COMMISSION STAFF WORKING DOCUMENT 2021 Rule of Law Report Country Chapter on the rule of law situation in Poland Accompanying the COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2021 Rule of Law Report The rule of law situation in the European Union
Date: 2021-07-20
Institutions: European Commission, Secretariat-General
Subjects: Poland, administrative transparency, coronavirus disease, corruption, democracy, epidemic, independence of the judiciary, infringement of EU law, political rights, rule of law

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 20.7.2021  SWD(2021) 722 final  COMMISSION STAFF WORKING DOCUMENT 2021 Rule of Law Report        Country Chapter on the rule of law situation in Poland Accompanying the COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2021 Rule of Law Report        The rule of law situation in the European Union {COM(2021) 700 final} - {SWD(2021) 701 final} - {SWD(2021) 702 final} - {SWD(2021) 703 final} - {SWD(2021) 704 final} - {SWD(2021) 705 final} - {SWD(2021) 706 final} - {SWD(2021) 707 final} - {SWD(2021) 708 final} - {SWD(2021) 709 final} - {SWD(2021) 710 final} - {SWD(2021) 711 final} - {SWD(2021) 712 final} - {SWD(2021) 713 final} - {SWD(2021) 714 final} - {SWD(2021) 715 final} - {SWD(2021) 716 final} - {SWD(2021) 717 final} - {SWD(2021) 718 final} - {SWD(2021) 719 final} - {SWD(2021) 720 final} - {SWD(2021) 721 final} - {SWD(2021) 723 final} - {SWD(2021) 724 final} - {SWD(2021) 725 final} - {SWD(2021) 726 final} - {SWD(2021) 727 final}  
 
 
ABSTRACT 

The  reforms  of  the  Polish  justice  system,  including  new  developments,  continue  to  be  a 
source of serious concerns as referred to in 2020. Reforms carried out since 2015 increased 
the influence of the executive and legislative powers over the justice system to the detriment 
of judicial independence and led the Commission to launch the procedure under Article 7(1) 
TEU, which is still ongoing. In April 2021, the Commission referred Poland to the Court of 
Justice in view of a law on the judiciary which undermines the independence of judges and is 
incompatible with EU law. In July 2021, the Court ordered interim measures in that case. On 
the same day, the Constitutional Tribunal held that interim measures ordered by the Court of 
Justice in the area of the judiciary are inconsistent with the Polish constitution. Also in July 
2021,  the  Court  of  Justice  found  that  the  disciplinary  regime  for  judges  in  Poland  is  not 
compatible with EU law. The National Council for the Judiciary continues to operate despite 
its  contested  independence  and  the  functioning  of  the  Supreme  Court  was  further  affected, 
including  by  changes  in  legislation.  In  May  2021,  the  European  Court  of  Human  Rights 
found irregularities in an appointment procedure to the Constitutional Tribunal.  

The legal  and institutional  framework to  prevent and combat  corruption  is  largely in  place. 
Yet,  there  are  risks  as  regards  the  effectiveness  of  the  fight  against  high-level  corruption, 
including a risk of undue influence on corruption prosecutions for political purposes. In this 
context,  concerns remain over the independence  of the main institutions responsible for the 
prevention  and  fight  against  corruption,  considering  in  particular  the  subordination  of  the 
Central  Anti-Corruption  Bureau to  the executive  and the  fact that the Minister of Justice is 
also  the  Prosecutor-General.  The  dedicated  government  anti-corruption  programme  was 
implemented in the years 2018-2020, yet key legislative tasks remain unfinished. Structural 
weaknesses continue to exist as regards the asset declaration system and lobbying.  

Regarding media freedom and pluralism, the Government is expected to adopt legislation to 
transpose the Audiovisual Media Service Directive to strengthen the independence of media 
regulators. The Polish media market has been so far considered diverse, but stakeholders fear 
negative impacts of the acquisition of Polska Press by the state-owned company Orlen. While 
the  competition  authority  (UOKiK)  approved  the  transaction,  the  Polish  Ombudsperson 
challenged  this  decision  considering  that  this  authority  did  not  examine  whether  the 
acquisition would result in restricting press freedom. Concerns were also raised about a draft 
tax  legislation  targeting  some  media  groups,  in  an  environment  considered  as  increasingly 
unwelcoming  towards  foreign-owned  media  outlets.  Since  2020,  journalists’  professional 
environment has deteriorated, with use of intimidating judicial proceedings, growing failure 
to protect journalists and violent actions during protests, including from police forces.  

The  system  of  checks  and  balances  continues  to  be  under  considerable  pressure.  The 
expedited  adoption  of  legislation  continues  to  be  used,  also  beyond  issues  linked  to  the 
COVID-19  pandemic,  including  for  structural  reforms  of  the  judiciary,  with  no  or  limited 
consultation  of  stakeholders.  Some  measures  introduced  by  the  Government  in  2020  to 
address  the  COVID-19  pandemic  have  been  considered  unlawful  by  courts  in  individual 
cases. The Ombudsperson continues to play a key role as a rule of law safeguard. Following a 
decision  of  the  Constitutional  Tribunal,  the  continued  exercise  of  core  powers  by  the 
outgoing  Ombudsperson  ended  in  July  2021.  Parliamentary  proceedings  now  point  to  an 
appointment of a new Ombudsperson with cross-party support. The civil society space is still 
vibrant but has been affected further by general problems concerning women’s rights, and by 
attacks on LGBTI groups.  

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I.  JUSTICE SYSTEM  

The  Polish  justice  system  is  separated  in  two  main  branches,  administrative  and  ordinary 
judiciary.  The  Supreme  Administrative  Court  and  16  administrative  courts  exercise  control 
over  public  administration,  including  the  lawfulness  of  measures  of  bodies  of  local 
government  and  of  territorial  organs  of  government  administration.  The  ordinary  judiciary, 
supervised  by  the  Supreme  Court1,  consists  of  three  levels:  11 appeal  courts,  46  regional 
courts and 318 district  courts. Judges are appointed by the President of the Republic  at  the 
request  of  the  National  Council  for  the  Judiciary.  The  Constitutional  Tribunal,  which 
adjudicates notably on the constitutionality of legislation, is  composed of 15 judges  chosen 
by the Sejm (lower chamber of the Parliament) for a term of office of 9 years. The National 
Council for the Judiciary is tasked by the Constitution to safeguard judicial independence. A 
particular  characteristic  of  the  prosecution  system,  which  is  not  part  of  the  independent 
judiciary, is that the Prosecutor General and the Minister of Justice are the same person. The 
Constitution provides that advocates and legal counsellors can self-regulate their practice.  

Independence  

The perception of judicial independence among the general public and companies is low 
and  continues  to  decrease.  Whereas  in  2021  29%  of  the  general  public  perceives 
independence of courts and judges as ‘fairly or very good’, only 18% of companies share the 
same perception2. The perception of independence has steadily decreased for both the general 
public  and  companies  during  the  last  five  years.  As  last  year,  the  public  debate  on  the 
judiciary  continues  to  be  marked  by  strong  tensions3.  As  regards  the  smear  campaign 
conducted in 2019 against judges who openly criticised the justice reforms4, so far no judicial 
decisions have been taken5.  

The  justice  reforms  initiated  in  November  2015  continue  to  be  implemented  on  the 
ground.  These  reforms  were  carried  out  through  more  than  30  laws  relating  to  the  entire 

1   The Supreme Court also supervises military courts. 
2   Figures 47-50, 2021 EU Justice Scoreboard. The level of perceived judicial independence is categorised as 
follows: very low (below 30% of respondents perceive judicial independence as fairly good and very good); 
low (between 30-39%), average (between 40-59%), high (between 60-75%), very high (above 75%). 

3   TVP  Info  ‘Kim  jest  Agnieszka  Domańska?  Sędzia  zdecydowała  o  nieprzedłużeniu  aresztu  Sławomira 
Nowaka’  of  12  April  2021;  wPolityce.pl  ‘<Kasta>  wspiera  LGBT!  Sędzia  nie  uznaje  płci  metrykalnych  i 
zwraca  się  do  powoda  tak  jak  on  sobie  tego  życzy.  To  sąd,  czy  lewacka  pogawędka?’  of  20  April  2021; 
wPolityce.pl  ‘Ujawniamy.  Sędzie  ze  składu  orzekającego  ws.  Noakowskiego  16  są  członkami  skrajnie 
upolitycznionych  stowarzyszeń  sędziowskich’  of  19  January  2021.  As  regards  critical  statements  made  by 
politicians against judges, see Chapter IV of a report prepared by the ‘Iustitia’ association of judges ‘Judges 
under pressure’ of 2020. Similar statements have been  made against one  of the  Advocates General of the 
Court of Justice: wPolityce.pl ‘Ujawniamy. Kto steruje antypolską narracją w TSUE? Podwójne standardy i 
zblatowanie z „kastą” Tancheva  – Rzecznika Generalnego TSUE’  of 26 April 2021; ‘Ujawniamy. Z rządu 
Tuska do TSUE! Kim jest rozgrywający, który przydziela polskie sprawy rzecznikowi trzymającemu z polską 
„kastą”?  of  6  May  2021;  ‘Rzecznik  TSUE  na  straży  bezkarności  „kasty”:  ‘Polskie  prawo  ws.  Systemu 
odpowiedzialności dyscyplinarnej sędziów jest sprzeczne z prawem UE’ of 6 May 2021. See also the press 
conference of the Ministry of Justice of 6 May 2021, where the Deputy Minister of Justice stated that two 
Advocate Generals of the Court of Justice are not impartial (https://www.pscp.tv/w/1nAJELzqjOYGL). 

4   See the 2020 Rule of Law Report: Chapter for Poland – Part I. 
5   The  Disciplinary  Officer  for  ordinary  court  judges  appointed  by  the  Minister  of  Justice  discontinued  the 
investigation concerning a former Deputy Minister of Justice, alleged to have been the main person behind 
the  campaign.  Investigations  carried  out  by  the  prosecution  services  as  regards  the  campaign  have  been 
ongoing since 11 September 2019. 

2 

 
 
                                                 
structure of the justice system6, including the Constitutional Tribunal, the National  Council 
for  the  Judiciary,  the  Supreme  Court,  the  ordinary  courts,  administrative  courts,  and  the 
prosecution service. Multiple aspects of the justice reform raise serious  concerns as regards 
the rule of law, in particular judicial independence7. This is the main focus of the Article 7(1) 
TEU8  procedure  initiated  by  the  Commission,  which  remains  under  consideration  by  the 
Council9. Also the European Parliament reiterated its concerns regarding the situation of the 
rule of law in Poland in a resolution10. The safeguarding of judicial independence in Poland is 
one of the country-specific recommendations addressed in the context of the 2020 European 
Semester,  which  remains  to  be  addressed11.  Meanwhile,  the  Polish  Government  has  openly 
defied the binding nature of an interim measures order issued by the Court of Justice on 21 
May 2021 in a case lodged against Poland for breach of EU environmental law12. 

The  Court  of  Justice  further  clarified  EU  law  requirements  relating  to  judicial 
independence  in  the  Polish  context.  On  2  March  2021,  the  Court  of  Justice  issued  a 
judgment  in  a  preliminary  ruling  procedure,  clarifying  the  requirements  of  EU  law  with 
respect to judicial appointments to the Supreme Court that took place in 201813. The Court of 
Justice,  while  leaving  the  definitive  assessment  to  the  referring  court,  held  that  successive 
amendments to the Polish Law on the National Council of the Judiciary which had the effect 
of removing effective judicial review of that Council’s decisions proposing to the President 
of the Republic candidates for the office of judge at the Supreme Court are liable to infringe 
EU law. In that respect, the Court noted that given the decisive role of the National Council 
for  the  Judiciary  in  the  procedure  of  appointment  of  judges  in  Poland  its  degree  of 
independence is relevant for ensuring judicial independence, indicating that the independence 
of  the  National  Council  for  the  Judiciary  is  open  to  doubt14.  On  6  May  2021,  the  Supreme 
Administrative Court implemented the above judgment of the Court of Justice, ruling that the 
current  National Council for the Judiciary, in the procedure for appointing judges, does not 
provide sufficient guarantees of independence from the executive and the legislature and that, 

6   In the beginning of 2021, the Ministry of Justice announced plans to introduce to the Polish justice system 
judges  of  peace.  No  details  of  a  draft  legislation  to  that  end  have  been  so  far  disclosed  (see  a  press 
communique of the Ministry of Justice of 18 March 2021). 

7   It is noted that, according to the Polish Government, the amendments introduced by the Law of 8 December 
2017 on the Supreme Court, the Act of 12 May 2011 on the National Council of the Judiciary, the Law of 27 
July 2001 on the Ordinary Courts Organisation have in no way restricted or affected judicial independence 
or the independence of power. 

8   Commission IP/17/5367.  
9   The most recent hearing under Article 7(1) TEU procedure took place on 22 June 2021. 
10   European  Parliament  resolution  of  17  September  2020  on  the  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; see also the 
resolution  of  16  January  2020  on  ongoing  hearings  under  Article 7(1)  of  the  TEU  regarding  Poland  and 
Hungary; resolution of 1 March 2018 on the Commission’s decision to activate Article 7(1) TEU as regards 
the situation in Poland; resolution of 15 November 2017 on the situation of the rule of law and democracy in 
Poland.  

11   Council  Recommendation  of  20  July  2020  on  the  2020  National  Reform  Programme  of  Poland  and 
delivering a Council opinion on the 2020 Convergence Programme of Poland, p. 15 (OJ C 282/21); see also 
European Commission, Country Report Poland 2020, SWD(2020) 520 final, p. 6 and 36. 

12   Order  of  21  May  2021  of  the  Vice-President  of  the  Court  of  Justice  issued  in  case  C-121/21  R,  Czech 
Republic  v  Poland,  obliging  Poland  to  immediately  cease  lignite  extraction  activities  in  the  Turów  mine. 
According to statements of top officials, including a statement of the Prime Minister of 25 May 2021, Poland 
will not comply with the order concerned, invoking reasons related to energy security. 

13   Judgment of the Court of Justice of 2 March 2021, AB, C-824/18. 
14   It is noted that, according to the Polish Government, the question of the existence of judicial councils, their 
composition,  the  procedure  for  appointing  their  members  and  the  role  of  those  bodies  in  the  process  of 
appointing judges does not fall within the competence of the European Union. 

3 

 
 
                                                 
consequently, the Council’s resolutions giving rise to appointments to the Criminal and Civil 
Chambers of the Supreme Court in 2018 are annulled15. A number of additional requests for 
preliminary rulings by various Polish Courts relating to the justice reforms of 2017 and 2018 
are  still  pending  before  the  Court  of  Justice16.  On  15  July  2021,  in  the  context  of  an 
infringement  procedure  launched  by  the  Commission,  the  Court  of  Justice  found17  that  the 
disciplinary regime for judges in Poland is not compatible with EU law. Notably, the Court of 
Justice found that the Disciplinary Chamber of the Supreme Court does  not  provide all the 
guarantees of impartiality and independence and is not protected from the direct or indirect 
influence of the Polish legislature and executive18. 

The Commission decided on 31 March 2021 to refer Poland to the Court of Justice in 
view  of  concerns  related  to  the  law  on  the  judiciary  of  December  201919.  The 
Commission considers that the contested Polish legislation undermines the independence of 
Polish judges in breach of Article 19(1) TEU and the primacy of EU law. The law prevents 
Polish courts, including by threatening with disciplinary proceedings, from directly applying 
EU law protecting judicial independence as well as from referring questions to the Court of 
Justice for preliminary rulings. Moreover, the Disciplinary Chamber of the Supreme Court – 
the  independence  of  which  is  not  guaranteed20  –  continues  to  take  decisions  which  have  a 
direct impact on judges and the way they exercise their function. This includes cases of the 
lifting of immunity of judges to allow criminal proceedings against them or to detain them, 
and the consequent temporary suspension from office and reduction of their salary. The mere 
prospect of having to face proceedings before a body whose independence is not guaranteed 
creates  a  ‘chilling  effect’  for  judges  and  can  affect  their  own  independence.  This  seriously 
undermines  judicial  independence  in  Poland,  effective  judicial  protection  for  citizens  in 
Poland  and  the  EU  legal  order  as  a  whole.  The  Polish  Government  considers  that  the 
Commission  is  exceeding  its  competences  under  the  Treaty  and  rejects  the  position  the 
Commission has taken in this infringement procedure. The Commission has asked the Court 

15   See judgment in case II GOK 2/18, in particular point 7.6 and 8.3. According to the judgment, the Supreme 
Administrative  Court  did  not  rule  on  the  systemic  validity  and  the  effectiveness  of  the  acts  of  judicial 
appointments made by the President of the Republic as the Supreme Administrative Court lacks such power 
(see point 9 of the judgment).  

16   See cases C-491/20 – C-496/20, C-506/20, C-509/20 and C-511/20 Supreme Court et al.; case C-615/20 Y.P. 

et al.; case C-671/20 M.M. et al.; C-181/21, G.; C-269/21, BC and DC. 

