to deliver an opinion within 30 days 
of the day on which the Minister of Justice presents the planned dismissal, this shall not be an obstacle to the dismissal. 

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regional  court  or  district  court  judges,  for  the  position  of  president  of  a  regional 
court;  and  from  among  regional  court  or  district  court  judges,  for  the  position  of 
president  of  a  district  court.  There  is  no  obligation  for  the  Minister  of  Justice  to 
consult  the  judiciary  for  such  decision.  Only  after  the  appointment  of  the  court 
president, the Minister presents the new president to the general assembly of judges 
of  the  relevant  court.  This  power  of  the  Minister  of  Justice  to  appoint  a  court 
president does not change after the lapse of the six months period.  

Effects of the powers to dismiss and appoint 

(155)  Given that court presidents are active judges, the above powers to arbitrarily dismiss, 
during  the  six-month  period,  and  appoint  court  presidents  allow  the  Minister  of 
Justice  to  retain  influence  over  court  presidents  which  may  affect  their  personal 
independence when exercising judicial functions. For example, a court president who 
is called upon to deliver a judgment in a sensitive case against the State may feel the 
pressure  from  the  Minister  of  Justice  to  follow  the  position  of  the  Government  in 
order to avoid being dismissed as a court president, rather than adjudicating the case 
independently  on  the  basis  of  its  merits.  Judicial  independence  requires  that  judges 
are  not  subordinated  to  any  other  body  when  adjudicating  cases  and  be  protected 
against  external  interventions  or  pressure  liable  to  jeopardise  their  independent 
judgment as regards proceedings before them124. 

(156)  Also  for  judges  who  seek  to  become  court  presidents,  such  discretionary  power  of 
the Minister of Justice may influence the way they adjudicate cases, in particular on 
sensitive political cases in order not to reduce their chances of being appointed court 
presidents. Their personal independence would as a result be equally affected, when 
adjudicating cases. 

(157) 

In  addition,  it  should  be  noted  that  court  presidents,  in  their  capacity  as  court 
managers, have important powers over other judges. The discretionary power of the 
Minister of Justice to dismiss and appoint court presidents could influence the way 
court  presidents  use  these  powers  as  court  managers  over  other  judges.  This  could 
result in an interference with the personal independence of these judges. The powers 
granted  to  the  Minister  of  Justice  will  therefore  have  an  indirect  effect  also  on  the 
independence of the judges  who are subject to  the authority of the court presidents 
exposed  to  the  influence  of  the  Minister  of  Justice.  For  example,  court  presidents 
have  the  power  to  replace  judges in  their  function  of  heads  of  division  or  heads  of 
section of courts125, the power to issue written notification to these heads of division 
and section which may be coupled with a reduction in the post allowance received by 
these  heads  of  division  and  section  in  case  of  deficiencies126,  and  the  power  to 
transfer judges without their consent within the structure of a court over which they 
preside  (which  covers  the  relevant  judicial  district  of  a  given  court,  and  may 
comprise places of work located in different cities)127.  

124 Case  C-503/15  Margarit  Panicello,  16  February  2017,  para  37-38;  Case  C-203/14  Consorci  Sanitari  del  Maresme,  6 
October 2015, para 19; Case C-222/13 TDC, 9 October 2014, para 30; Joined Cases C-58/13 and C-59/13 Torresi, 17 July 
2014, para 22; Case C-506/04 Wilson, 19 September 2006, para 51. 

125 According to Articles 17(2) and 18(2) of the law on Ordinary Courts Organisation the power of presidents of appeal and 
regional  courts  to  replace  judges  in  their  function  of  heads  of  division,  deputy  heads  of  division,  heads  of  section  and 
inspecting judges is granted for six months following the entry into force of the law.  

126 Article 1(13)(b) of the law on Ordinary Courts Organisation. 
127 Article 1(5)(b) of the law on Ordinary Courts Organisation.  