17   Judgment of the Court of Justice of 15 July 2021, Commission v Poland, C-791/19. 
18   The Court criticised the process for appointing judges to the Supreme Court, including the members of the 
Disciplinary  Chamber,  as  being  determined  by  a  body,  the  National  Council  of  the  Judiciary,  whose 
independence  may  give  rise  to  reasonable  doubts,  emphasising  also  that  this  Chamber  is  made  up 
exclusively  of  new  judges  who  were  not  already  sitting  at  the  Supreme  Court  and  enjoy  a  high  degree  of 
autonomy. The Court furthermore held that the disciplinary regime allows the content of judicial decisions 
adopted by judges of the ordinary courts to be classified as a disciplinary offence, which could be used to 
exert  political  control  over  judicial  decisions  or  to  exert  pressure  on  judges,  and  could  undermine  the 
independence of the courts concerned. The Court also held that national judges are exposed to disciplinary 
proceedings as a result of the fact that they have decided to make a reference for a preliminary ruling to the 
Court of Justice, which undermines their right or, as the case may be, their obligation to put questions to the 
Court,  as  well  as  the  system  of  judicial  cooperation  between  the  national  courts  and  the  Court  of  Justice 
established by the Treaties. 

19   Commission press release of 31  March 2021 IP/21/1524. Case registered as C-204/21. These infringement 
proceedings were launched on 29 April 2020 (see 2020 Rule of Law Report: Chapter for Poland – Part I). In 
the  context of these  infringement proceedings the  Commission issued an additional  letter of  formal notice 
and an additional reasoned opinion taking issue with the continued functioning of the Disciplinary Chamber 
of the Supreme Court as regards cases concerning judges other than disciplinary cases. 

20   This  has  been  confirmed  by  the  Court  of  Justice  as  regards  disciplinary  cases  concerning  judges  in  its 

judgment of 15 July 2021, Commission v Poland, C-791/19. 

4 

 
 
                                                 
of Justice to issue interim measures to suspend judicial activities of the Disciplinary Chamber 
with  regard  to  judges,  in  particular  concerning  the  lifting  of  judicial  immunity,  in  order  to 
avoid  serious and irreparable harm  to  judicial  independence  and the EU legal  order. On 14 
July 2021, the Vice-President of the Court issued an Order for interim measures in  case C-
204/21 R, granting in full the Commission’s request21. 

The  European  Court  of  Human  Rights,  seized  in  a  number  of  cases  related  to  the 
functioning  of  the  Polish  justice  system,  held  that  a  2015  appointment  to  the 
Constitutional Tribunal led to a breach of the requirement of ‘a tribunal established by 
law’. In  February 2021, the European Court of Human Rights  communicated that there are 
currently 27 cases pending before it which raise various issues relating to the justice reforms 
of  2017  and  201822.  So  far,  in  21  of  the  cases  lodged,  notice  has  been  given  to  the  Polish 
Government.  On  7  May  2021,  the  European  Court  of  Human  Rights  ruled23  that  a  bench 
including a judge appointed to a judicial post that had already been filled in by the legislature 
of 2011-2015 did not constitute a ‘tribunal established by law’24. These irregularities in the 
appointment procedure of judges to the Constitutional Tribunal have been raised as a serious 
concern  in  the  Reasoned  Proposal  adopted  by  the  Commission  under  Article  7(1)  TEU 
procedure25. The Constitutional Tribunal ruled that this judgement is ‘non-existent’26. On 29 
June 2021, the European Court of Human Rights issued a ruling27 concerning the premature 
removal  by  the  Minister  of  Justice  of  judges  from  their  post  as  vice-presidents  of  ordinary 

21   The Vice-President of the Court of Justice ordered Poland in particular to immediately, and until the delivery 
of the final judgment, suspend the provisions by which the Disciplinary Chamber of the Supreme Court can 
decide on requests for the lifting of judicial immunity, as well as on matters of employment, social security 
and retirement of Supreme Court judges; suspend the effects of decisions already taken by the Disciplinary 
Chamber  on  the  lifting  of  judicial  immunity;  and  suspend  the  provisions  preventing  Polish  judges  from 
directly  applying  EU  law  protecting  judicial  independence,  and  from  putting  references  for  preliminary 
rulings on such questions to the Court of Justice. 

22   See in that respect a press release of the ECtHR ECHR 066(2021) of 18 February 2021 and ECtHR ECHR 
140(2021) of 10 May 2021. The cases concern inter alia the status of the Constitutional Tribunal in view of 
the requirement of being a ‘tribunal established by law’; the premature termination of offices of members of 
the  National  Council  of  the  Judiciary;  the  independence  of  the  National  Council  for  the  Judiciary  and  its 
involvement  in  the  procedure  of  judicial  appointments  and  transfers  of  judges,  the  premature  dismissal  of 
court presidents; the disciplinary regime for judges and prosecutors, and the lowering of the retirement age 
for ordinary court judges. 

23   Judgment of 7 May 2021 Xero Flor w Polsce sp. z o.o. v. Poland (application no. 4907/18) not yet final.  
24   Following  the  judgment,  the  President  of  the  Constitutional  Tribunal  announced  that  the  Court  of  Human 
Rights lacks competence to issue such judgments and that the judgment concerned shall have no effect in the 
Polish  justice  system  (see  e.g.  doRzeczy.pl  ‘Przyłębska  o  wyroku  ETPCz.  Padły  mocne  słowa’  of  7  May 
2021). 

25   Cf. paras 92 – 96 of the Reasoned Proposal for a Council decision on the determination of a clear risk of a 
serious  breach  by  the  Republic  of  Poland  of  the  rule  of  law  (COM/2017/0835  final  -  2017/0360  (NLE)) 
(Reasoned Proposal).  According to the Commission the independence and legitimacy of the Constitutional 
Tribunal  are  seriously  undermined  and  the  constitutionality  of  Polish  laws  can  no  longer  be  effectively 
guaranteed. 

26   On  16  June  2021,  the  Constitutional  Tribunal  ruled  that  the  judgment  of  the  European  Court  of  Human 
Rights  is  ‘non-existent’.  In  particular,  the  Constitutional  Tribunal  held  that  it  had  been  issued  without  the 
legal basis and in violation by the European Court of Human Rights of its competences, thereby constituting 
an unlawful interference with the national legal order in matters which remain outside the competence of that 
Court (see the decision issued in case P 7/20). 

27   Applications  no.  26691/18  and  27367/18,  not  yet  final.  On  30  June  2021,  the  Secretary  General  of  the 
Council  of  Europe  sent  an  open  letter  to  the  Polish  Minister  of  Justice,  expressing  concern  and 
disappointment about recent statements from the Polish authorities contesting the authority of the European 
Court of Human Rights and the credibility of the system of the European Convention on Human Rights as a 
whole.  

5 

 
 
                                                 
courts.  The  Court  emphasised  the  importance  of  safeguarding  the  independence  of  the 
judiciary  and  respect  for  procedural  fairness  in  cases  concerning  the  careers  of  judges,  and 
held that, as their premature removal as vice-president of the court had not been reasoned nor 
examined either by an ordinary court or by another body exercising judicial duties, without 
there being any serious reason for the lack of judicial review, Poland had infringed the right 
of access to a court28. 

Concerns over the independence and legitimacy of the Constitutional  Tribunal,  raised 
by the Commission under the Article 7(1) TEU procedure, have still not been resolved29. 
This  is  also  illustrated  by  the  judgment  of  the  European  Court  of  Human  Rights  of  7  May 
202130. In 2020, the Ombudsperson continued to express concerns about the functioning and 
legitimacy  of  the  Constitutional  Tribunal,  including  as  regards  changes  made  to  already 
designated  hearing  panels  and  dismissals  of  requests  for  recusal  of  judges  in  view  of  their 
alleged  lack  of  impartiality  or  contested  status31.  Also  the  Council  of  Europe  expressed 
similar  concerns32.  Meanwhile,  the  Constitutional  Tribunal  continues  to  be  seized  on  cases 
concerning the justice reforms not only by the Prime Minister, the Marshal of the Sejm, the 
National  Council  for  the  Judiciary  and  the  newly  created  Disciplinary  Chamber  of  the 
Supreme Court33, but also by other (newly appointed) Supreme Court judges34 and the newly 
appointed First President of the Supreme Court35. Three cases initiated at the Constitutional 
Tribunal by the Prosecutor General, the Prime Minister, and a group of members of the Sejm 
seek an assessment of the compatibility with the Constitution of EU Treaty provisions and a 
declaration  of  the  precedence  of  the  Polish  Constitution  over  EU  law36.  The  Commission 
expressed  its  concerns  about  the  motion  lodged  by  the  Prime  Minister  as  it  contests  the 
fundamental principles of EU law, in particular the primacy of EU law37. Despite clear case 

28   The  issue  of  dismissal  of  court  presidents  and  vice-presidents  had  also  been  raised  in  the  Commission’s 

Reasoned Proposal under the Article 7(1) TEU procedure. 

29   Cf. paras 92-113 of the Reasoned Proposal. See the 2020 Rule of Law Report: Chapter for Poland – Part I. 
30   See preceding paragraph. 
31   Ombudsperson’s  statement  ‘Bezprawna  manipulacja  składem  TK  ws.  kadencji  RPO.  Wniosek  Rzecznika  o 
wyłączenie Julii Przyłębskiej’ of 9 April 2021. This concerns in particular the decision of the Constitutional 
Tribunal concerning the abortion legislation (see, to that effect, part IV below) and the decision concerning 
the Ombudsperson’s office. 

32   PACE  Resolution  2359(2021)  adopted  on  26  January  2021  (3rd  sitting)  which  considers  that  the 
Constitutional  Tribunal  ‘seems  to  be  firmly  under  the  control  of  the  ruling  authorities,  preventing  it  from 
being an impartial and independent arbiter of constitutionality and the rule of law’.  

33   See the 2020 Rule of  Law  Report: Chapter for Poland  – Part I. The rulings of the  Constitutional Tribunal 
concerned  appear  to  indicate that  judicial  appointments  carried  out  since  2018  at  the  request  of  the  newly 
composed National Council for the Judiciary ensure full independence of the judges appointed at its request. 
See the decisions and reasoning in cases P 22/19, U 2/20, Kpt 1/20, K 5/20, K 2/20, P 13/19.  

34   Case on the constitutionality of the power for Polish courts to decide on requests for recusal of judges based 
on  the  fact  that  such  judges  were  appointed  at  the  request  of  the  National  Council  for  the  Judiciary  in  its 
composition as of 2018 (case P 13/19). 

35   See below.  
36   Cf. Cases K 7/18 K 5/21, K 3/21 (the hearing was postponed until 3 August 2021. In his motion in case K 
3/21, the Prime Minister requested the Constitutional Tribunal to review the constitutionality of the first and 
second subparagraph of Article 1 and the second subparagraph of Article 19(1) of the Treaty on European 
Union (TEU), read in conjunction with Articles 2 and 4(3) TEU, in so far as those provisions, as interpreted 
by  the  Court  of  Justice  of  the  European  Union,  in  particular  in  its  judgment  of  2  March  2021  in  Case  C-
824/18, A.B. and Others, may require national authorities to set aside conflicting provisions of national law, 
even those of a constitutional nature. 

37   On 9 June 2021, the Commission expressed its concerns in a letter to the Polish authorities, requesting the 
withdrawal  of  the  motion  and  reserving  the  right  to  initiate  appropriate  proceedings  under  the  Treaties, 
where necessary. Poland replied on 29 June 2021, rejecting the Commission’s position. 

6 

 
 
                                                 
law of the Court of Justice38, the Constitutional Tribunal already indicated in an obiter dictum 
that the Court of Justice lacks competence to issue  rulings as regards the justice systems of 
the Member States39. In spite of the concerns referred to  above, the Constitutional Tribunal 
delivered  decisions  with  a  significant  impact  both  on  individuals  and  the  institutional 
framework.  In  particular,  on  22  October  2020  and  on  15  April  2021  respectively,  the 
Constitutional  Tribunal  issued  decisions  regarding  the  right  to  abortion  and  the  situation  of 
the  Ombudsperson40.  These  decisions  sparked  strong  criticism  within  Poland  and  beyond41. 
Moreover,  on  14  July  2021  –  following  the  issuance  of  an  interim  measures  order  by  the 
Vice-President of the Court of Justice42 – the Constitutional Tribunal held43 that Article 4(3) 
second subparagraph TEU read in connection with Article 279 TFEU are unconstitutional to 
the extent that they oblige Poland to abide by interim measures orders issued by the Court of 
Justice that affect the organisation and functioning of Polish courts and the procedure before 
such  courts.  In  a  public  statement,  the  Commission  expressed  its  deep  concern  about  this 
decision of the Constitutional Tribunal44. 

The National  Council for the Judiciary continues to be composed  mainly  of politically 
appointed members. It is recalled45 that the 2018 justice reform changed the procedure for 
the appointment of judges-members of the National Council for the Judiciary (NCJ)46. In its 
judgment of 2 March 2021, upon a preliminary reference of the Supreme Court, the Court of 
Justice  reiterated  that  for  the  participation  of  a  Council  for  the  Judiciary  in  making  the 
appointment process  of judges by political  organs more objective, such body must itself be 
sufficiently independent of the legislature and executive and of the body to which it gives an 
opinion47. On 6 May 2021, the Supreme Administrative Court ruled that the current NCJ does 

38   See, most recently, judgment of the Court of Justice of 2 March 2021 in case C-824/18 AB para. 68 and the 

case law cited therein. 

39   See  the  statement  of  reasons  in  case  Kpt  1/20 of  21  April  2020,  paras  329-348,  and  in  case  U  2/20  of  20 

April 2020. 

40   See cases K 1/20 and K 20/20 (see also part IV below). The decisions in these two cases further show that 
the publication of the Constitutional Tribunal’s findings is based on political decision of the Prime Minister. 
On 27 January 2021, the Prime Minister published the decision concerning the abortion legislation (issued 
on 22 October 2020), explaining the delay by the fact that the decision lacked written motives. The decision 
of the Constitutional Tribunal de facto removing the incumbent Ombudsperson from office was published on 
the day of its delivery (15 April 2021), even if the judgment was not accompanied by written motives. 

41   See for references Part IV of the present chapter.  
42   Order of the Vice-President of the Court of Justice of 14 July 2021 issued in case C-204/21 R, Commission 

v. Poland. See also above.  

43   In Case P 7/20, brought by the Disciplinary Chamber of the Supreme Court. 
44   See the Commission’s statement of 15 July 2021; statement/21/13726. 
45   See the 2020 Rule of Law Report: country chapter for Poland – Part I.  
46   The judges-members, who constitute the majority of the members of the NCJ, are now directly appointed by 
the Sejm instead of by their peers as previously. The new composition of the NCJ did not take into account 
the  Council  of  Europe  recommendations  and  is  one  of  the  concerns  raised  by  the  Commission  in  its 
Reasoned Proposal adopted under the Article 7(1) TEU procedure relating to the rule of law in Poland (see 
Recommendation  CM/Rec(2010)12  of  the  Committee  of  Ministers,  para  27  and  Paras  137-145  of  the 
Reasoned Proposal). See also Parliamentary Assembly of the Council of Europe, Report on the Functioning 
of Democratic Institutions in Poland of 6 January 2020 (2359(2021)) of 26 January 2021.  

47   Judgment of 2 March 2021 in case C-824/18 AB, paras 133-139. The Court reiterated its legitimate doubts as 
to its independence in its judgment of 15 July 2021,  Commission v Poland, C-791/19, paras. 104-108. It is 
recalled that a resolution of  three joined Chambers of the  Supreme Court of 23 January 2020 had already 
stated that the newly composed NCJ is not independent and asserted that new Supreme Court judges selected 
by it are not allowed to adjudicate cases. The resolution was subsequently found to be inconsistent with the 
Constitution  and  with  EU  law  by  the  Constitutional  Tribunal,  adjudicating  upon  request  of  the  Prime 
Minister  and  the  Marshal  of  the  Sejm,  supported  by  the  President  of  the  Republic  and  by  the  Prosecutor 

7 

 
 
                                                 
 
not  provide  sufficient  guarantees  of  independence  from  the  executive  and  the  legislature  in 
the  procedure  for  appointing  judges48.  Despite  the  serious  concerns  also  expressed  by  a 
number  of  other  Polish  courts49  pointing  to  its  lack  of  independence,  the  NCJ  continues  to 
propose  candidates  for  judicial  appointments  to  the  President  of  the  Republic  which  are 
systematically appointed50. Throughout 2020 and 2021, the NCJ has issued one resolution to 
protect  the  independence  of  a  Polish  judge,  namely  to  express  support  to  a  member  of  the 
Disciplinary  Chamber  of  the  Supreme  Court51,  while  refusing  to  express  similar  support  to 
judges targeted by criminal investigations carried out by the prosecution services in the same 
period52.  The  NCJ  also  provided  statements  in  support  of  certain  aspects  of  the  justice 
reforms criticised by the Commission53. 

The  Supreme  Court,  following  changes  in  2020,  was  subject  to  further  reforms 
regarding its functioning.  On 1 April 2021, the President of the Republic signed into law 
the bill of 30 March 2021 amending the law on the Supreme Court. The new law lowers the 
quorum  requirements  for  judges  to  select  candidates  to  the  post  of  President  of  a  Chamber 
and allows the President of the Republic to appoint an ‘acting’ President of the Chamber if 
such requirements are not met. Moreover, the law grants the First President of the Supreme 
Court control over sittings of joined Chambers gathered to settle legal issues, convened either 
by the First President on her own motion or at the request of i.a. the Prosecutor General or the 
Ombudsperson.  The  new  law  also  changes  the  rules  governing  the  extraordinary  appeal 
procedure  by  prolonging  by  2  years  the  period  to  make  extraordinary  appeals  against  all 
rulings of all Polish courts that became final after 17 October 199754. The Ombudsperson and 
the National Bar Council expressed critical views on the new law, underlining that it would 

General (see rulings of 20 April 2020 in case U 2/20 and of 21 April 2020 in case Kpt 1/20). The Supreme 
Court,  however, has continued to apply its resolution (e.g. a decision of the Criminal Chamber of 25 June 
2020 in case I KZP 1/20). 

48   See judgment in case II GOK 2/18, in particular point 8.3. This judgment implemented the Court of Justice 

judgment of 2 March 2021 in case C-824/18 AB et al. See also above.  

49   See in particular judgment of the Supreme Court of 5 December 2019 in case III PO 7/18 and two decisions 
of 15 January 2020 in cases III PO 8/18 and III PO 9/18. See also judgments of the Supreme Administrative 
Court of 6 May 2021 in cases II GOK 2/18 through 7/18 and judgment of 13 May 2021 in case II GOK 4/18. 
50   Since  the  publication  of  the  2020  Rule  of  Law  report,  the  President  of  the  Republic  made  judicial 
appointments on 6 October, 26 November 18 December 2020, and on 26 January, 4 February, 18 March and 
26 April 2021. 

51   Resolution of 26 March 2021. The NCJ resolution was motivated by  the fact that the judge was subject to 
undue pressure by staff of a Polish University which formally condemned the judge’s involvement in a case 
concerning the lifting of immunity of an ordinary court judge.  

52   See the Resolution of 15 April 2021. The judges concerned were called to appear before the prosecutor as 
witnesses  in  a  criminal  investigation  concerning  the  judicial  decision  they  rendered,  based  on  labour  law, 
invalidating the National Prosecutor’s decision on a  secondment of a prosecutor. On 13 January 2021, the 
Ombudsperson announced his intervention in the above case, considering that the actions undertaken by the 
prosecution  services  may  violate  judicial  independence  (see  the  press  release  of  the  Ombudsperson  of  13 
January 2021).  

53   See  notably  the  statements  of  the  NCJ  (WW.023.1.2021  and  WP  024-13/19)  of  12  March  2021  in  cases 
Advance  Pharma  sp.  z  o.  o.  v  Poland  and  Grzęda  v  Poland  (in  these  cases  concerns  related  to  the  abrupt 
termination  of  mandates  of  the  former  judges-members  of  the  NCJ  as  well  as  the  new  method  of 
appointment of the current judges-members of the NCJ by the Sejm are examined). As regards the concerns 
of  the  Commission  in  that  respect,  see  in  particular  the  reasoned  proposal  of  20  December  2017  adopted 
under the Article 7(1) TEU procedure. 

54   In spite of concerns expressed by the Commission in its Reasoned Proposal adopted under Article 7(1) TEU 
procedure as regards the introduction of the extraordinary appeal procedure to the Polish justice system (see 
also Part IV below). For further information on the procedure; see the 2020 Rule of Law Report: Chapter for 
Poland - Part IV.  

8 

 
 
                                                                                                                                                        
further  affect  the  independence  of  the  Supreme  Court55.  The  current  First  President  of  the 
Supreme Court, appointed56 as reported last year57 following a contested procedure, has taken 
decisions  giving  rise  to  concerns,  in  particular  seizing  the  Constitutional  Tribunal  on 
controversial  issues,  including  to  limit  the  right  to  access  to  documents58  and  requesting  to 
shield newly appointed Supreme Court judges  -  including herself  - from  having their status 
contested  in  cases  pending  before  the  Supreme  Court59.  The  First  President  also  seized  the 
Chamber of Extraordinary Control and Public Affairs to recuse certain Supreme Court judges 
from  cases  in  which  they  had  already  made  a  preliminary  ruling  request  to  the  Court  of 
Justice60. On 16 July 2021, the First President of the Supreme Court issued a statement which 
refers to the judgment of the Constitutional Court of 14 July 2021 and, considering that EU 
law does not cover matters regarding the organisation and functioning of the Member States’ 
judiciary,  informs  about  the  repeal  of  the  instruction  for  the  Disciplinary  Chamber  of  the 
Supreme Court suspending its activity in disciplinary proceedings against judges61.  

Several judges are suspended and cannot adjudicate cases following the decisions of the 
Disciplinary  Chamber  to  lift  their  immunity.  The  disciplinary  regime,  substantially 
amended in 201862, has given rise to concerns and the Commission contested63 its violation 
of EU law in  infringement  proceedings64. On 8 April 2020, following a request  for interim 
measures65, the Court of Justice ordered Poland to immediately suspend the application of the 

55   Opinion  of  the  Ombudsperson  of  23  March  2021  (IV.510.20.2021).  Opinion  of  the  Praesidium  of  the 
National  Bar  Council  of  9  March  2021  (NRA.12-SM-1.15.2021).  It  is  noted  that  the  new  law  received  a 
positive  opinion  by  the  new  First  President  of  the  Supreme  Court  and  by  the  National  Council  for  the 
Judiciary  (Supreme  Court’s  opinion  of  24  February  2021  presented  by  the  new  First  President  of  the 
Supreme  Court  (BSA-1-021  57/21).  NCJ  opinion  of  12  March  2021  (WO  420.18.2021)  on  the  draft  law 
amending the law on the Supreme Court). 

56   The resolution of the National Council for the Judiciary giving rise to the appointment of the First President 
to the Supreme Court, in her capacity of judge, was invalidated by the Supreme Administrative Court in its 
judgment  of  6  May  2021  in  case  II  GOK  2/18  (see  the  operative  part  and  the  second  paragraph  of  the 
statement of reasons), implementing the Court of Justice judgment of 2 March 2021 in case C-824/18 AB et 
al. (see above). 

57   See the 2020 Rule of Law Report: Chapter for Poland – Part I. 
58   See Part III of the present Chapter. 
59   On 2 December 2020, the new First President of the Supreme Court lodged a request with the Constitutional 
Tribunal  (case  K  24/20)  to  declare  the  unconstitutionality  of  certain  provisions  of  the  Code  of  Civil 
Procedure,  and  laws  governing  the  functioning  of  the  judiciary  to  the  extent  that  these  allow  for  the 
ascertaining  of  the  existence/non-existence  of  employment  relationship  of  a  given  judge  in  view  of  the 
procedure of his or her appointment by  the President of the  Republic acting at the request of the National 
Council for the Judiciary in its new composition. The request concerning the access to documents legislation 
has been registered in the Constitutional Tribunal as case K 1/21. 

60   The judges concerned referred preliminary ruling requests to the Court of Justice in cases C-508/19 and C-
491/19  concerning,  in  essence,  the  possibility  for  national  courts  to  assess  the  compliance  with  EU  law 
requirements on judicial independence.  

61   Statement of the First President of the Supreme Court of 16 July 2021.   
62   Law of 8 December 2017 on the Supreme Court which entered into force on 3 April 2018. 
63   According to the Commission, the new disciplinary regime can be used as a system of political control of the 
content of judicial decisions,  in  violation of the  requirements of judicial independence (cf.  Case  C-216/18 
PPU, LM, 25 July 2018, para 67). All grievances of the infringement action can be found in the Commission 
press release IP/19/6033. 

64   The law of 20 December 2019 further broadened the notion of disciplinary offence and increased the risk to 
judicial independence. This issue is covered by the new infringement case referred to the Court of Justice on 
1 April 2021 (case C-204/21). 

65   According  to  the  Commission,  the  disciplinary  regime  allows  judges  to  be  subject  to  disciplinary 
proceedings in view of the content of their judicial decisions or statements they make about the functioning 
of constitutional bodies in Poland; see Part I of the 2020 Rule of Law Report: Chapter for Poland. 

9 

 
 
                                                 
national  provisions  on  the  powers  of  the  Disciplinary  Chamber  of  the  Supreme  Court  with 
regard to disciplinary cases concerning judges66. Following the suspension of the disciplinary 
cases  from  its  remit67,  the  Disciplinary  Chamber  has  begun  to  actively  exercise  its  new 
powers68  to  decide  on  motions  of  the  prosecution  service  to  lift  the  immunity  of  judges 
alleged to have committed a criminal offence. Since 14 February 2020, the date of entry into 
force  of  the  new  law  on  the  judiciary,  until  15  March  2021,  the  Disciplinary  Chamber 
examined over 40 such motions already, and in more than 10 such cases the judges concerned 
have  been  suspended  in  office  and  their  salary  reduced.  Several  motions  remain  pending 
before the Disciplinary Chamber, including as regards judges of the Supreme Court69. In the 
context of the infringement proceedings in case C-204/21, the Commission asked70 the Court 
of Justice to suspend all activities of the Disciplinary Chamber as regards cases concerning 
judges,  including  decisions  to  lift  the  immunity  of  judges.  On  14  July  2021,  the  Vice-
President  of  the  Court  of  Justice  granted,  in  full,  the  request  of  the  Commission  and 
suspended all activities of the Disciplinary Chamber of the Supreme Court as regards judges 
– different from disciplinary cases concerning judges71. On 15 July 2021, the Court of Justice 
issued  a  final  ruling  in  the  infringement  case  brought  by  the  Commission,  finding  that  the 
disciplinary regime for judges in Poland is not compatible with EU law72. 

Judges continue to be subject to intrusive requirements. The new law on the judiciary of 
20 December 2019 obliges all judges in Poland to disclose personal information, such as their 
membership in associations, functions in non-profit organisations and their membership and 
position  in  political  parties  prior  to  29  December  1989.  Disciplinary  proceedings  against 
judges who refused to comply with this requirement continue to be pending73. In the context 
of  the  infringement  proceedings  in  case  C-204/21,  the  Commission  considers  that  this 
requirement is inconsistent with EU law as regards the right to respect for private life and the 

66   Order of the Grand Chamber of 8 April 2020 in case C-791/19 R. 
67   Disciplinary investigations and proceedings continue being used by the Disciplinary  Officers for Ordinary 
Courts  appointed  by  the  Minister  of  Justice.  See  in  that  respect  a  report  by  Themis  association  of  judges 
‘From bad to worse – the Polish judiciary in the shadow of the <muzzle act>’ (second edition updated as of 
31 December 2020). 

68   The law of 20 December 2019 amending the law on Ordinary Courts Organisation, the Supreme Court, and 
certain  other  laws  granted  the  Disciplinary  Chamber  the  competence  to  lift  the  immunity  of  judges  when 
criminal proceedings are brought against them (a competence previously exercised by disciplinary courts of 
first instance). This issue is covered by the new infringement case referred to the Court of Justice on 1 April 
2021 (case C-204/21). 

69   On 2 July 2021, the Disciplinary Chamber waived the immunity and suspended in office the President of the 
Labour and Social Affairs Chamber. Following this decision, a group of 75 Supreme Court judges (retired 
and  active)  issued  an  open  statement,  condemning  the  decision  and  underlining  that  the  Disciplinary 
Chamber is not a court within the meaning of national and EU law.  

70   Commission press release IP/21/1524. The Polish Government considers that the Commission is exceeding 
its  competences  under  the  Treaty  and  rejects  the  position  the  Commission  has  taken  in  this  infringement 
procedure. 

71   Moreover,  the  Vice-President  ordered  Poland  to  suspend  the  effects  of  resolutions  of  the  Disciplinary 
Chamber of the Supreme Court whereby judges have been suspended in office and had their salary reduced. 

72   Judgment of the Court of Justice of 15 July 2021, Commission v Poland, C-791/19. See also above. 
73   On 22 July 2020, the Deputy Disciplinary Officer appointed by the Minister of Justice opened disciplinary 
proceedings against 14 judges belonging to the ‘Forum of Judicial Cooperation’ association the membership 
in  which  was  not  disclosed  by  these  judges,  as  required  by  the  law  of  20  December  2019  (see  the  press 
communique of 22 July 2020 of the Deputy Disciplinary Officer). 

10 

 
 
                                                 
right to protection of personal data as guaranteed by the Charter of Fundamental Rights of the 
EU and the General Data Protection Regulation74.  

A general prohibition for Polish courts to challenge the powers of courts and tribunals, 
constitutional  organs  and  law  enforcement  agencies  continues  to  exert  its  effects.  The 
new law  on the judiciary75  prevents  Polish judges from  ruling on the lawfulness of judicial 
appointments  and  on  a  judge’s  power  to  perform  judicial  functions.  The  same  prohibition 
applies to judges assessing the lawfulness of the composition of a hearing bench. At the same 
time, the law granted the new Chamber of Extraordinary Control and Public Affairs the sole 
power to decide on issues related to judicial independence76. The Commission decided on 31 
March  2021  to  challenge  these  prohibitions  of  the  law  on  the  judiciary  in  infringement 
proceedings before the Court of Justice77. On 14 July 2021, the Vice-President of the Court of 
Justice issued an Order for interim measures in case C-204/21 R, suspending the application 
of the provisions concerned. In certain cases in which ordinary courts challenged the legality 
of  rulings  delivered  by  the  Constitutional  Tribunal78  and  by  the  Disciplinary  Chamber79, 
judges have been subjected to disciplinary proceedings80.  

Concerns  persist  regarding  the  fact  that  the  offices  of  Minister  of  Justice  and  the 
Prosecutor General are held by the same person.  As already set out in the 2020 Rule of 
Law Report, following the merging in the context of the reforms in 2016 of the positions of 
Prosecutor General and Minister of Justice, the Minister of Justice directly wields the powers 
vested  in  the  highest  prosecutorial  office,  including  the  authority  to  issue  instructions  to 
prosecutors  in  specific  cases  and  to  transfer  prosecutors81.  This  power  has  been  subject  to 

74   Commission press release IP/21/1524. The Polish Government considers that the Commission is exceeding 
its  competences  under  the  Treaty  and  rejects  the  position  the  Commission  has  taken  in  this  infringement 
procedure. 

75   See the 2020 Rule of Law Report: Chapter for Poland – Part I. 
76   This power includes the examination of  motions to recuse judges from cases in  view  of doubts as to their 
independence or impartiality. Such decisions are de facto immunised from being changed by other Chambers 
of  the  Supreme  Court.  This  Chamber  dismisses  requests  for  recusal  of  judges  when  based  on  allegations 
related to the circumstances of appointment of a judge. E.g. in context of the case I DI 3/21, the Chamber 
dismissed a request for recusal of Disciplinary Chamber judges assigned to a case in which the prosecution 
services requested the lifting of immunity of the President of the Labour Chamber of the Supreme Court (see 
the ruling of 21 January 2021 I NWW 8/21). 
77   Commission press release 2021 IP/21/1524. 
78   On 3 November 2020, it was disclosed to the public that a district court judge refused to apply a ruling of the 
Constitutional Tribunal which concerned the case pending before him, considering the ruling to be issued by 
an  illegitimate  composition  of  the  Constitutional  Tribunal.  On  25  February  2021,  a  disciplinary  officer 
refused  to  initiate  disciplinary  proceedings  against  that  judge.  See  Gazeta  Prawna,  ‘Zignorowanie  wyroku 
TK. Sędziemu nie będzie grozić dyscyplinarka’ of 25 February 2021. 

79   On 26 February 2021, a labour court in Warsaw ruled that one of the judges whose immunity was lifted by 
the Disciplinary Chamber which also suspended that judge in office, continues to be an active judge since 
the decision of the Disciplinary Chamber – for not meeting the requirements of EU and national law – is not 
legally binding. Based on a similar reasoning another labour court ordered a court president to reintroduce in 
office a judge suspended by the Disciplinary Chamber for attempting to apply in a case pending before him 
the judgment of 19 November 2019 of the Court of Justice delivered in case C-585/18 AK et al. 

80   Thus  the  decision  by  an  appeal  court  judge,  in  the  context  of  a  case  pending  before  him,  to  request  a 
disclosure  of  documents  related  to  the  appointment  of  a  judge  who  issued  the  ruling  under  appeal,  was 
considered  to  constitute  grounds  for  disciplinary  liability  (See  the  press  communique  of  the  Deputy 
Disciplinary Officer of 5 August 2020). Disciplinary investigation  have been opened against judges of the 
‘Iustitia’ association  for statements  made  as to the effectiveness and legality of a decision of the  Supreme 
Court on the validity of judicial appointment by the President of the Republic (see the press communique of 
the Deputy Disciplinary Officer of 4 August 2020). 