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(158) 

In  its  opinion128,  the  Venice  Commission  underlined  that  the  new  law  enables  the 
executive powers to interfere in a severe and extensive manner in the administration 
of justice and poses a grave threat to the judicial independence as a key element of 
the  rule  of  law.  The  law  does  not  sufficiently  protect  court  presidents  against 
arbitrary dismissals, and the decision of the Minister of Justice to appoint/dismiss a 
court  president  should  be  subject  to  approval  by  the  National  Council  for  the 
Judiciary  or  by  the  general  assembly  of  judges  of  the  respective  court,  taken  by  a 
simple  majority of votes. Also, in the Rules  of Procedure the Minister of Justice is 
competent  to  set  'detailed  rules  on  the  assignment  of  cases'  and  the  'method  of 
random  of  allocation  of  cases'  and  may  also  fix  special  rules  where  the  random 
allocation  of  cases  is  impossible  or  inefficient.  As  underlined  by  the  Venice 
Commission,  this  power  may  be  used  to  interfere  with  the  system  of  random 
allocation of cases; setting of the method of distribution of cases should not be within 
the discretionary power of the Minister of Justice129. 

(159)  Moreover, opinions of the Supreme Court, the National Council for the Judiciary and 
raise 
the  Ombudsman  have  pointed  out 
constitutionality concerns. In particular, allowing for such possibility of dismissal of 
court  presidents  by  the  Minister  of  Justice  disregards  the  principles  of  judicial 
independence  and  separation  of  powers.  However,  in  the  current  circumstances  the 
constitutionality of these provisions can no longer be verified and guaranteed by an 
independent constitutional tribunal. 

the  provisions  concerned 

that 

(160)  The  European  Court  of  Human  Rights  has  established  a  clear  link  between  the 
dismissal from the position of court president and judicial independence. In the Baka 
case, the European Court of Human Rights found that the premature removal of the 
applicant  from  his  position  as  President  of  the  Supreme  Court,  even  though  the 
applicant remained in office as judge, defeated rather than served the very purpose of 
maintaining the independence of the judiciary130. 

(161)  According to the available information, the Minister of Justice has so far dismissed 
24  and  appointed  at  least  32  court  presidents  (this  figure  includes  appointments  to 
regular vacant posts). 

(162)  The reply of the Polish authorities to the Commission's Recommendation of 26 July 
2017 does not alleviate the concerns of the Commission, and does not announce any 
concrete measures to address the issues raised by the Commission. The reply denies 
that  the  powers  of  the  Minister  of  Justice  interfere  with  the  independence  of  court 
presidents  as  judges ruling  on  cases  and  underlines  that  the  powers  of  the  Minister 
only  concern  the  administrative  activities  of  court  presidents.  However,  the  reply 
ignores  that  the  power  to  arbitrarily  dismiss  court  presidents  during  the  six-month 
period allows the Minister to retain influence over court presidents which may affect 
their personal independence when adjudicating cases. 

4.3.2. Other concerns 

(163)  The Minister of Justice may address to a president of a lower court 'written remarks' 
concerning the alleged mismanagement by the latter of his court. As a result of such 
'written remarks', the president of the lower court may suffer a reduction of the post 

128 Opinion CDL-AD(2017)035, para 125.  
129 Opinion CDL-AD(2017)035, para 120. 
130 ECtHR, Case Baka v. Hungary, 20261/12, 23 June 2016, para 172. 

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allowance for up to 50% for up to six months131. The Minister himself may issue a 
'written notice' addressed to the president or vice-president of the court of appeal, and 
reduce the post allowance accordingly. Since any reduction of the emoluments of a 
judge  as  a consequence of the judge's behaviour  is  to  be  regarded as  a  disciplinary 
sanction132,  the  Minister  of  Justice  should  not  be  able  to  decide  on  such  reduction 
single-handedly without any underlying judicial decision.  

4.4. Other legislation 

4.4.1. The law on the National School for Judiciary 

(164)  Other  legislation  has  been  adopted by  the  new  legislature which  raises  concerns  as 

regards judicial independence and separation of powers. 

(165)  Under  Articles  2(1)  and  2(36)  of  the  law  on  the  National  School  of  Judiciary, 
assistant judges are entrusted with the tasks of judge in district courts for a period of 
four  years.  In  particular,  assistant  judges  will  be  allowed  to  act  as  single  judges  in 
district courts.  

(166)  However, under the Polish legal system, assistant judges do not have the same status 
as  judges133.  Assistant  judges  are  appointed  for  the  limited  term  of  four  years  and 
after  36  months  they  can  start  applying  for  new  proceedings  to  become  judges. 
Assistant  judges  are  not  subject  to  the  same  guarantees  for  protecting  judicial 
independence  as  those  applicable  to  judges    for  example  as  regards  the 
appointment,  which  is  not  subject  to  the  same  procedure  as  for  judges.  Unlike  the 
position  of  judges,  the  position  of  assistant  judges  performing  judicial  functions  is 
not  envisaged  in  the  Constitution.  This  implies  that  their  status,  as  well  as  the 
guarantees  for  their  independence,  can  be  modified  by  ordinary  law,  and  do  not 
require any change of the Constitution134. The fact that assistant judges are allowed 
to act as single judges in district courts makes the  issue of their independence even 
more important. 

(167)  During  the  legislative  process  of  the  law  on  the  National  School  of  Judiciary 
concerns have been expressed by the Supreme Court and the National Council for the 
Judiciary as to whether the guarantees for independence of assistant judges comply 
with  the  Constitution  and  are  sufficient  to  meet  the  requirements  of  a  fair  trial 
enshrined in Article 6(1) ECHR135. The European Court of Human Rights has held 
that  the  previous  regime  regarding  assistant  judges  in  Poland  did  not  meet  these 
criteria136. 

(168)  The reply of the Polish authorities received on 28 August 2017 to the Commission's 
Recommendation of 26 July 2017 does not alleviate the concerns of the Commission 
and  does  not  announce  any  concrete  measures  to  address  the  issues  raised  by  the 
Commission.  

131 The Minister of Justice can exert influence on appeal court presidents by assessing their performance; while a negative 
assessment  could  result  in  financial  penalties  imposed  on  presidents  of  courts,  a  positive  assessment  could  result  in  an 
increase of the post allowance of presidents; Article1(13)-(15) of the law on Ordinary Courts Organisation. 

132 Opinion CDL-AD(2017)035, para 114–117. 
133 Assistant  judges,  even  though  they  are  entrusted  with  the  duties  of  a  judge,  are  appointed  by  the  Minister  of  Justice 

directly with a minimal involvement of the National Council for the Judiciary. 

134 The independence of the judge should be enshrined in the constitution with more specific rules provided at the legislative 
level  (see  e.g.  2010  CoE  Recommendation,  para  7).  It  should  also  be  noted  that  the  Supreme  Court  and  the  National 
Council for the Judiciary in their opinions raised questions of constitutionality of this law.  

135 Opinion of the Supreme Court of 3 February 2017; opinion of the National Council for the Judiciary of 10 February 2017. 
136 ECtHR Case Henryk Urban and Ryszard Urban v Poland, 23614/08, 28 February 2011; ECtHR Case Mirosław Garlicki v 

Poland, 36921/07, 14 September 2011; ECtHR Case Pohoska v Poland, 33530/06 10 April 2012. 

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4.4.2. Other laws 
(169)  The  laws  on  the  Public  Prosecution  Office137  merged  the  office  of  the  Minister  of 
Justice  and  that  of  the  Public  Prosecutor  General,  and  increased  significantly  the 
powers  of  the  Public  Prosecutor  General  in  the  management  of  the  prosecutorial 
system,  including  new  competences  enabling  the  Minister  of  Justice  to  directly 
intervene in individual cases.  

(170)  As  underlined  by 

that 

the  Venice  Commission138,  while  recognising 

the 
independence or autonomy of the prosecutor’s office is not as categorical in nature as 
that of the courts, taken together, the merger of the office of the Minister of Justice 
and  that  of  the  Public  Prosecutor  General,  the  increased  powers  of  the  Public 
Prosecutor  General  vis-à-vis  the  prosecution  system,  the  increased  powers  of  the 
Minister of Justice in respect of the judiciary pursuant to the law on the Organisation 
of  Ordinary  Courts  and  the  weak  position  of  checks  to  these  powers,  result  in  the 
accumulation  of  too  many  powers  for  one  person.  This  has  direct  negative 
consequences for the independence of the prosecutorial system from political sphere, 
but also for the independence of the judiciary and hence the separation of powers and 
the rule of law in Poland. 

5. 

FINDING OF A CLEAR RISK OF A SERIOUS BREACH OF THE VALUES REFERRED TO IN 
ARTICLE 2 OF THE TREATY ON EUROPEAN UNION 

(171)  According to Article 7(1) TEU, on a reasoned proposal by one third of the Member 
States,  by  the  European  Parliament  or  by  the  European  Commission,  the  Council, 
acting by a majority of four fifths of its members after obtaining the consent of the 
European Parliament, may determine that there is a clear risk of a serious breach by a 
Member  State  of  the  values  referred  to  in  Article  2  TEU.  Before  making  such  a 
determination, the Council shall hear the Member State in question and may address 
recommendations to it, acting in accordance with the same procedure139. 