81   See also Part II of the present Chapter.  

11 

 
 
                                                 
criticism  including  by  the  Venice  Commission82  and  by  the  Commission  in  its  Reasoned 
Proposal  adopted  under  the  Article  7(1)  TEU  procedure  relating  to  the  rule  of  law  in 
Poland83.  Recently,  the  National  Prosecutor84  has  actively  exercised  the  power  to  transfer 
prosecutors, without their consent and without providing justification, to another post for up 
to 6 months85. This power is reported to be used in practice as a tool against prosecutors who 
express  critical  views  about  the  functioning  of  the  prosecution  service86.  Judges  seized  in 
disputes  in  which  such  secondments  are  challenged  have  been  called  by  the  prosecution 
services to  testify in  the context  of criminal  investigations87. Moreover, concerns are raised 
that  the  exercise  by  the  Prosecutor  General  and  the  National  Prosecutor  of  their  power  to 
discretionally  reattribute  cases  among  prosecutors  may  be 
influenced  by  political 
considerations in order to impact on the conduct of criminal proceedings88, including in cases 
of  allegations  of  financial  embezzlement89.  According  to  the  National  Bar  Council,  the 
prosecution  services  have  recently  also  been  targeting  defence  lawyers  acting  in  politically 
sensitive  cases,  thereby  posing  a  threat  to  the  right  to  professional  secrecy90.  This  is 

82   Venice  Commission  (opinion  CDL-AD(2017)028);  see  also  the  association  of  prosecutors  ‘Lex  Super 

Omnia’ statements of 26 April and of 3 June 2020. 

83   Cf. Paras 169-170 of the Reasoned Proposal. According to the Polish Government, the merger of the office 
of Minister for Justice with the function of the Prosecutor-General is based on the Polish historical tradition. 
84   The National Prosecutor is the first deputy of the Prosecutor General and is appointed and dismissed by the 
Prime Minister acting at the request of the Prosecutor General (see Article 14(1) of the Law of 28 January 
2016 on the Public Prosecutor’s Office). 

85   On 18 January 2021 an independent association of prosecutors ‘Lex Super Omnia’ informed the public that 
around  20  prosecutors,  including  prominent  members  of  that  association,  had  been  forced  to  relocate  to 
different  prosecutorial  units  around  Poland  within  48  hours  from  receiving  respective  decisions  of  the 
National  Prosecutor  (these  decisions  were  not  motivated).  According  to  associations  of  judges  and  of 
prosecutors,  these  secondment  decisions  constitute  a  form  of  punishment  for  prosecutors  who  act 
independently  from  the  central  government.  The  National  Prosecutor’s  Office  explains  the  decisions 
concerned by the need to ensure staffing of prosecutorial units resulting from the COVID-19 pandemic.  
86   See the statement of 21 January 2021 of over 70 Supreme Court judges, including  former Supreme Court 

judges, all appointed to the Supreme Court before 2018.  

87   In  December  2020,  Polish  media  informed  that  the  special  unit  of  the  National  Prosecution  dealing  with 
crimes committed by judges summoned, as witnesses, 7 judges of ordinary courts, all of which adjudicated 
in a labour case of a prosecutor who contested the forced secondment decision, submitting that it constitutes 
a form of harassment. The National Council for the Judiciary refused to issue a resolution condemning the 
above practice of the prosecution services (see above). Oko.Press, ‘Szaleństwo Prokuratury Krajowej. Ściga 
7 sędziów za korzystane dla gnębionego prokuratora orzeczenia’ of 16 December 2020.  
88   Polish Ombudsperson’s communique regarding the case of prosecutor Krasoń of 2019.  
89   In March 2021, Polish  media reported that the primary  use of the  new powers of the Public Prosecutor to 
control the handling of criminal investigations was to discontinue such investigation against the current head 
of  the  state-controlled  PKN  Orlen  company  accused  of  cooperating  with  an  organised  criminal  group  and 
conducting  economic  activities  not  compatible  with  his  previous  office  of  mayor.  See  Gazeta  Wyborcza, 
‘Lex  Obajtek.  Jego  sprawa  zniknęła  z  sądu,  gdy  PiS  pozmieniał  prawo.’  of  8  March  2021.  The  Supreme 
Audit Office announced on 22 March 2021 that it would conduct investigations as regards use for personal 
purposes of financing received by this person from the state authorities. See doRzeczy, ‘NIK przygląda się 
sprawie Obajtka. Analizowane są dokumenty’ of 22 March 2021. 

90   On  15  October  2020,  the  Central  Anti-Corruption  Bureau  requested  a  prosecutorial  unit  to  detain  a 
prominent lawyer acting for the defence in a politically sensitive case. Immediately following the detention, 
the residence and office of the lawyer were searched without the legally required attendance of the President 
of  the  Regional  Bar  Council  or  a  person  appointed  by  him.  On  16  October  2020,  the  Praesidium  of  the 
National  Bar  Council  issued  a  statement  expressing  concerns  about  the  search  conducted  in  places  where 
casefiles regarding the lawyer’s clients were stored, which constituted a breach of lawyer’s secrecy. On 22 
January  2021,  a  court  considered  the  detention  of  the  lawyer  and  the  search  of  his  dwelling  and  office 
conducted to be unjustified and unlawful. 

12 

 
 
                                                 
aggravated by the fact that prosecutors have the power to suspend a lawyer’s licence without 
prior consent of the court91. 

Quality 

As  regards  human  resources,  similarly  to  2020,  a  significant  number  of  judicial  posts 
remain vacant. According to the official data published by the Ministry of Justice, in 2020 
there  were  1048  vacant  posts  in  ordinary  courts92.  This  being  said,  Poland’s  expenses  on 
courts are at the level of the EU average per inhabitant and Poland continues to have one of 
the  highest  general  government  expenditures  for  the  justice  system  (including  prosecution 
and legal aid) as a percentage of GDP93. 

Important  progress  has  been  made94  but  there  is  room  for  improvement  in  the 
digitalisation of the justice system.  There is  still a need to  introduce more  IT tools in  the 
context  of  judicial  procedures,  and  stakeholders  have  called  for  further  efforts  to  digitalise 
courts95. There is also a need to revise those IT tools which the Supreme Audit Office found 
to be prone to abuse, in particular the system of allocation of cases in courts96. This year, the 
Sejm adopted amendments to the Code of Civil Procedure97 aimed at a further digitalisation 
of the civil procedure. The reform will introduce electronic auctions concerning properties to 
be  used  by  bailiffs  in  the  context  of  execution  of  court  rulings.  Moreover,  notwithstanding 
critical  views  expressed  by  representatives  of  legal  professions98,  the  reforms  seek  to 

91   The decision to suspend temporarily a lawyer’s licence can be challenged before the court. Representatives 
of legal professions during the country visit emphasised, however, that in view of the time needed to quash 
such  suspension,  the  decision  of  prosecutor  is  capable  of  adversely  affecting  interests  of  the  lawyer 
concerned. 

92   In 2019 there were 848 vacant posts. 
93   Figures 28 and 29, 2021 EU Justice Scoreboard. 
94   As  regards  IT  tools,  the  following  possibilities  currently  exist:  taking  evidence  with  the  use  of  technical 
devices  enabling  this  activity  to  be  performed  remotely;  replaying  the  recorded  video  and  sound  at  the 
hearing; preparing minutes of a hearing or a court session using an audio or video recording device; sharing 
the content of the minutes and letters in electronic form via the ICT system supporting court proceedings or 
another teleinformation system used to make them available and possibility for the parties and participants of 
the proceedings to obtain recorded sound or image and sound from the case files; admittance of electronic 
evidence; electronic writ-of-payment proceedings; and making deliveries via the ICT system. 

95   See  the  report  by  Court  Watch  Polska,  ‘Sądy  dostępne  przez  Internet  –  Szanse  i  Zagrożenia’  (2020); 
Prawo.pl,  ‘Raport:  Pandemia  musi  przyspieszyć  informatyzację  sądów’  of  3  February  2021.  See  also 
‘Iustitia’ association of judges’ statement of 9 May 2020. Ombudsperson’s letter of 9 June 2020 submitted to 
the  Ministry  of  Justice.  The  National  Bar  Council’s  resolution  of  12  March  2020  (No.  155/20)  with 
appendix. See also figure 39 of 2021 EU Justice Scoreboard. 

96   On 15 January 2021, the Supreme Audit Office (‘Office’) published a report (No P/19/038) concerning the 
implementation  of  IT  projects  in  order  to  enhance  the  effectiveness  of  the  justice  system.  The  report 
concludes  that  the  system  of  random  allocation  of  cases  is  prone  to  abuse  as  it  can  be  interfered  with  to 
attribute cases to concrete judges. Mechanisms protecting the integrity of the system are based solely on the 
good administrative practice of persons employed in secretariats of courts. According to the report, there are 
also  shortcomings  in  the  functioning  of  electronic  writ  proceedings.  A  case  is  pending  before  an 
administrative court in which an NGO is seeking public disclosure of the algorithm governing the IT system 
of case allocation by the Ministry of Justice. 

97   The law of 28 May 2021 amending the law – Code of Civil Procedure and certain other laws, signed by the 

President of the Republic on 9 June 2021. 

98   According  to  the  opinion  of  the  National  Bar  Council  (opinion  of  1  February  2021),  several  changes 
introduced to the civil procedure are capable of affecting the right to court, to fair trial and procedural equity. 
Moreover,  the  general  prohibition  to  convene  general  assemblies  by  courts  and  tribunals  is  considered 
inconsistent  with  the  Polish  constitution  as  –  in  combination  with  the  unlimited  power  of  the  Minister  of 

13 

 
 
                                                 
 
introduce  a  system  of  electronic  submission  of  documents  through  a  comprehensive  IT 
system  for  ordinary  courts,  where  a  document  would  be  presumed  to  have  been  duly 
delivered 14 days following its submission. 

Further  reforms  concerning  criminal  and  civil  procedural  law  have  been  adopted.  In 
order  to  respond  to  challenges  created  by  the  COVID-19  pandemic,  recently  adopted99 
provisions introduce an obligation to hold court sittings in camera, in case online connection 
with parties to civil proceedings is not possible100. Accordingly, during the state of epidemics, 
civil  cases  would  be  mostly  examined  by  single-judge  benches  only101  and  the  modalities 
applicable to specific procedures would be suspended102. Furthermore, these changes would 
also  prohibit  courts  and  tribunals  in  Poland  from  convening  general  assemblies.  Also  as 
regards the criminal procedural law, the Sejm adopted a set of amendments103. The changes 
would, among others, limit  access to  the casefiles of closed preliminary investigations, and 
would  introduce  obligations  on  telecom  operators  to  secure  data  immediately  following  a 
request of a court or a prosecutor without any provision limiting this power. Specific changes 
to modalities applicable to the composition of hearing benches would also be introduced104. 
Some of these changes have given rise to criticism105.  

Efficiency 

The overall performance of ordinary courts is close to the EU average when it comes to 
the length of proceedings. In 2019, there was a slight decrease in the estimated time needed 
to  resolve  litigious  civil  and  commercial  cases,  and  the  rate  of  resolving  such  cases 
improved106.  Whereas  the  number  of  such  cases  in  2019  dropped,  the  number  of  pending 
cases remained the same107. As regards the overall performance of ordinary courts, according 
to  data  published  by  the  Ministry  of  Justice  in  2021,  between  2015  and  2020  the  average 
length  of  proceedings  increased  from  4.2  months  to  7  months108.  Poland  remains  under 

Justice to appoint court presidents and vice-presidents – courts and tribunals are de facto fully subordinated 
to the executive as regards possibilities to present opinions by representatives of the judiciary.  
99   The law of 28 May 2021 amending the law – Code of Civil Procedure and certain other laws. 
100  A derogation from that rule would be possible in case health considerations permit it. 
101  A derogation from that rule would be under the discretion of the court president and only if necessitated by a 

particularly complicated or unprecedented nature of the case. 

102  The Supreme Court – within a year from the end of the state of epidemics – will not be bound by a request to 

organise a hearing in cassation appeals lodged in civil cases. 

103  The law of 20 April 2021 amending the Criminal Code and certain other laws, adopted in third reading by 
the Sejm on 21 April 2021, currently awaiting signature of the President of the Republic. The law seeks to 
implement  Directive  (EU)  2017/541  of  15  March  2017  on  combating  terrorism  and  replacing  Council 
Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA. 

104  During the state of epidemics and a year thereafter criminal cases concerning acts subject to up to five years 

of imprisonment will be examined by a single-judge bench. 

105  According to the opinion submitted by the President of the  National Bar Council (NRA.12-SM-1.2.2021), 
the  amendments  aim  at  preventing  public  control,  including  by  the  media,  of  preliminary  criminal 
investigations, thus annihilating the possibility of controlling actions by the prosecution services. 

106  Whereas in 2018 the rate amounted to approximately 92%, it reached almost 100% in 2019. 
107  Figures  3,  7,  11  and  14,  2020  EU  Justice  Scoreboard.  The  number  of  incoming  civil  and  commercial 
litigious cases remained high in recent years (figure 3, 2020 EU Justice Scoreboard). Despite an increase of 
pending  civil,  commercial,  administrative  and  other  cases  in  first  instance  in  comparison  to  2012,  their 
clearance rate did not significantly drop in 2018 (figures 10 and 13, 2020 EU Justice Scoreboard). 

108  Analysis  by  ciekaweliczby.pl  (‘Ile  trwają  postępowania  sądowe  w  Polsce?’)  as  based  on  the  official  data 
disclosed by the Ministry of Justice on the efficiency of judicial proceedings  – the average time of judicial 
proceedings in years 2011-2020 (for all types of cases).  

14 

 
 
                                                                                                                                                        
enhanced supervision of the Committee of Ministers of the Council of Europe for the length 
of civil and criminal proceedings109. 

The performance of administrative courts is above the EU average. A slight increase is 
visible in the number of incoming administrative cases, whilst the estimated time needed to 
resolve them continues to decrease. The rate of resolving such cases dropped below 100%110.  

II.  ANTI-CORRUPTION FRAMEWORK 

The legal and institutional framework to prevent and combat corruption is largely in place. In 
Poland,  several  authorities  are  responsible  for  anti-corruption,  including  the  Minister  of 
Justice,  who  is  also  the  Prosecutor-General,  and  the  Minister  of  Internal  Affairs  and 
Administration who is in charge of prevention aspects, such as the lobby register for public 
officials.  The  Central  Anti-Corruption  Bureau  is  the  specialised  law  enforcement  body 
combating  corruption  in  the  public  and  the  private  sector111  alongside  the  Central  Police 
Investigation  Bureau  and  the  regular  police112,  the  Internal  Security  Agency113  and  the 
Prosecution  Service114.  It  combines  intelligence  and  police  functions  and  can  trigger  both 
administrative and criminal proceedings. More recently, the Central Anti-Corruption Bureau 
has  also  been  tasked  with  policy  coordination115  and  corruption  prevention,  including 
educational awareness-raising activities against corruption and an e-learning platform116. The 
Supreme  Audit  Office  (NIK)  has  a  preventive  role  monitoring  the  public  spending  of  the 
government  administration  bodies,  including  the  National  Bank  of  Poland  and  state  legal 
persons among others117. 

The perception among experts and business executives is that the level of corruption in 
the  public  sector  remains  relatively  high.  In  the  2020  Corruption  Perceptions  Index  by 
Transparency International, Poland scores 56/100 and ranks 13th in the European Union and 
45th globally118. This perception has significantly deteriorated119 over the past five years120. 

109  Council  of  Europe  CM/Del/Dec(2018)1331/H46-19:  H46-19  Bąk  (Application  No.  7870/04),  Majewski 
(Application No. 52690/99), Rutkowski and Others (Application No. 72287/10) and Jan Załuska, Marianna 
Rogalska and 398 other applications (Application No. 53491/10) v. Poland. 

110  Figures 4, 8, 9 and 12, 2021 EU Justice Scoreboard. 
111  Cf. Law of 9 June 2006 on the Central Anti-Corruption Bureau. 
112  Law  of  6  April  1990  on  the  police.  Within  the  police,  the  Police  Internal  Affairs  Bureau  is  appointed  to 
combat  and  reduce  corruption  within  the  police  itself.  According  to  the  Bureau’s  2019  report,  25%  of 
accusations against police officers concern corruption crimes (see:  statistical data  provided by  the Internal 
Affairs Bureau of the Police. 

113  Act of 24 May 2002 on the Internal Security Agency and Foreign Intelligence Agency. 
114  The Law of 28 January 2016 on the Prosecution Service.  
115  The  Central  Anti-Corruption  Bureau  replaced  the  Minister  of  Interior  and  Administration  in  the  overall 

coordination of the Governmental Anti-Corruption Programme. 