(172)  The  Commission  is  of  the  opinion  that  the  situation  described  in  the  previous 
sections represents a clear risk of a serious breach by the Republic of Poland of the 
rule of law referred to in Article 2 TEU. The Commission comes to this finding after 
having considered the facts set out above. 

(173)  The  Commission  observes  that  within  a  period  of  two  years  more  than  13 
consecutive  laws  have  been  adopted  affecting  the  entire  structure  of  the  justice 
system  in  Poland:  the  Constitutional  Tribunal,  the  Supreme  Court,  the  ordinary 
courts,  the  national  Council  for  the  Judiciary,  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.  The  legislative  changes  and  their 
combined  effects  put  at  serious  risk  the  independence  of  the  judiciary  and  the 
separation  of  powers  in  Poland  which  are  key  components  of  the  rule  of  law.  The 
Commission  also  observes  that such intense legislative  activity has been conducted 

137 Law of 28 January 2016 on the Prosecutor's Office, published in Official Journal on 15 February 2016, item 177; law of 
28 January 2016 - Regulations implementing the Act - law on the Prosecutor's Office, published in Official Journal on 15 
February 2016, item 178. 

138 Opinion CDL-AD(2017)037, para 28 and 115. 
139 See also Communication from the Commission of 15 October 2003: Respect for and promotion of the values on which the 

Union is based, COM(2003) 606 final. 

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without  proper  consultation  of  all  the  stakeholders  concerned,  without  a  spirit  of 
loyal cooperation required between state authorities and without consideration for the 
opinions from a wide range of European and international organisations. 

(174)  The  Commission  has  carried  out  an  extensive  dialogue  with  the  Polish  authorities 
since January 2016 in order to find solutions to the concerns raised. Throughout this 
process  the  Commission  has  always  substantiated  its  concerns  in  an  objective  and 
thorough  manner.  In  line  with  the  Rule  of  Law  Framework,  the  Commission  has 
issued an Opinion followed by three Recommendations regarding the rule of law in 
Poland.  It  has  exchanged  numerous  letters  and  held  meetings  with  the  Polish 
authorities. The  Commission  has  always  made  clear  that  it stood  ready to  pursue  a 
constructive  dialogue  and  has  repeatedly  invited  the  Polish  authorities  for  further 
meetings to that end. However, in spite of these efforts, the dialogue has not removed 
the Commission's concerns. 

(175)  Despite the issuing of three Recommendations by the Commission, the situation has 

deteriorated continuously. In particular: 

(1)  The unlawful appointment of the President of the Constitutional Tribunal, the 
admission of the three judges nominated by the 8th term of the Sejm without a 
valid legal basis, the fact that one of these judges has been appointed as Vice-
President  of  the  Tribunal,  the  fact  that  the  three  judges  that  were  lawfully 
nominated  in  October  2015  by  the  previous  legislature  have  not  been  able  to 
take  up  their  function  of  judge  in  the  Tribunal,  as  well  as  the  subsequent 
developments  within  the  Tribunal  described  above  have  de  facto  led  to  a 
complete  recomposition  of  the  Tribunal  outside  the  normal  constitutional 
process  for  the  appointment  of  judges.  For  this  reason,  the  Commission 
considers that the independence and legitimacy of the Constitutional Tribunal 
are  seriously  undermined  and,  consequently,  the  constitutionality  of  Polish 
laws can no  longer be effectively  guaranteed. The judgments  rendered by the 
Tribunal under these  circumstances can  no longer be considered as  providing 
an effective constitutional review.  

(2)  The law on the National Council for the Judiciary and the law on the Supreme 
Court,  also  in  combination  with  the  law  on  the  National  School  of  Judiciary, 
and  the  law  on  the  Ordinary  Courts  Organisation  significantly  increase  the 
the  previous 
rule  of 
systemic 
Recommendations. The main concerns are summarised as follows: 

identified 

law  as 

threat 

the 

in 

to 

(a)  As regards the Supreme Court, 

– 

– 

the  compulsory  retirement  of  a  significant  number  of  the  current 
Supreme Court judges combined with the possibility of prolonging 
their active judicial mandate, as well as the new disciplinary regime 
for Supreme Court judges, structurally undermine the independence 
of  the  Supreme  Court  judges,  whilst  the  independence  of  the 
judiciary is a key component of the rule of law; 

the  compulsory  retirement  of  a  significant  number  of  the  current 
Supreme Court judges also allows for a far reaching and immediate 
recomposition  of  the  Supreme  Court.  That  possibility  raises 
concerns in relation to the separation of powers, in particular when 
considered  in  combination  with  the  simultaneous  reforms  of  the 
National Council for the Judiciary. In fact all new Supreme Court 