116  Educational  website  of  the  Central  Anti-Corruption  Bureau:  http://antykorupcja.gov.pl/,  and  its  e-learning 

platform: https://szkolenia-antykorupcyjne.edu.pl/.  
117  Law of 23 December 1994 on the Supreme Audit Office.  
118  Transparency  International,  Corruption  Perceptions  Index  2020  (2021),  pp.  2-3.  The  level  of  perceived 
corruption is categorised as  follows: low (the perception among experts and business executives of public 
sector  corruption scores  above  79);  relatively  low  (scores  between  79-60),  relatively  high  (scores  between 
59-50), high (scores below 50). 

119  In 2015 the score was 63, while, in 2020, the score is 56. The score significantly increases/decreases when it 
changes  more  than  five  points;  improves/deteriorates  (changes  between  4-5  points);  is  relatively  stable 
(changes from 1-3 points) in the last five years. 

15 

 
 
                                                 
take 

the  years 

into  account 

to  come,  which  should 

At  the  central  level,  Poland  had  a  developed  strategic  anti-corruption  framework  in 
place for the years 2018-2020 but no subsequent plan has yet been published. According 
to the Government, preparatory work is under way for a new national strategy to prevent and 
combat  corruption  for 
the 
recommendations  of the EU, the Group of States against Corruption (GRECO), the OECD, 
and the UN121. In addition  to its primary tasks as an enforcement agency, the Central Anti-
Corruption  Bureau  is  also  the  coordinating  body  for  the  Government  Programme  for 
Counteracting Corruption for the  years 2018-2020122 and the accompanying Action Plan123, 
and as such mandated to propose legislation and  undertake policymaking. The March 2021 
implementation  report124  of  the  Programme,  which  will  be  audited  by  the  Supreme  Audit 
Office  in  2021,  sets  out  the  progress  achieved  in  2020.  As  part  of  the  programme 
implementation, two sets of anti-corruption guidelines were published in the course of 2020 
to  standardise  and  unify  the  anti-corruption  rules  applicable  to  ministries  and  local 
government  administrations125.  Doubts  exist  as to  the  implementation  of  the  key  legislative 
tasks described in the Programme, in particular with regards to the continuation of the Act on 
Transparency  of  Public  Life,  the  publication  of  the  draft  law  newly  regulating  asset 
declarations,  and  on  lobbying126.  High-risk  sectors  for  corruption  are  specified  in  the 
Programme and include the defence, energy and construction sector, healthcare, environment, 
and public administration, as well as public procurement127. The budget for the Central Anti-
Corruption  Bureau  increased128,  but  the  activities  of  the  Programme  still  need  to  be 
specifically budgeted for129.  

The Polish Criminal Code broadly criminalises corruption. The key offence penalised by 
the Criminal Code is bribery of public officials130 in its passive (accepting a bribe) and active 

120  The Eurobarometer data on corruption perception and experience of citizens and businesses as reported last 
year is updated every second year. The latest data set is the Special Eurobarometer 502 (2020) and the Flash 
Eurobarometer 482 (2019). 

121  Input from Poland for the 2021 Rule of Law Report, p. 25. 
122  The  resolution  No.  207  of  19  December  2017  of  the  Council  of  Minister  –  the  Governmental  Anti-
Corruption  Programme  for  years  2018-2020.  The  main  objective  of  the  Programme  was  to  reduce  and  to 
raise  awareness  about  corruption  with  the  specific  goals  of  (i)  strengthening  preventive  and  educational 
activities,  (ii)  improving  the  monitoring  of  corruption  risks  and  anti-corruption  regulation,  and  (iii) 
enhancing  the  cooperation  and  coordination  between  law  enforcement  authorities  at  national  and 
international level. 

123  The plan for the implementation of tasks and actions of the Governmental Anti-Corruption Programme for 

years 2018-2020.  

124  Ibid. 
125  Both, the  ‘Guidelines on how to prepare and implement an effective  compliance programme in the public 
sector’  and  the  ‘Anti-corruption  guidelines  for  the  public  administration  on  uniform  institutional 
arrangements and rules of conduct for officials and persons entrusted with top executive functions’ (PTEF) 
aim  at  standardising  and  at  unifying  the  rules  across  the  ministries  and  local  government  administrations, 
according to Polish Government, Input from Poland for the 2021 Rule of Law Report, p. 20. 

126  Information received in the context of the country visit to Poland. Reportedly, the analysis of the Minister of 

Internal Affairs and Administration on the lobbying regulation is still ongoing since October 2018. 

127  Input from Poland for the 2021 Rule of Law Report, p. 25. 
128  Input  from  Poland  for  the  2021  Rule  of  Law  Report,  p.  25:  the  budget  allocated  to  the  Central  Anti-
Corruption  Bureau  amounts  to  approximately  EUR  49  million  (PLN  221  million)  in  2021,  compared  to 
approximately EUR 47 million (PLN 213 million) in 2020. 

129  Information received in the context of the country visit to Poland. 
130  The term ‘person holding a public position’ as defined by law has a broad scope, including among others the 
President of the Republic of Poland, members of Parliament, judges, notaries, officers of a public authority, 
members of local authorities, etc. 

16 

 
 
                                                                                                                                                        
(offering a bribe) forms131. In order to tackle collusion between the giver and the recipient of 
a bribe, the Criminal Code allows the perpetrators of bribery to avoid legal sanctions if they 
notify  the  responsible  authorities  about  the  crime  and  disclose  all  circumstances  before  the 
authorities  learn  about  it.  The  OECD  has  called  on  Poland  to  remove  this  provision,  as  it 
leads  to  impunity132.  Deficiencies  have  also  been  highlighted  with  regard  to  the  effective 
enforcement to tackle bribery abroad133. A private company can only be held criminally liable 
for  foreign  bribery  after  the  individual  who  committed  the  bribe  was  convicted  in  the  final 
instance. The level of sanctions are not considered effective, proportionate or dissuasive134.  

Concerns  exist  as  regards  the  effectiveness  of  the  fight  against  high-level  corruption. 
The  police  initiated  2 544  corruption-related  investigations  in  2020  (compared  to  3  129  in 
2019)135. Since 2006, there is a steady decline in police investigations into corruption (from 
6 388  police  investigations  in  2006  to  2 544  in  2020)136.  The  2020  report  of  the  Supreme 
Audit Office notes overall a considerable decline in corruption risk across areas that concern 
the  functioning  of  the  state,  as  for  instance  in  the  tax  administration,  emphasising  however 
serious  corruption  risks  relating  to  the  use  of  advisory  and  expert  services  by  public 
institutions137. Petty corruption has further declined138. Regarding high-level corruption cases, 
concerns exist as to rising institutionalised corruption, immunities and impunity caused by a 
disparity in the treatment of corruption cases for political purposes139. In this context, the fact 

131  GRECO confirms that the legislation in place broadly complies with the Council of Europe’s Criminal Law 
Convention  on  Corruption  (ETS  173)  and  its  Additional  Protocol  (ETS  191),  GRECO  -  Third  Round 
Evaluation Report.  

132  OECD, Poland: Follow-Up to the Phase 3 Report & Recommendations (2015), p. 4. Cf. also OECD, Poland 

must make urgent legislative reforms to combat foreign bribery (2018). 

133  In the period between 2016-2019, Poland opened at least three investigations into foreign bribery, initiated 
no  prosecution  and  concluded  no  case  with  sanctions,  according  to  Transparency  International,  Exporting 
Corruption (2020), p. 96, with further reference to cases. 

134  OECD,  Poland  should  urgently  implement  reforms  to  boost  the  fight  against  foreign  bribery  and  preserve 

independence of prosecutors and judges (2020). 

135  Police statistics on corruption investigations for the years 2011-2020 are available online. 
136  Notably,  the  number  of  detected  corruption  offences  fluctuated  significantly  during  the  same  period  in 
question and increased markedly compared to 2006 (6 378 in 2006, 8 015 in 2020). According to the Polish 
authorities,  fewer  investigations  with  more  detections  may  be  due  to  a  variety  of  reasons,  such  as  the 
prosecution  of  more  acts  in  a  single  investigation  as  a  result  of  the  specific  nature  of  those  acts  or  of  a 
change  in  the  organisation  of  proceedings  within  the  police.  Also  other  individual  law  enforcement 
authorities publish corruption-related data, such as the Central Anti-Corruption Bureau and the Ministry of 
Justice that publishes annual statistics on final convictions with information about the legal classification of 
charges and penalties imposed, available on the website of the Statistical Office. 

137  Input  received  from  Poland  for  the  2021  Rule  of  Law  Report,  p.  21.  Supreme  Audit  Office, 
https://www.nik.gov.pl/plik/id,23307,vp,26017.pdf. In its 2020 report, the Supreme Audit Office noted that 
there are still institutions in which no anti-corruption mechanisms have been implemented. Further, external 
services  can  easily  be  used  to  obtain  illegal  private  benefits  at  the  expense  of  public  property,  see  the 
summary of the 2020 report as published by the Supreme Audit Office on 21 December 2020. In May 2021, 
the Supreme Audit Office issued a report concerning the organisation of the postal presidential elections in 
2020,  considering  that  it  has  been  carried  out  in  violation  of  applicable  legislation.  In  that  context,  the 
Supreme  Audit  Office  also informed on 25 May 2021 that it has notified the prosecution services about a 
possible violation of law. See also section IV below. 

138  Information received in the context of the country visit to Poland. 
139  Information received in the context of the  country  visit to  Poland. See also Part I. Cf, also GRECO, Fifth 
Evaluation  Round  –  Draft  Compliance  Report  –  Poland (2021),  paras.  54-63;  and  GRECO,  5th  Evaluation 
Round  – Evaluation  Report Poland (2019), paras. 82-91, reiterating its recommendation  that, in respect of 
persons exercising top executive  functions, an in-depth reform of the system of immunities be  carried out 
with  a  view  to  facilitating  the  prosecution  of  corruption  offences  by  excluding  these  from  the  scope  of 
immunities and by ensuring that the procedure  for the lifting of the immunity is transparent and based on 

17 

 
 
                                                 
 
that  the  Minister  of  Justice  functions  at  the  same  time  as  Prosecutor-General  adds  to  other 
concerns  that  have  also  been  raised  over  the  independence  of  the  Central  Anti-Corruption 
Bureau from  the  executive power140. The increase in supervising  powers of  the Prosecutor-
General  who  can  take  over  cases  by  his  subordinate  prosecutors  provides  avenues  to 
influence anti-corruption prosecutions politically141. 

The  cooperation  in  practice  between  the  relevant  institutions  to  fight  corruption  in 
Poland  at  times  faces  some  legal  and  organisational  constraints.  In  particular,  the 
restrictions to  access  financial data present  an obstacle for the detection and prosecution of 
corruption142. According to the government, the resources and the level of specialisation and 
digitalisation of the services involved are also not always sufficient to carry out their tasks in 
repressing  corruption  effectively.  This  concern  relates  specifically  to  the  shortage  of  anti-
corruption  staff,  insufficient  technological  resources  and  capacities,  and  effective  evidence 
gathering  to  meet  the  standards  of  proof,  which  have  prolonged  procedures  and  obstructed 
official duties especially during the COVID-19 pandemic143.  

A  practical  guide  on  conflicts  of  interest  for  public  officials  accompanies  the  relevant 
lobbying  legislation.  A  guide  entitled  ‘Conflict  of  Interest  –  What  is  it  and  how  to  avoid 
it?’144  is  for  Government  employees  to  assist  them  in  the  practical  implementation  of  the 
rules laid down in the Law on Lobbying Activity in the Law-Making Process145. In 2020, the 
Central Anti-Corruption Bureau examined 2 353 conflict of interest issues in the Ministry of 
Health  and  the  Ministry  of  National  Defence  (compared  to  2 477  in  2019),  covering  1 949 
persons  (compared  to  2 187  in  2019)  with  no  reported  cases  referred  to  the  Prosecutor’s 
office146.  There  are  three  lobby  registers  in  place,  one  for  the  Government  (based  on  the 
lobbying  act),  one  for  the  lower  chamber  of  the  Parliament  (Sejm),  and  one  covering  its 
higher  chamber  (Senate)147.  The  Minister  of  Internal  Affairs  and  Administration  is  the 
supervisory  body  over  lobby  activities  vis-à-vis  the  government148.  For  lobbying  activities 
towards  parliamentarians,  the  two  chambers  of  the  Parliament  (Sejm  and  Senate)  have 
supervisory tasks149. Concerns exist as to the effectiveness of the registers. Reportedly, only 

objective  and  fair  criteria  used  effectively  in  practice  (see  para.  87).  Moreover,  GRECO  reiterates  also  its 
concern  regarding  the  increased  influence  of  the  executive  branch  of  power  over  the  judiciary,  the 
prosecution  and  police  with  the  entire  chain  of  criminal  proceedings  being  exposed  to  risks  of  political 
interference, undermining the effectiveness of anti-corruption efforts in respect of persons in top executive 
functions (see para. 91).  

140  As reported in the 2020 Rule of Law Report, country chapter on the rule of law situation in Poland, p. 11 and 

above in section I. GRECO Fifth Evaluation Round – Evaluation report, para. 78. 

141  Information  received  in  the  context  of  the  country  visit  to  Poland.  See  also  above  in  section  I.  For  more 
information,  see  2020  Rule  of  Law  Report  2020,  country  chapter  on  the  rule  of  law  situation  in  Poland, 
p. 11. 

142  Input  from  Poland  for  the  2021  Rule  of  Law  Report,  p.  26,  noting  also  immunities  of  parliamentarians, 

prosecutors and judges as a challenge. 

143  Input from Poland for the 2021 Rule of Law Report, p. 26. 
144  Input received from Poland for the 2021 Rule of Law Report, p. 21. The guide is available online. 
145  The  Law  of  7  July  2005  on  Lobbying  in  the  law-making  process  was  one  of  Europe’s  first  lobbying 
regulation.  It  defines  lobbying,  establishes  a  public  register  and  determines  obligations  and  sanctions  for 
unregistered lobbyists.  

146  Central Anti-Corruption Bureau, Information about business results in 2020, p. 37. 
147  While  the  two  separate  parliamentary  registers  require  lobbyists  to  provide  information  about  the  entities 
they  represent  as  well  as  their  specific  interests,  the  information  contained  in  the  government  register  is 
limited to personal data. 

148  Law of 7 June 2005 on lobbying activities in the law-making process.  
149  See above, Law of 7 June 2005 on lobbying activities in the law-making process. 

18 

 
 
                                                                                                                                                        
one interest representative participated in a single parliamentary committee session in 2020, 
while  a  total  of  508  entities  are  registered  in  the  registry  of  the  Parliament’s  lower 
chamber150. Overall, the number of lobbyists registering continues to decline, oversight is not 
systematic and no information exists on whether sanctions have been applied to unregistered 
lobbyists151.  Post-employment  (‘revolving  doors’)  rules  are  applicable  only  to  top-level 
officials  (excluding  members  of  the  parliament)  and  limited  to  entities  for  whom  a  public 
official issued specific decisions152. 

Technical work towards a standardised asset declaration system has been undertaken. 
The  level  of  digitalisation  of  politicians’  asset  declarations  is  low  and  a  centralised 
submission and monitoring system is lacking153. Most declarations are still filled out by hand, 
with various declaration forms being in use154. The scope of data to disclose is similar but not 
identical  for  every  obliged  public  official.  In  2020,  the  Central  Anti-Corruption  Bureau 
carried  out  81  asset  declaration  controls  (compared  to  90  in  2019),  of  which  45  concerned 
suspected  crime155,  and  385  pre-control  analyses  concerning  asset  declarations  and 
compliance  with  anti-corruption  provisions156  (compared  to  364  in  2019).  In  two  cases, 
material was provided for pending proceedings and, in two additional cases, the Prosecutor’s 
Office was provided with findings of the Central Anti-Corruption Bureau’s inspections.  

A  dedicated  government  hotline  exists  for  whistleblowers  to  report  corruption  and 
corruption-related  crimes.  The  Central  Anti-Corruption  Bureau  can  receive  open  and 
anonymous  reports  by  citizens157.  Until  amendments  are  introduced  to  the  current 
whistleblower provisions provided for in different legal acts, the calls to strengthen protection 
of reporting persons remain valid158. 

Exemptions  to  public  procurement  rules  introduced  during  the  COVID-19  pandemic 
have  raised  concerns  about  possible  corruption  risks.  This  relates  in  particular  to  the 
exemption  from  criminal  and  disciplinary  liability  of  officials  who  manage  public  funds  or 
purchase  equipment,  services  and  other  resources  to  fight  the  COVID-19  pandemic159. 

150  Input received from Poland for the 2021 EU Rule of Law Report, p. 23. Reports might be found on the Sejm 
and Senate official website. Some information has also been published by the Frank Bold Foundation on a 
website devoted to lobbying transparency https://jawnylobbing.org. 