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judges  will  be  appointed  by  the  President  of  the  Republic  on  the 
recommendation  of  the  newly  composed  National  Council  for  the 
Judiciary,  which  will  be  largely  dominated  by  the  political 
appointees. As a result, the current parliamentiary majority will be 
able to determine, at least indirectly, the future composition of the 
Supreme Court to a much larger extent than this would be possible 
in  a  system  where  existing  rules  on  the  duration  of  judicial 
mandates  operate  normally  –  whatever  that  duration  is  and  with 
whichever state organ the power to decide on judicial appointments 
lies;  

– 

the new extraordinary appeal procedure raises concerns in relation 
to  legal  certainty  and,  when  considered  in  combination  with  the 
possibility  of  a  far  reaching  and  immediate  recomposition  of  the 
Supreme Court, in relation to the separation of powers. 

(b)  As regards ordinary courts, 

– 

– 

the  retirement  age  of 

judges  while  making 
by  decreasing 
prolongation  of 
the 
discretionary  decision  of  the  Minister  of  Justice,  the  new  rules 
undermine the principle of irremovability of judges which is a key 
element of the independence of judges;  

judicial  mandate  conditional  upon 

the 

the  discretionary  power  of  the  Minister  of  Justice  to  appoint  and 
dismiss  presidents  of  courts  without  being  bound  by  concrete 
criteria, with no obligation to state reasons, with no possibility for 
the  judiciary  to  block  these  decisions  and  with  no  judicial  review 
available may affect the personal independence of court presidents 
and of other judges.  

(c)  As regards the National Council for the Judiciary, 

– 

the  concerns  concerning  the  overall  independence  of  the  judiciary 
are  increased  by  the  termination  of  the  mandate  of  all  judges-
members  of  the  National  Council  for  the  Judiciary  and  by  the 
reappointment of its judges-members according to a process which 
allows a high degree of political influence. 

(176)  The  new  laws  raise  serious  concerns  as  regards  their  compatibility  with  the  Polish 
Constitution as underlined by a number of opinions, in particular from the Supreme 
Court,  the  National  Council  for  the  Judiciary  and  the  Ombudsman.  However,  as 
explained  in  the  Rule  of  Law  Recommendation  of  26  July  2017,  an  effective 
constitutional review of these laws is no longer possible. 

(177)  Actions  and  public  statements  against  judges  and  courts  in  Poland  made  by  the 
Polish  Government  and  by  members  of  Parliament  from  the  ruling  majority  have 
damaged the trust in the justice system as a whole. The Commission underlines the 
principle  of  loyal  cooperation  between  state  organs  which  is,  as  highlighted  in  the 
opinions  of  the  Venice  Commission,  a  constitutional  precondition  in  a  democratic 
state governed by the rule of law. 

(178)  Given that the independence of the judiciary is a key component of the rule of law, 
these  new  laws,  notably  their  combined  effect,  will  increase  significantly  the 
systemic threat to rule of law as identified in the previous Recommendations. In this 
respect  the  Venice  Commision  underlined  that  the  combination  of  the  changes 

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proposed  amplifies  the  negative  effect  of  each  of  them  to  the  extent  that  it  puts  at 
serious risk the independence of all parts of the judiciary in Poland140. 

(179)  The  fact  that  the  Polish  authorities,  following  the  suspension  of  the  laws  on  the 
Supreme Court and the National Council for Judiciary adopted in July 2017, have not 
used this occasion to take into account the concerns expressed by the Commission in 
its  third  Recommendation  as  well  as  by  other  actors,  in  particular  the  Venice 
Commission, clearly shows a lack of willigness on the side of the Polish authorities 
to address the concerns.  

(180)  The consequences of the situation are particularly serious: 

(1)  As  the  independence  and  legitimacy  of  the  Constitutional  Tribunal  are 
seriously  undermined,  the  constitutionality  of  Polish  laws  can  no  longer  be 
effectively guaranteed. This situation is particularly worrying for the respect of 
the  rule  of  law  since,  as  explained  in  the  Commission's  Recommendations,  a 
number of particularly sensitive new legislative acts have been adopted by the 
Polish Parliament, such as a new Civil Service Act141, a law amending the law 
on  the  Police  and  certain  other  laws142,  laws  on  the  Public  Prosecution 
Office143, a law on the Ombudsman and amending certain other laws144, a law 
on the National Council of Media145 and an anti-terrorism law146.  