151  Information received in the context of the country visit to Poland. 
152  GRECO, Fifth Evaluation Round – Evaluation report, recommendation viii and para. 65. 
153  GRECO Fifth Evaluation Round – Evaluation report, recommendations x and xi, paras. 72 and 78. 
154  It is reported that there at least 16 different forms are in use, while no unified legislation exists. In addition, 
most declarations are published in pdf-format, which presents an obstacle for the monitoring and analyses. 
Provisions  on  asset  declarations  are  scattered  among  several  acts,  including  among  others:  the  Act  on  the 
Exercise of the Mandate of a Deputy and Senator; the Act on Restrictions on Conduct of Business Activities 
by Persons Performing Public Functions covering especially top-level public officials and civil servants; the 
Act  on  the  status  of  judges  of  the  Constitutional  Tribunal;  the  Prosecution  Service  Law  Act;  local 
government  acts  covering  public  officials  and  councilmen;  and  acts  specific  to  certain  services,  such  as 
police, fire fighters, etc. Cf. also 2020 Rule of Law Report, country chapter on the rule of law situation in 
Poland – Part I. 

155  Central Anti-Corruption Bureau, Information about business results in 2020, pp. 19-20. 
156  Central Anti-Corruption Bureau, Information about business results in 2020, p. 24. 
157  Input received from Poland for the 2021 Rule of Law Report,  p. 24. No data  was submitted regarding the 

effectiveness and use of the hotline. 

158  United Nations Convention (2015), Implementation Review Group (cycle 1) and OECD Poland: Follow up 

to the Phase 3 Report and Recommendations.  

159  The  Law  amending  the  Law  of  31  March  2020  on  Specific  Measures  to  Prevent,  Counteract  and  Combat 

COVID-19 and Other Contagious Diseases and Associated Crisis Situations and Certain Other Laws. 

19 

 
 
                                                 
However, a new Public Procurement Law also entered into force in the beginning of 2021160, 
which  anti-corruption  stakeholders  largely  valued  as  good  practice  going  into  the  right 
direction161.  The  Central  Anti-Corruption  Bureau  is  in  charge  of  anti-corruption  related 
aspects of the Government Anti-Crisis Shield providing financial support to micro, small and 
medium-size and large enterprises to combat the effects of the COVID-19 pandemic. 

III.  MEDIA PLURALISM AND MEDIA FREEDOM 

Journalists’  protection  is  based  on  Constitutional  principles  and  specified  in  sectorial 
legislation. The Broadcasting Act and the Press Law provide, respectively, a legal framework 
for  the  media  regulator  -  the  National  Broadcasting  Council  (KRRiT)  and  safeguards  for 
journalistic independence. The Broadcasting Act is expected to be amended as a result of the 
ongoing transposition of the revised Audiovisual Media Services Directive162.  

The  upcoming  changes  in  the  legal  framework  will  aim  to  strengthen  the  statutory 
safeguards  for  the  independence  of  the  media  regulator.  According  to  the  Constitution, 
the  members  of  the  National  Broadcasting  Council  (KRRiT)  are  appointed  by  the  Sejm, 
Senate,  and  the  President  of  the  Republic.  They  may  not  belong  to  a  political  party,  trade 
union or perform public activities incompatible with their function. Poland is still working on 
the  transposition  of  the  revised  Audiovisual  Media  Services  Directive  (AVMSD)163. 
According to the Polish authorities, the upcoming amendments of the Law on Broadcasting 
are expected to make the procedure for dismissing KRRiT members more rigid164. Currently, 
the  rejection  of  the  annual  report  of  the  KRRiT  by  the  Sejm  and  the  Senate  results  in  the 
automatic expiry of the mandate of all its members (Article 12 of the Broadcating Act). The 
new  act  will  introduce  additional  formal  requirements  for  this  rejection  procedure.  In 
particular, it will require the President of the Republic to  confirm  the expiry of the KRRiT 
members’ term of office, following a negative vote by the Sejm and of the Senate. Both the 
resolutions of the Sejm and of the Senate, as well as any confirmation by the President, will 
need to be reasoned. Also, the list of responsibilities of the media regulator will be widened 
to  align  it  with  the  revised  AVMSD.  Neither  the  KRRiT  nor  the  National  Media  Council 
(RMN)165  -  the  public  service  media  governing  body  -  deals  with  the  public  service  media 
news programmes. This was raised as problematic in the context of the coverage of the 2020 

160  The law of 11 September 2019 – the Law on Public Tenders, effectiveness of which remains to be seen in 

practice, due to its recent entry into force. 

161  Information received in the context of the country visit to Poland. 
162  Poland ranks 64th in the Reporters Without Borders 2021 World Press Freedom Index (23rd among the EU 
Member States),  down two places  from the 62nd  position in 2020. Between 2015 and 2020 Poland fell 46 
positions in the Word Press Freedom Index. 

163  Directive  (EU)  2018/1808  amending  Directive  2010/13/EU  on  the  coordination  of  certain  provisions  laid 
down by law, regulation or administrative action in Member States concerning the provision of audiovisual 
media services (Audiovisual Media Services Directive) in view of changing market realities. 

164  In  accordance  with  Article  7(6)  of  the  Law  of  29  December  1992  on  television  and  radio  broadcasting, 
members of the  KRRiT may  be removed  from office  by the  respective appointing authority in case of the 
member  concerned  resigns,  suffers  from  an  illness  baring  him  or  her  from  exercising  the  office,  is  found 
guilty  of  a  criminal  offence  prosecutable  by  a  public  indictment,  submits  a  lustration  declaration  that  has 
been found false by the court, is found by the Tribunal of State to have violated law.  

165  In  2016,  some  of  the  competences  of  KRRiT  were  tranfered  to  the  newly  established  National  Media 
Council (RMN), which is now in charge of appointing and removing management and supervisory boards of 
the  Polish  Television  (TVP),  Polish  Radio  and  Polish  Press  Agency.  In  December  2016,  the  Polish 
Constitutional Tribunal considered the exclusion of KRRiT from the process of appointment of  the public 
media’s  management as unconstitutional. The judgment remains to be implemented. There  are no specific 
conflict-of-interest rules as regards the membership of active politicians in the Public Service Media boards. 

20 

 
 
                                                 
presidential  campaign166.  However,  the  KRRiT  cooperates  with  the  Public  Discourse 
Monitoring  Centre,  which  provides  reports  on  the  radio  and  TV  appearances  of  politicians 
and experts, in particular in stations and journalistic programmes167. 

Recent  developments  on  the  Polish  media  market  risk  reducing  media  pluralism. 
Concerns  have  been  raised  regarding  plans  for  legislative  changes168  allowing  not  to  grant 
broadcasting concessions to  operators directly or indirectly controlled by  persons registered 
outside  the  EEA169.  Stakeholders  have  already  raised  concerns  about  the  future  of  TVN24 
channel170 whose license has not yet been renewed since the application was filed in February 
2020171.  The  potential  acquisition  of  the  German-owned  Polska  Press172  by  the  state-
controlled  oil  company  PKN  Orlen  has  also  raised  concerns  as  a  potential  threat  to  media 
market  pluralism173.  The  transaction  was  approved  by  Poland’s  competition  authority 
(UOKiK).  The  approval  was  subsequently  challenged  by  the  Polish  Ombudsperson,  who 
argued that the transaction should be reversed as it threatens the press freedom. Pending the 
examination  of  the  Ombudsperson’s  appeal  on  merits174,  the  Court  of  Competition  and 
Consumer Protection ordered interim relief temporarily suspending the UOKiK’s decision175. 
The  competition  authority  has  three  months  to  submit  its  appeal.  PKN  Orlen  declared, 

166  See OSCE-ODIHR  Final Report on the Presidential Election held in Poland on 28 June and 12 July 2020 
(Special Election Assessment Mission) as well as the 2020 Rule of Law Report: country chapter for Poland.  
167  The Public Discourse Monitoring Centre is an academic project, run by the Nicolas Copernicus University, 
aimed at providing systematic characteristics of journalistic radio and TV programs, including the analysis 
of  which  politicians  are  invited  as  guests  to  the  most  important  journalistic  programs  on  radio  and  TV 
stations with the broadest range. 

168  Draft law No. 1389 amending the law on the radio and television broadcasting, submitted to the Sejm on 7 

July 2021. 

169  Another recent legislative proposal concerned a new levy on advertising revenues that would apply to a large 
array  of  media  companies.  Representatives  of  private  media  claimed  that  the  new  bill  would  particularly 
affect leading domestic news  media groups. The  proposal prompted an unprecedented, coordinated protest 
by the majority of private media on 10 February 2021.  While the Government has not proceeded with the 
legislative discussions on the proposal in its original  form,  according to the recent press  reports the ruling 
party has not abandoned the idea of proposing such a levy. See: Money.pl, ‘Podatek od mediów wróci? GW: 
Kaczyński chce go w Nowym Ładzie’ of 30 April 2021. 

170  Owned by TVN group, which is owned by U.S. company Discovery.  
171  Under  the  Polish  Broadcasting  Act,  the  applicant  has  to  submit  a  request  no  later  than  12  months  before 
expiry of the current licence. The Broadcasting Act does not specify a time limit for the media regulator with 
regard to issuing its decision. One should assume that the national media regulator (KRRiT) should issue its 
decision regarding a new broadcasting licence before the expiry of the current license. The TVN24’s licence 
expires on 26 September 2021. 

172  Polska Press owns 20 out of 24 regional newspapers, 120 local weeklies and 500 online portals across the 
country.  According  to  the  alert  published  on  the  Council  of  Europe  platform  to  promote  the  protection  of 
journalism  and  safety  of  journalists,  the  transaction  has  dismayed  many  actors  of  Poland’s  independent 
media  who  see  this  as  a  first  step  in  bringing  the  sector  under  government  control.  Some  media  have 
however described this purchase as an opportunity to break  the foreign domination of the regional press. 
The Association of Polish Journalists has repeatedly pointed to the monopolistic position of foreign capital 
in  the  regional  press  market.  See  to  that  end  Council  of  Europe’s  Platform  to  promote  the  protection  of 
journalism and safety of journalists. 

173  See Media Freedom Rapid Response’s press release of December 2021. 
174  See the press communique of the Ombudsperson of 13 April 2021.  
175  It  should  be  noted  that  the  transaction  was  not  examined  in  the  context  of  its  potential  impact  on  media 
pluralism,  which  would  have  been  outside  the  competence  of  the  Polish  media  regulator  who  is  only  in 
charge of radio and audiovisual broadcasters. In its press release, the UOKiK confirmed being empowered 
only to examine the impact of acquisitions on the market and consumers in terms of competition, but not to 
examine the impact on freedom of speech or media pluralism. See: UOKiK, ‘UOKiK President’s approval’ 
of 5 February 2021.  

21 

 
 
                                                 
however, that it considered the acquisition of shares as completed already before the court’s 
decision176  and  it  proceeded  with  various  managerial  decisions,  including  changes  of 
personnel in the editorial teams of the Polska Press’ newspapers177. According to Reporters 
Without  Borders,  such  decisions  should  be  considered  as  confirmation  that  the  acquisition 
affects the media group’s independence178, and the Ombudsperson stated that the actions of 
PKN Orlen have demonstrated a “blatant disregard” to the Court’s decision. In addition, the 
International  Press  Institute  raised  concerns  that  the  decision  of  the  competition  authority 
could result in weakening media companies perceived as opponents to the ruling party179. 

The media ownership transparency obligations are expected to be strengthened. As part 
of  the  amendments  of  the  Broadcasting  Act  transposing  the  revised  AVMSD,  the  Polish 
authorities  intend  to  expand  the  scope  of  the  transparency  obligations  for  media  service 
providers180. This will include providing the information on beneficial owners by referring to 
the registration in the KRS (National Judicial Register) and the Central Register of Beneficial 
Owners181.  The  amendments  are  expected  to  be  enacted  in  the  third  quarter  of  2021.  The 
2021  Media  Pluralism  Monitor  reported  medium  risk  with  regards  to  the  transparency  of 
media ownership and high risk of news media concentration182. 

State  advertising  appears  to  be  directed  mostly  to  the  media  outlets  considered  as 
government-friendly. Stakeholders report that state authorities and companies owned by the 
State  Treasury  place  their  announcements  and  advertising  spots  only  in  media  considered 
favourable  to  the  Government183.  While  public  media  are  reported  to  be  the  main 
beneficiaries of the state support184, a recent study confirmed the growing share of the pro-
Government  private  media185.  The 
that 
instrumentalisation  of  public  advertising  affects  negatively  the  market  dynamics  and  could 

Institute  has  warned 

International  Press 

176  See: EURACTIV.com, Poland’s PKN Orlen says media takeover unchanged by court decisions’ of 14 April 

2021. 

177  As reported by the media on 30 April 2021, chief editors of the four largest regional journals were dismissed 
from their function and substituted by persons reported by the media of having close ties with the governing 
coalition (see Gazeta Wyborcza ‘Czystka w Polska Press’ of 30 April 2021). 

178  Reporters Without Borders, With firing of four editors, “repolonisation” under way in Poland” of 10 May 

2021. 

179  When in January 2021, the competition authority blocked the acquisition of the radio broadcaster Eurozet by 
Agora (owner of the independent newspaper “Gazeta Wyborcza”), the latter claimed that the decision was 
being  influenced  by  representatives  of  the  ruling  party.  According  to  Agora  the  negative  decision  of  the 
competition authority was “arbitrary and selective” and it “protects Agora’s competitors, not competition”. 
See:  Alert  registered  at  the  Mapping  Media  Freedom  platform  and  the  Media  Freedom  Rapid  Response 
‘Democracy  declining:  Erosion  of  Media  Freedom  in  Poland’  MFRR  Press  Freedom  Mission  to  Poland 
(November-December 2020) mission report. 

180  Written contribution received in the context of the country visit to Poland. 
181  Information from the Country visit from the public authorities. The Register is available online and can be 

consulted under the following address: https://www.gov.pl/web/mswia/dzialalnosc-lobbingowa.  

182  2021 Media Pluralism Monitor, country report for Poland, p. 12. 
183  Media Freedom Rapid Response ‘Democracy declining: Erosion of Media Freedom in Poland’ MFRR Press 

Freedom Mission to Poland (November-December 2020) mission report. 

184  2021 Media Pluralism Monitor, country report for Poland, p. 14. Also see: Politico ‘Polish media suspend 

reporting to protest planned tax on advertising’ of 10 February 2021. 

185  T.  Kowalski  ‘Analiza  wydatków  reklamowych  spółek  skarbu  Państwa  (SSP)  w  latach  2015-2019  (na 
podstawie monitoringu firmy Kantar Media)’ – pre-print of March 2020; see also media reports based on the 
above analysis: Press.pl ‘Spółki Skarbu Państwa wydały na reklamę mniej, niż rok wcześniej’ of 18 February 
2021 and Antyweb.pl ‘Raport UW: Spółki Skarbu Państwa reklamują się głównie w mediach sprzyjających 
władzy’ of 17 February 2021.  

22 

 
 
                                                 
lead  to  a  deterioration  in  journalistic  standards.186  Similarly,  the  2021  Media  Pluralism 
Monitor  pointed  out  that  certain  forms  of  state  support,  including  grants,  loans  or  state 
advertising remain fragmented and non-transparent187.  

In  addition,  in  March  2020,  in  response  to  the  COVID-19  pandemic,  the  Government 
activated  a  horizontal  COVID-19  “Anti-crisis  shield”  offering  various  measures  of 
support  (both  financial  and  legislative)  for  all  companies188.  The  2021  Media  Pluralism 
Monitor  reports  that  not  all  media  groups  applied  for  funds  to  cover  employees’  salaries 
during the lockdowns189. Within the framework of the “Anti-crisis shield”, the Government 
introduced an additional levy on local  revenues  of video-on-demand platforms  operating in 
Poland190. According to the representatives of the Government, the new levy was introduced 
in  order  to  compensate  the  financial  losses  of  cinemas  and  support  the  Polish  Film 
Institute191.  

The  Polish  legal  framework  recognises  the  right  of  access  to  public  information, 
however  proliferating  limitations  inhibit  its  implementation  in  practice.  Stakeholders 
report cases of limiting access to information without explanation, cancellation or denying of 
journalists’  accreditation192  or  blocking  entry  to  certain  events193.  Exercising  the  right  of 
access  to  public  information  risks  being  further  limited  as  a  result  of  the  ongoing 
constitutional  challenge194. The  International  Press  Institute points out that the situation has 
deteriorated during the COVID-19 pandemic195. Similarly, the 2021 Media Pluralism Monitor 
reports  that  the  legal  provisions  adopted  as  a  part  of  the  COVID-19  “Anti-crisis  shield”, 
enabled the authorities to suspend deadlines stipulated by administrative law, thereby limiting 
or delaying access to public information196. Consequently, the 2021 Media Pluralism Monitor 
notes higher risks in relation to the access to information in Poland in comparison to the last 
year’s edition197. 

The  professional  environment  for  journalists  is  deteriorating  in  Poland.  While  the 
safeguards  of  journalistic  independence  are  included  in  the  Broadcasting  Act  and  the  Press 

186  See MFFR mission report as referred to above. 
187  2021 Media Pluralism Monitor, country report for Poland, p. 14. 
188  The 2020 Act of 14 May 2020 amending certain acts in the field of protective measures in connection with 

the spread of the SARS-CoV-2 virus. 