(2)  Respect for the rule of law is not only a prerequisite for the protection of all the 
fundamental  values  listed  in  Article  2  TEU.  It  is  also  a  prerequisite  for 
upholding  all  rights  and  obligations  deriving  from  the  Treaties  and  for 
establishing mutual trust of citizens, businesses and national authorities in the 
legal systems of all other Member States. 

(3)  The  Commission  underlines  that  the  proper  functioning  of  the  rule  of  law  is 
also essential in particular for the seamless operation of the Internal Market and 
an investment friendly environment147, because economic operators must know 
that  they will be treated equally  under the law. Respect for the rule of law is 
also  essential  for  mutual  trust  in  the  area  of  justice  and  home  affairs,  in 
particular for effective judicial cooperation in civil and criminal matters which 
is based on mutual recognition. This cannot be assured without an independent 
judiciary in each Member State.  

(181)  The  Commission  recalls  that  where  a  constitutional  justice  system  has  been 

established, its effectiveness is a key component of the rule of law.  

(182)  The  Commission  also  underlines  that  whatever  the  model  of  the  justice  system 
chosen,  the  independence  of  the  judiciary  must  be  safeguarded  as  a  matter  of  EU 

140 Opinion CDL-AD(2017)035, para 131.  
141 Law of 30 December 2015 amending the law on Civil Service and certain other acts, published in Official Journal on 8 

January 2016, item 34.  

142 Law of 15 January 2016 amending the law on Police and other laws, published in Official Journal on 4 February 2016, 

item 147.  

143 Law of 28 January 2016 on the Prosecutor's Office, published in Official Journal on 15 February 2016, item 177; law of 
28 January 2016 - Regulations implementing the Act - law on the Prosecutor's Office, published in Official Journal on 15 
February 2016, item 178. 

144 Law of 18 March 2016 amending the law on the Ombudsman and certain other laws, published in Official Journal on 17 

May 2016, item 677. 

145 Law of 22 June 2016 on the National Council of Media, published in Official Journal on 29 June 2016, item 929. 
146 Law of 10 June 2016 on anti-terrorist actions, published in Official Journal on 24 June 2016, item 904. 
147 Council Recommendation of 11 July 2017 on the 2017 National Reform Programme of Poland and delivering a Council 

opinion on the 2017 Convergence Programme of Poland; recital 14; OJ C 261, 9.8.2017, p. 88–91.  

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law.  It  is  up  to  the  Member  States  to  organise  their  justice  systems,  including 
whether  or  not  to  establish  a  Council  for  the  Judiciary  the  role  of  which  is  to 
safeguard  judicial  independence.  However,  where  such  a  Council  has  been 
established  by  a  Member  State,  as  it  is  the  case  in  Poland  where  the  Polish 
Constitution has entrusted explicitly the National Council for the Judiciary with the 
task of safeguarding judicial independence, the independence of such Council must 
be guaranteed in line with European standards. 

(183)  The Commission also notes that a wide range of actors at European and international 
level  have  expressed  their  deep  concern  about  the  situation  of  the  rule  of  law  in 
Poland148 and that the European Parliament stated that the current situation in Poland 
represents  a  clear  risk  of  a  serious  breach  of  the  values  referred  to  in  Article  2 
TEU149. 

(184)  After  two years  of dialogue with the Polish authorities  which has not led to results 
and  has  not  prevented  further  deterioration  of  the  situation,  it  is  necessary  and 
proportionate to enter into a new phase of dialogue formally involving the European 
Parliament and the Council.  

(185) 

In view of the foregoing, and in accordance with Article 7(1) TEU, the Commission 
submits  the  present  reasoned  proposal  to  the  Council,  inviting  the  Council  to 
determine that there is a clear risk of a serious breach by the Republic of Poland of 
the rule of law which is one of the values referred to in Article 2 TEU and to address 
appropriate  recommendations  to  Poland  in  this  regard.  A  proposal  for  a  Council 
decision regarding such a determination is attached to this reasoned proposal. 