189  2021 Media Pluralism Monitor, country report for Poland, p. 14. 
190  See Infor.pl, ‘Wpłaty na rzecz polskiej kinematografii (tzw. podatek od seriali) od 1 lipca 2020 r.’ of 22 May 

2020. 

191  Some stakeholders raised concerns with regard to the method of the calculation of the financial contribution. 

See Lexology.com (2020), ‘Poland to introduce “Netflix tax” to support local filmmakers.’ 

192  See an alert registered on the Mapping Media Freedom platform.  
193  As confirmed by the MFFR mission report as referred to above. 
194  On 16 February 2021, the newly appointed First President of  the Supreme Court lodged a request with the 
Constitutional Tribunal asking it to declare, in essence, the unconstitutionality of provisions governing the 
access  to  documents  in  so  far  as  these  broaden  ‘in  illegitimate  way’  the  definition  of  entities  obliged  to 
disclose  public information and allow for a too broad disclosure of the data  requested.  See in that context 
information provided under Part I of the present Chapter and case K 1/21 pending before the Constitutional 
Tribunal. 

195  See MFFR mission report as referred to above. 
196  2021 Media Pluralism Monitor, country report for Poland, p. 10. 
197  Ibid. 

23 

 
 
                                                 
Law,198 the provisions aimed at limiting political control over media outlets are missing (for 
instance,  limits  on  control  of  media  by  politicians)199.  As  a  result  of  political  interference 
(both  in  private  and  public  media),  there  were  cases  where  journalists  decided  to  establish 
new media outlets online, relying on crowdfunding business models200. The violent actions of 
the police forces during protests and demonstrations affected also journalists reporting from 
such events201. The 2021 World Press Freedom Index reported that Polish police force have 
repeatedly failed to protect journalists during protests and instead used violence and arbitrary 
arrests202.  During  the  lockdown  period,  journalists  were  qualified  as  one  of  the  privileged 
professional groups allowed to stay in a hotel during work-related travel203. The news media 
community has observed an increase in lawsuits against journalists with intimidating effects 
warning letters addressed to journalists and newsrooms  in order to postpone or stop critical 
reporting concerning companies or public institutions204. Such a trend appears to particularly 
affect smaller news outlets and freelancers that are at high risk of self-censorship due to the 
fear  of  legal  consequences205.  While  the  majority  of  such  lawsuits  tend  to  be  unsuccessful, 
they  are  reported  to  be  still  widely  used  to  harass  Government  critics206.  The  Council  of 
Europe platform to promote the protection of journalism and safety of journalists registered 
10 alerts concerning Poland in 2020, and two in 2021207. The nature of the alerts confirms the 
trend  of  using  intimidating  legal  actions  against  journalists.  The  2021  Media  Pluralism 
Monitor  assesses  the  risks  related  to  the  journalistic  profession,  standards  and  protection  at 
medium level. 

IV. OTHER INSTITUTIONAL ISSUES RELATED TO CHECKS AND BALANCES 

Poland is a representative democratic republic with a directly elected President, a bicameral 
Parliament208  and  a  Constitutional  Tribunal  in  charge  of  constitutional  review  of  laws.  The 
Sejm  has  the  final  decision-making  power  when  adopting  laws.  The  President  of  the 
Republic, the Senate, a group of 15 deputies, the Council of Ministers and a group of at least 
100 000 citizens have the right to propose new legislation. The independent Ombudsperson is 

198  In particular, the Article 10(2) of the Press Law of 26 January 1984 stipulates that a journalist has the right 
to reject an instruction from his or her superior if he or she is expected to publish a text that contradicts the 
principles of fairness, objectivity and professional accuracy. 

199 The 2021 Media Pluralism Monitor reported high risk with regards to the political independence of media. 

See: 2021 Media Pluralism Monitor, country report for Poland, p. 13. 

200  See OSCE-ODIHR  Final Report on the Presidential Election held in Poland on 28 June and 12 July 2020 
(Special Election Assessment Mission), Reporters without Borders’s information on the  ‘repolonisation’ of 
the Polish media market (‘<Repolonising> means censoring’). 

201  For  instance  attacks  during  protests  of  11  November  2021  led  to  numerous  injuries,  with  the  most  severe 
case of the hospitalization of a 74-year-old photographer who was shot in the face with a rubber bullet. See: 
Committee  to  Protect  Journalists,  ‘Polish  riot  police  attack  journalists  covering  demonstrations’  of  16 
November 2020. 

202  See: 2021 World Press Freedom Index  
203  See:  Regulation  of  the  Council  of  Ministers  of  22  January  2021  amending  the  regulation  concerning  the 
imposition of specific limitations, obligations and prohibitions due to the existence of the state of epidemics. 
204  The  International  Press  Institute  Reports  that  many  lawsuits  are  initiated  by  government  agencies,  state 
bodies or ruling party politicians, and are aimed at weakening newspapers’ financial resources. See: MFFR 
mission report as referred to above. According to the representative of journalists, such intimidation method 
are also often used by large business corporations. See: Press.pl ‘Postraszyć redaktora’ of 21 August 2020.  

205  See MFFR mission report as referred to above. 
206  Ibid. 
207  Majority  of  alerts  were  addressed  by  Polish  authorities.  See  Council  of  Europe’s  Platform  to  promote  the 

protection of journalism and safety of journalists – information concerning Poland. 

208  The Parliament is composed of the Sejm (the lower chamber) and the Senate (the higher chamber).  

24 

 
 
                                                 
tasked  with  safeguarding  the  freedoms  and  rights  of  persons  and  citizens  specified  in  the 
Constitution and other normative acts. 

The  expedited  adoption  of  legislation  continues  to  be  used  for  significant  structural 
reforms of the judiciary or of other independent authorities209. The recent amendments to 
the  law  on  the  Supreme  Court  were  adopted  in  third  reading  by  the  Sejm  within  24  hours 
from being tabled. It is recalled that ensuring effective public consultations and involvement 
of  social  partners  in  the  policy-making  process  in  Poland  was  one  of  the  country-specific 
recommendations  issued  in  the  context  of  the  2020  European  Semester210.  The  Venice 
Commission  and  OSCE  have  on  several  occasions  underlined  the  importance  of  thorough 
deliberations  of  legislative  proposals  and  amendments,  including  meaningful  consultations 
with  stakeholders,  experts  and  the  civil  society,  and  a  dialogue  with  the  political 
opposition211. 

The state of epidemics introduced by the Government in March 2020 is still in force. On 
20 March 2020, the Minister of Health introduced a country-wide state of epidemics in order 
to  counter  the  effects  of  the  COVID-19  pandemic.  The  state  of  epidemics  is  based  on 
statutory legislation212 and allows the Minister of Health and other members of the Council of 
Ministers to  introduce limitations on constitutional  freedoms and impose  obligations on the 
citizens  and  business  owners.  The  state  of  epidemics  has  been  imposed  without  time-
limitation and will remain in place as long as the Health Minister does not revoke it by means 
of an ordinance. The state of epidemics and the measures it allows to be introduced through 
governmental ordinances have raised questions as to their constitutionality213, with reference 
to the fact that the Polish constitution explicitly provides that any curtailment of fundamental 
rights and freedoms can be imposed only under the state of emergency214. That position has 
also  been taken by courts seized in  individual cases concerning the imposition  of sanctions 
due to violations of anti-COVID measures215. 

209  On 8 March 2021, the Commission sent a reasoned opinion to Poland for breaching EU law safeguarding the 
independence  of  the  national  regulatory  authority  (NRA),  a  key  principle  of  the  EU's  telecommunications 
legislation.  More  specifically,  the  legal  provisions  amending  the  Polish  Telecommunications  Law  that 
resulted in the early termination of the mandate of the Head of the Polish NRA  – the Office for electronic 
communications,  raise  concern.  See  to  that  end  also  the  2020  Rule  of  Law  Report:  country  chapter  for 
Poland, Part IV.  

210  Council  Recommendation  of  20  July  2020  on  the  2020  National  Reform  Programme  of  Poland  and 
delivering a Council opinion on the 2020 Convergence Programme of Poland, p. 15 (OJ C 282/21); see also 
European  Commission,  Country  Report  Poland  2020,  SWD(2020)  520  final,  p.  6  and  36.  This 
recommendation was also made in previous years. 

211  Venice  Commission’s  opinions  CDL-AD(2020)017,  para.  18;  CDL  AD(2016)026-e,  paras.  21-22;  OSCE-
ODIHR (Urgent Interim Opinion JUD-POL/365/2019[AlC]), para. 30. The practice of using an accelerated 
procedure for adopting laws regulating important aspects of the legal or political order is generally dissuaded 
by bodies such as the Venice Commission (cf. Checklist (CDL-AD(2019)015) para. 75). 

212  See the Law of 2 March 2020 on detailed solutions linked to the prevention of, and counteracting as well as 

preventing COVID-19, other contagious diseases and crisis situations resulting therefrom.  
213  See e.g. an open letter of the Ombudsperson of 4 June 2020 addressed to the Prime Minister 

(VII.565.461.2020.ST). 

214  See to that end Chapter XI of the Polish constitution (Articles 228 – 234). It is noted that the introduction of 
a  state  of  emergency  would  result  in  civil  liability  of  the  state  for  property  losses  resulting  from  the 
limitation of constitutional rights and freedoms (see the Law of 22 November 2020 on the compensation for 
property  losses  resulting  from  the  restriction  of  human  and  civil  freedoms  and  rights  during  a  state  of 
emergency). 
215  See below. 

25 

 
 
                                                 
 
Measures  introduced  in  2020  to  face  the  COVID-19  pandemic  by  the  Government 
continue  to  be  considered  unlawful  by  courts.  Upon  introduction  of  the  state  of 
epidemics216,  stakeholders  have  expressed  concerns  about  the  measures  imposed217  in  that 
context in view of their impact on fundamental rights218. Following the imposition of fines by 
state  authorities  such  as  the  Police  and  the  Sanitary  Inspection  due  to  breaches  of  anti-
COVID  measures,  ordinary  and  administrative  courts  are  reported  to  have  on  a  large  scale 
rejected those fines, considering them inconsistent with the Polish constitution, including as 
regards the prohibition of public gatherings219. A request lodged by the Prime Minister with 
the  Constitutional  Tribunal,  which  is  still  pending,  seeks  to  prevent  the  Polish  State  from 
being obliged to cover damages resulting from anti-COVID measures220. 

216  The state of epidemics is introduced by an ordinance of the Minister of Health acting on the basis of the law 
of 5 December 2008 (amended in 2020) on preventing and combating infections and infectious diseases in 
humans.  Once  introduced,  the  state  of  epidemics  allows  to  decide,  by  means  of  ordinances,  on  imposing 
several limitations and obligations concerning the movement of persons, functioning of businesses etc. See 
Regulation of 20 March 2020 of the Minister of Health concerning the introduction, within the borders of the 
Republic of Poland, of the state of epidemics. The state of epidemics has no pre-fixed duration and can be 
prolonged  by  the  Government.  The  state  of  epidemics,  introduced  on  20  March  2020,  continues  to  be  in 
place. 

217  According to an official statement of the President of the Supreme Audit Office of 28 April 2021, a control 
of the procedure used to organise the postal presidential elections in 2020, ordered by the Prime Minister, 
give rise to constitutional liability of the Prime Minister due to breaches of law committed in that respect. On 
the same day, the Central Anti-Corruption Bureau carried out an ad hoc search of real estate belonging to the 
family of the President of the Office. The President of the Office delivered a public statement considering 
the search to be a retaliation by state bodies against his activities in office. According to the final report by 
the Supreme Audit Office, published on 13 May 2021, the Prime Minister lacked a legal basis to organise 
postal  presidential  elections  and  breached  the  Electoral  Code  by  assuming  competences  that  had  not  been 
assigned  to  him  by  law.  On  28  May  2021,  the  President  of  the  Supreme  Audit  Office  indicated  that  he 
formally notified the prosecution services as regards a possible violation of law by the Prime Minister, the 
Head of the Chancellery of the Prime Minister,  the Minister of Public Assets, and the Minister of Internal 
Affairs. For the impact of the COVID-19 Pandemic on the presidential elections in Poland, see 2020 Rule of 
Law Report, Part I.  

218  Under  the  Constitution,  fundamental  rights  can  be  limited  only  in  case  of  declaration  of  the  state  of 
emergency,  which  has  not  been  declared.  See  e.g.  statements  of  the  Ombudsperson  on  measures 
counteracting  the  COVID-19  pandemic:  https://www.rpo.gov.pl/pl/kategoria-tematyczna/koronawirus-i-
epidemia-w-polsce. 

219  In particular, upon motion of the Ombudsperson, the Supreme Court (in the Criminal Chamber) repealed at 
four occasions rulings of lower courts  which confirmed the  imposition of  fines  for breaching anti-COVID 
measures,  including  because  these  breached  fundamental  rights  and  constitutional  provisions  (See  press 
communiques  of  the  Ombudsperson’s  office  of  15  April  2021  and  19  March  2021.  Some  cases  remain 
pending before the Supreme Court, see press communiques of the Ombudsperson’s office of 22 April 2021, 
7 April 2021, of 19 March 2021, 17 March 2021, 20 April 2021). In that respect, see also Gazeta Wyborcza, 
‘Sądy  lawinowo  uchylają  kary  nakładane  przez  sanepid  za  łamanie  obostrzeń’  of  16  January  2021; 
Bezprawnik.pl,  ‘Sądy  uchylają  mandaty,  a  także  umarzają  postępowania  w  związku  z  nienoszeniem 
maseczek.  A  co  z  karami  administracyjnymi?’  of  11  October  2020.  Prawo.pl,  ‘Rząd  myśli  o  zmianach  w 
prawie, a sądy już uniewinniają osoby bez maseczek’ of 5 August 2020. On 1 July 2021, the Supreme Court 
ruled that the prohibition of gatherings imposed by the Government in the context of COVID-19 pandemic is 
inconsistent with the constitution (case IV KK 238/21). 

220  As  of  January  2021,  Polish  entrepreneurs  started  lodging  group  civil  lawsuits  against  the  Polish  State  to 
cover damages borne due to lockdown restrictions, considering those unconstitutional as they were primarily 
introduced by  means of governmental ordinances. The Prime  Minister, already in  August 2020, seized the 
Constitutional  Tribunal  asking  it,  in  essence,  to  declare  the  unconstitutionality  of  a  provision  of  the  Civil 
Code  that  establishes  the  state  authorities’  civil  liability  for  damages,  to  the  extent  that  this  provision  i.a. 
allows  ordinary  and  administrative  courts  to  declare  the  unconstitutionality  of  a  legal  act  whilst 
circumventing the Constitutional Tribunal (see in that respect also the supportive motion of the Marshal of 

26 

 
 
                                                 
 
The  Supreme  Court  continues  to  review  rulings  of  ordinary  courts  in  certain  cases 
dating back 20 years. Under the new extraordinary appeal procedure, the new Chamber of 
the Extraordinary Control  and Public Affairs is  empowered to  overturn fully or in  part any 
final  judgment  delivered  by  ordinary  courts  in  the  past  20  years,  subject  to  some 
exceptions221. This new extraordinary appeal procedure, based on broad criteria, raises issues 
as  regards  the  principle  of  legal  certainty222  and  is  one  of  the  concerns  raised  by  the 
Commission  in  its  Reasoned  Proposal  adopted  under  the  Article  7(1)  TEU  procedure223. 
According to the information available, most of the proceedings so far have been lodged by 
the Prosecutor General224.  

Civil  society  space  continues  to  be  adversely  affected225.  Poland  has  a  broad  and  vibrant 
civil society, consisting of more than 120 000 different NGOs226. However, the 2020 update 
of the CIVICUS report considers that the civic space for NGOs’ functioning has narrowed227. 
The access to public funding of NGOs remains an issue228. The ruling of the Constitutional 
Tribunal229 of 22 October 2020, leading to a de facto ban on abortion230, sparked nation-wide 

the  Sejm;  case  K  18/20,  currently  pending).  See  also  Gazeta  Prawna,  ‘Przedsiębiorcy  pozywają  Skarb 
Państwa za restrykcje. Pozew grupowy a indywidualny – co wybrać?’ of 19 January 2021 

221  The recent amendments to the Law on the Supreme Court prolong, until 3 April 2023, the transitional period 

in which final judgments of ordinary courts issued since October 1997 can be contested. 
222  Venice Commission opinion of 11 December 2017 (CDL-AD(2017)031), paras. 53-63.  
223  Reasoned Proposal, paras 128-131. 
224  According to data provided by the Supreme Court, in 2020 the Chamber of Extraordinary Control and Public 
Affairs  examined  29  extraordinary  appeals.  As  of  25  February  2021,  the  Ombudsperson  lodged  with  the 
Supreme  Court  46  such  appeals  of  which  6  have  so  far  been  examined  (see  the  press  communique  of  the 
Ombudsperson’s Office of 25 February 2021. See also the Ombudsperson’s opinion to the law amending the 
law on the Supreme Court referred to in Part I of the present Chapter).  