(186)  The present reasoned proposal in accordance with Article 7(1) TEU is issued at the 
same  time  as  the  Commission's  Recommendation  of  20  December  2017  regarding 
the rule  of law in  Poland.  The Commission  is  ready, in  close  consultation with  the 
European  Parliament  and  the  Council,  to  reconsider  the  present  reasoned  proposal 
should  the  Polish  authorities  implement  the  recommended  actions  set  out  in  that 
Recommendation within the time prescribed therein. 

148 The  Venice  Commission,  the  Commissioner  for  Human  Rights  of  the  Council  of  Europe,  the  Consultative  Council  of 
European  Judges,  the  United  Nations  Human  Rights  Committee,  the  United  Nations  Special  Rapporteur  on  the 
independence of judges and lawyers, the Network of Presidents of the Supreme Judicial Courts of the European Union, 
the  European  Network  of  Councils  for  the  Judiciary,  the  Council  of  Bars  and  Law  Societies  of  Europe  as  well  as 
numerous civil society organisations such as Amnesty International and the Human Rights and Democracy Network.  
149 Para  16  of  the  Resolution  of  15  November  2017  on  the  situation  of  the  rule  of  law  and  democracy  in  Poland;  the 
Resolution instructed the Committee on Civil Liberties, Justice and Home Affairs to draw up a specific report with a view 
to holding a plenary vote on a reasoned proposal calling on the Council to act pursuant to Article 7(1) TEU. 

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2017/0360 (NLE) 

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 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on European Union, and in particular Article 7(1) thereof, 
Having regard to the reasoned proposal from the European Commission1, 
Having regard to the consent of the European Parliament2,  

Whereas: 

(1) 

(2) 

The European Union is founded on the values referred to in Article 2 of the Treaty on 
European Union ('TEU'), which are common to the Member States and which include 
respect for the rule of law. 

In its reasoned proposal, the Commission presents its concerns related to the lack of an 
independent  and  legitimate  constitutional  review  and  to  the  adoption  by  the  Polish 
Parliament  of  the  law  on  the  Supreme  Court3,  the  law  on  Ordinary  Courts 
Organisation4, the law on the National Council for the Judiciary5 and  the law on the 
National  School  of  Judiciary6  which  contain  provisions  raising  serious  concerns  as 
regards  judicial  independence,  the  separation  of  powers  and  legal  certainty.  In 
particular, the main concerns relate to the new retirement regimes of Supreme Court 
judges  and  ordinary  court  judges,  a  new  extraordinary  appeal  procedure  in  the 
Supreme Court, the dismissal and appointment of presidents of ordinary courts and the 
termination of the mandate and the appointment procedure of judges-members of the 
National Council for the Judiciary.   

(3) 

The Commission also noted that the Polish authorities have failed to take the actions 
recommended  in  its  Recommendation  of  27  July  20167,  and  complementary 

1 
[INSERT Reference]  
2  OJ C […], […], p. […]. 
3  The law on the Supreme Court, adopted by the Sejm on 8 December 2017 and approved by the Senate on […] 
4  The law amending the law on the Ordinary Courts Organisation adopted by the Sejm on 12 July 2017 and published in the 

Official Journal on 28 July 2017. 

5  The  law  amending  the  law  on  the  National  Council  for  the  Judiciary  and  certain  other  laws  adopted  by  the  Sejm  on  8 

December 2017 and approved by the Senate on […]. 

6  The  law  amending  the  law  on  the  National  School  of  Judiciary  and  Public  Prosecution,  the  law  on  Ordinary  Courts 
Organisation and certain other laws adopted by the Sejm on 11 May 2017 and published in the Official Journal on 13 June 
2017. 

7  Commission Recommendation (EU) 2016/1374 of 27 July 2016 regarding the rule of law in Poland; OJ L 217, 12.8.2016, 

p. 53.  

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(4) 

(5) 

(6) 

(7) 

Recommendations  of  21  December  20168  and  26  July  20179  in  order  to  address  the 
systemic threat to the rule of law identified in those Recommendations.  

On 20 December 2017, in parallel to its reasoned proposal under Article 7(1) TEU, the 
Commission adopted a further Recommendation regarding the rule of law in Poland. 
However,  Poland  failed  to  take  the  recommended  actions  within  the  time  set  in  that 
Recommendation. 

The dialogue which the Commission conducted with the Polish authorities under the 
Rule  of  Law  Framework  since  13  January  2016  has  thus  not  alleviated  the  concerns 
referred to above.  

On 15 November 2017, the European Parliament adopted a resolution stating that the 
current  situation  in  Poland  represents  a  clear  risk  of  a  serious  breach  of  the  values 
referred to in Article 2 TEU. 

A wide range of actors at European and international level have expressed their deep 
concern  about  the  situation  of  the  rule  of  law  in  Poland,  including  the  Venice 
Commission,  the  Commissioner  for  Human  Rights  of  the  Council  of  Europe,  the 
Consultative  Council  of  European  Judges,  the  United  Nations  Human  Rights 
Committee, the United Nations Special Rapporteur on the independence of judges and 
lawyers,  the  Network  of  Presidents  of  the  Supreme  Judicial  Courts  of  the  European 
Union, the European Network of Councils for the Judiciary, the Council of Bars and 
Law Societies of Europe as well as numerous civil society organisations.  

(8) 

On [….] 2018, the Council has heard the Republic of Poland in accordance with the 
second sentence of Article 7(1) TEU.  

(9)  Whatever the model of the justice system chosen in a Member State, the  rule of law 
enshrined in Article 2 TEU implies requirements relating to the independence of the 
judiciary, the separation of powers and legal certainty. 

(10) 

It  gives  rise  to  great  concern  that,  as  a  consequence  of  the  recently  adopted  laws 
referred  to  above,  the  legal  regime  in  Poland  would  no  longer  comply  with  these 
requirements. 

(11)  Respect  for  the  rule  of  law  is  not  only  a  prerequisite  for  the  protection  of  all  the 
fundamental values listed in Article 2 TEU. It is also a prerequisite for upholding all 
rights and  obligations  deriving  from the Treaties and  for establishing mutual  trust of 
citizens, businesses and national authorities in the legal systems of all other Member 
States.  

(12)  The proper functioning of the rule of law is also essential for the seamless operation of 
the  Internal  Market  because  economic  operators  need  to  have  the  certainty  that  they 
will be treated equally under the law. 

(13)  Respect for the rule of law is essential for mutual trust in the area of justice and home 
affairs,  in  particular  for  effective  judicial  cooperation  in  civil  and  criminal  matters 
which is based on mutual recognition.  

(14)  The  principle  of  loyal  cooperation  between  state  organs  is  a  constitutional 

precondition in a democratic state governed by the rule of law. 

8  Commission Recommendation (EU) 2017/146 of 21 December 2016 regarding the rule of law in Poland complementary 

to Recommendation (EU) 2016/1374; OJ L 22, 27.1.2017, p. 65. 

9  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; OJ L 228, 2.9.2017, p. 19. 

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(15)  For those reasons, it should be determined, in accordance with Article 7(1) TEU, that 
there is a clear risk of a serious breach by the Republic of Poland of the rule of law as 
one of the values referred to in Article 2 TEU. 

HAS ADOPTED THIS DECISION:  

 There is a clear risk of a serious breach by the Republic of Poland of the rule of law. 

Article 1 

Article 2 

The Council recommends that the Republic of Poland take the following actions within three 
months after notification of this Decision: 

(a) 

(b) 

(c) 

(d) 

(e) 

restore the independence and legitimacy of the Constitutional Tribunal as guarantor 
of  the  Polish  Constitution  by  ensuring  that  its  judges,  its  President  and  its  Vice-
President are lawfully elected and appointed, by implementing fully the judgments of 
the Constitutional  Tribunal of 3  and  9 December  2015 which require that the three 
judges that were lawfully nominated in October 2015 by the previous legislature can 
take  up  their  function  of  judge  in  the  Constitutional  Tribunal,  and  that  the  three 
judges  nominated  by  the  new  legislature  without  a  valid  legal  basis  no  longer 
adjudicate without being validly elected; 

publish and implement fully the judgments of the Constitutional Tribunal of 9 March 
2016, 11 August 2016 and 7 November 2016; 

ensure that the law on the Supreme Court, the law on Ordinary Courts Organisation, 
the law on the National Council for the Judiciary and the law on the National School 
of Judiciary are amended in order to ensure their compliance with the requirements 
relating  to  the  independence  of  the  judiciary,  the  separation  of  powers  and  legal 
certainty;  

ensure that any justice reform is prepared in close cooperation with the judiciary and 
all interested parties, including the Venice Commission; 

refrain  from  actions  and  public  statements  which  could  undermine  further  the 
legitimacy of the Constitutional Tribunal, the Supreme Court, the ordinary courts, the 
judges, individually or collectively, or the judiciary as a whole.  

This Decision is addressed to the Republic of Poland. 

Done at Brussels, 

For the Council 
The President 

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