225  PACE report of 6 January 2020; see the 2020 Rule of Law Report: country chapter for Poland, p. 17. 
226  According  to  the  Polish  authorities,  cooperation  between  public  authorities  and  civil  society  organisations 
must  respect  the  principles  of  subsidiarity,  sovereignty  of  the  parties,  partnership,  efficiency,  fairness  of 
competition, transparency, equal treatment and independence. 

227  CIVICUS Monitor – Tracking Civic Space; ratings are on a five-category scale defined as: open, narrowed, 
obstructed,  repressed  and  closed.  The  main  reasons  listed  by  CIVICUS  for  its  assessment  concern  the 
excessive  force  used  by  the  authorities  on  protesters  and  journalists  reporting  on  protests;  continuous 
targeting of LGBTI persons by the government; lawsuits lodged by public authorities against private media 
and other legal instruments adopted to restrict press freedom (see CIVICUS Monitor Watch List  – updated 
18 February 2021).  

228  A National Institute of Freedom – Centre for Civil Society Development is responsible for the distribution of 
government  funding,  as  well  as  nationally  attributed  EU  funding,  to  NGOs.  The  organisations’ 
representatives constitute a minority in the decision-making process under this institute, which is chaired by 
a member of the Government. The OSCE found that the Government appears to have a decisive influence on 
the  governance  and  operation  of  the  National  Institute  of  Freedom  and  made  recommendations  in  that 
respect.  See  also  OSCE-ODHIR,  Guidelines  on  the  Protection  of  Human  Rights  Defenders,  paras  70-73. 
According to the information received from the Polish authorities, in 2020 grant programmes had a budget 
of almost PLN 160 million (c.a. EUR 35,5 million).  

229  It is also noted that 31 July 2020, the Prime Minister, supported by the Prosecutor General, the Sejm, and the 
Minister  of  Foreign  Affairs,  requested  the  Constitutional  Tribunal  to  declare  the  unconstitutionality  of  a 
number of provisions of the  Council of Europe  Convention on preventing and combating  violence against 
women and domestic violence (case K 11/20, currently pending).  

230  The Constitutional Tribunal asserted the unconstitutionality of provisions allowing for an abortion procedure 
carried  out  due  to  the  incurable  status  of  the  foetus,  which  constituted  around  98%  of  cases  of  legally 
performed abortions in Poland. The dissenting opinion attached to the ruling considered that two members 
should not have been part of the hearing bench, one for having as Member of Parliament signed a request 
similar to the one giving rise to the case and the other for having as Member of Parliament voted on such 
motion to be referred to the Constitutional Tribunal. Stakeholders noted that the ruling was issued in breach 
of law as it was delivered in full bench including by judges whose status is disputed (see: Batory Foundation, 

27 

 
 
                                                                                                                                                        
 
protests held amidst the COVID-19 pandemic, with concerns being raised over intimidation, 
violence  and  detention  of  peaceful  protesters231.  Increasing  threats  against  women  activists 
continue  being  reported  allegedly  with  no  apparent  reaction  from  the  public  authorities232. 
The Council of Europe expressed concerns as regards the harassment and intimidation of the 
LGBTI  community  in  Poland,  rendering  the  functioning  of  LGBTI  NGOs  particularly 
difficult,  including  as  regards  the  access  to  funding233.  The  Ombudsperson  challenged  the 
decision of certain regions to declare themselves to be ‘LGBTI ideology-free zones’ before 
the Supreme Administrative Court234. 

The Ombudsperson, due to a ruling of the Constitutional Tribunal, is obliged to end his 
functions  while  a  successor  has  not  been  elected.  Throughout  2020  and  2021,  the 
Ombudsperson has continued to play a key role as a rule of law safeguard235. Pursuant to the 
law  on  the  Ombudsperson  –  who  is  an  equality  body  under  EU  law  –  the  incumbent 
Ombudsperson  remains  in  office,  pending  the  appointment  of  a  new  office-holder.  The 
appointment, made by the Sejm, requires consent of the Senate, where opposition parties hold 
the majority. Following the expiry of the term of office of the Ombudsperson in September 
2020,  which  the  Constitution  prescribes  to  be  of  five  years236,  representatives  of  the 
governing  coalition  seized  the  Constitutional  Tribunal  requesting  it  to  declare  the 
unconstitutionality  of  the  above  statutory  transitional  provision.  On  15  April  2021,  the 
Constitutional Tribunal issued a ruling237 asserting that, if no new Ombudsperson is elected, 
the  outgoing  Ombudsperson  is  to  cease  exercising  core  powers  three  months  after  the 

‘Stanowisko  Zespołu  Ekspertów  Prawnych  w  sprawie  rozstrzygnięcia  Trybunału  Konstytucyjnego 
dotyczącego aborcji’ of 26 October 2020). 

231  On 11 February 2021, the European Parliament adopted a resolution on challenges ahead for women’s rights 
in Europe: more than 25 years after the Beijing Declaration and Platform for Action (2021/2509(RSP)). The 
Committee of Ministers of the Council of Europe called on Poland to adopt clear and effective procedures 
for  women 
Interim  Resolution  of  12  March  2021 
(CoE  CM 
(CM/ResDH(2021)44)). It is to be noted that on 24 February 2021, LIBE and FEMM Committees held joint 
hearing on ‘Attacks on abortion rights and breaches of the Rule of Law in Poland’. 

lawful  abortion 

to  access 

232  CIVICUS statement of 31 March 2021.  
233  See a report on a fact-finding mission to Poland of November 2020 of the Council of Europe’s Congress of 
Local  and  Regional  Authorities  Current  Affairs  Committee  (10  February  2021).  See  also  the  Council  of 
Europe’s Commissioner for Human Rights – Memorandum on the stigmatisation of LGBTI people in Poland 
(3 December 2020).  U.N. High  Commissioner  for Human Rights expressed concerns about the continuing 
repression of LGBTI people and activists, including i.a. restrictions on their freedom of assembly (Statement 
of  UN  High  Commissioner  for  Human  Rights  of  14  September  2020).  Human  Rights  Watch  report:  2020 
developments in Poland. 

234  Press communique of the Ombudsperson’s Office of 29 March 2021.  
235  In  2020,  the  Ombudsperson  received  over  72  thousand  complaints,  including  over  31  thousand  new  cases 
(an  increase  by  20%  with  regard  to  2019)  and  examined  over  36  thousand  cases.  A  major  part  of  the 
complaints  received  concerned  the  anti-COVID  measures  introduced  by  the  government.  In  addition  the 
Ombudsperson regularly intervened on behalf of citizens before public authorities and provided opinions on 
on draft legislation that were often not taken into account by the public authorities. See the Report on 2020 
activities of the Ombudsperson’s office (8 February 2021), State of the rule of law in the European Union  – 
Reports form National Human Rights Institutions 2021 (ENNHRI contribution), pp. 251. 

236  The  Constitutional  Tribunal  considered  it  against  the  Constitution  for  the  Ombudsperson  to  continue 

fulfilling its function beyond the 5-year period prescribed by the Constitution. 

237  The ruling was subject to some controversy. The Ombudsperson reported that the judgment was drafted by a 
judge rapporteur who in his former capacity of member of the governing coalition made open attacks on the 
Ombudsperson, including by accusing him of acting against the Polish government. The Ombudsperson also 
endorsed allegations of unlawful tampering with the hearing bench and considers that certain judges should 
have been recused because of their previous activities. 

28 

 
 
                                                                                                                                                        
publication of the Constitutional Tribunal’s decision238 (i.e. on 16 July 2021). Parliamentary 
proceedings  now  point  to  an  appointment  of  a  new  Ombudsperson  with  cross-party 
support239. In spite of the increased workload, public authorities further restricted the budget 
allocated to the Ombudsperson’s office in 2021, following the trend observed since 2016. 

238  Immediately  thereafter,  ENNHRI  issued  a  statement,  reiterating  that  applicable  international  standards 
continue  to  apply  while  a  new  Head  of  a  National  Human  Rights  Institution  (NHRI)  has  not  yet  been 
selected  and  appointed.  The  independence  and  effectiveness  of  NHRIs  must  be  preserved  at  all  times. 
According to the written motives of the decision, as of 15 July 2021, the Ombudsman whose term of office 
expired in September 2020 can no longer exercise the right to intervene before courts in Poland, including as 
regards representing citizens before courts or join cassation appeals. 

239  Following five unsuccessful attempts, on 9 July 2021, the Sejm appointed a new Ombudsperson. The new 

appointee must still be approved by the Senate. 

29 

 
 
                                                 
Annex I: List of sources in alphabetical order* 

* The list of contributions received in the context of the consultation for the 2021 Rule of Law report 
can  be  found  at  https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-
law/rule-law/rule-law-mechanism/2021-rule-law-report-targeted-stakeholder-consultation. 

Antyweb.pl  ‘Raport  UW:  Spółki  Skarbu  Państwa  reklamują  się  głównie  w  mediach  sprzyjających 
władzy’,  17  February  2021 
(https://antyweb.pl/raport-uw-spolki-skarbu-panstwa-reklamuja-sie-
glownie-w-mediach-sprzyjajacych-wladzy/).  

Batory Foundation, ‘Stanowisko Zespołu Ekspertów Prawnych w sprawie rozstrzygnięcia Trybunału 
Konstytucyjnego 
2020 
(https://www.batory.org.pl/oswiadczenie/stanowisko-zespolu-ekspertow-prawnych-w-sprawie-
rozstrzygniecia-trybunalu-konstytucyjnego-dotyczacego-aborcji/). 

dotyczącego 

aborcji’, 

October 

26 

Bezprawnik.pl,  ‘Sądy  uchylają  mandaty,  a  także  umarzają  postępowania  w  związku  z  nienoszeniem 
maseczek.  A  co  z  karami  administracyjnymi?’,  11  October  2020  (https://bezprawnik.pl/uchylenie-
kary-administracyjnej-za-brak-maseczki/). 

Central  Anti-Corruption  Bureau, 
(https://cba.gov.pl/ftp/dokumenty_pdf/informacja_2020_.pdf). 

Information 

about 

business 

results 

in 

2020 

Centre for Media Pluralism and Media Freedom (2021), Media pluralism monitor 2021. 

Chief Bar Council, Resolution of 12 March 2020  
(http://www.nra.pl/admin/wgrane_dokumenty/uchwala-nr-1552020covid19obiegowo.pdf).  

Chief Bar Council, Statement of 16 October 2020 
dokumenty/dokument/690/?page=1&dataod=2020&datado=2021&organ=15&sort=2).  

 (http://www.nra.pl/szukaj-

Chief Bar Council, Opinion of 12 February 2021  
(https://orka.sejm.gov.pl/Druki9ka.nsf/0/7643D6B48A81923CC125867D00459CA6/%24File/867-
008.pdf).  

Chief Bar Council, Opinion of 9 March 2021 
dokumenty/dokument/699/?page=1&dataod=2020&datado=2021&organ=15&sort=2).  

 (http://www.nra.pl/szukaj-

Civicus, Monitor Tracking Civic Space (https://monitor.civicus.org/). 

Civicus, Monitor Watch List, 18 February 2021 (https://monitor.civicus.org/watch-list/). 

Civicus, Statement of 31 March 2021 (http://www.civicus.org/index.php/media-resources/news/5017-
poland-escalating-threats-to-women-activists). 

Committee  to  Protect  Journalists,  Polish  riot  police  attack  journalists  covering  demonstrations,  16 
November 
(https://cpj.org/2020/11/polish-riot-police-attack-journalists-covering-
demonstrations/). 

2020 

Council  of  Europe:  Committee  of  Ministers  (2010)  Recommendation  CM/Rec(2010)12  of  the 
Committee of Ministers to member states on judges: independence, efficiency and responsibilities. 

Council of Europe: Congress of Local and Regional Authorities Current Affairs Committee (2020), 
Report  on  a  fact-finding  mission  to  Poland  of  November  2020  (https://www.coe.int/en/web/portal/-
/new-reports-show-increasing-discrimination-and-attacks-on-lgbti-people-in-poland-and-europe-as-a-
whole). 

Council  of  Europe:  Committee  of  Ministers  (2021),  Interim  Resolution  of  12  March  2021 
(CM/ResDH(2021)44). 

Council of Europe: European Court of Human Rights, press releases 066(2021) and 140(2021).  

Council of Europe: Parliamentary Assembly of the Council of Europe (2021), Judges in Poland and 
in the Republic of Moldova must remain independent – Resolution 2359(2021), 6 January 2021.  

30 

 
 
Council  of  Europe,  Platform  to  promote  the  protection  of  journalism  and  safety  of  journalists 
(https://www.coe.int/en/web/media-freedom).  

Council of Europe, Secretary General of the Council of Europe: Open letter to the Minister of Justice 
of  the  Republic  of  Poland,  30  June  2021  (https://rm.coe.int/zbigniew-moj-poland-30-06-
21/1680a30491). 

Council  of  Europe:  Venice  Commission  (2016),  Opinion  on  the  Act  on  the  Constitutional  Tribunal 
(CDL AD(2016)026-e), 14 October 2016.  

Council of Europe: Venice Commission (2017), Opinion on the Act on the Public Prosecutor’s office 
as Amended (CDL-AD(2017)028), 11 December 2017.  

Council  of  Europe:  Venice  Commission  (2019),  Parameters  on  the  Relationship  between  the 
Parliamentary  Majority  and  the  Opposition  in  a  Democracy:  a  Checklist  (CDL-AD(2019)015),  24 
June 2019.  

Council of Europe: Venice Commission (2020), Joint Urgent Opinion of the Venice Commission and 
the  Directorate  General  of  Human  Rights  and  Rule  of  Law  (DGI)  of  the  Council  of  Europe  on 
Amendments to the law on the Common Courts, the Law on the supreme Court, and some other laws 
(CDL-AD(2020)017), 22 June 2020.  

Council of the European Union (2020), Recommendation on the 2020 National Reform Programme of 
Poland  and  delivering  a  Council  opinion  on  the  2020  Convergence  Programme  of  Poland  (OJ  C 
282/21), 20 July 2020.  

Court  Watch  Polska 
(https://courtwatch.pl/wp-
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31 

 
 
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33 

 
 
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34 

 
 
 
 
TVP Info, ‘Kim jest Agnieszka Domańska? Sędzia zdecydowała o nieprzedłużeniu aresztu Sławomira 
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tego  życzy.  To  sąd,  czy 

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35 

 
 
Annex II: Country visit to Poland 

The Commission services held virtual meetings in April 2021 with: 

  Amnesty International; 
  Batory Foundation; 
  Trybunał Konstytucyjny (Constitutional Tribunal); 
  Forum Obywatelskiego Rozwoju (Civil Development Forum); 
  Fundacja – Instytut Prawa Ustrojowego (Institute of Constitutional Law Foundation); 
  Fundacja Bona Notitia (Bona Notitia Foundation); 
  Fundacja Mamy i Taty (Mother and Father Foundation); 
  Helsinska Fundacja Praw Człowieka (Helsinki Foundation of Human Rights); 
 
 
 
  Klub Jagielloński (Jagielloński Club); 
  Ministerstwo Kultury (Ministry of Culture); 
  Krajowa Rada Sądownictwa (National Council for the Judiciary); 
  Krajowa  Rada  Radiofonii  i  Telewizji  (National  Council  for  the  Television  and  Radio 

Instytut Prawa i Społeczeństwa (Institute of Law and Society); 
Instytut Sobieskiego (Sobieski Institute); 
Izba Wydawców Prasy (Chamber of Press Editors); 

Broadcasting); 

  Krajowa Rada Radców Prawnych (National Council of Legal Councillors); 
  Rada Mediów Narodowych (National Council of Media); 
  Rzecznik Praw Obywatelskich (Ombudsperson); 
  Fundacja  –  Instytut  na  rzecz  Kultury  Prawnej  Ordo  Iuris  (Foundation  –  Institute  for  legal 

culture Ordo Iuris); 

  Stowarzyszenie Polskich Mediów (Polish Media Association); 
  Stowarzyszenie  Polskie  Telewizje  Lokalne  i  Regionalne  (Association  of  Polish  Local  and 

Regional Television); 

  Naczelny Sąd Administracyjny (Supreme Administrative Court); 
  Naczelna Rada Adwokacka (Chief Bar Council); 
  Sąd Najwyższy (Supreme Court); 
  Stowarzyszenie  prokuratorów  ‘Lex  Super  Omnia’  (association  of  prosecutors  ‘Lex  Super 

Omnia’); 

  Stowarzyszenie sędziów ‘Iustitia’ (association of judges ‘Iustitia’); 
  Stowarzyszenie sędziów ‘Themis’ (association of judges ‘Themis’); 
  Towarzystwo Dziennikarskie (Journalists Association); 
  Towarzystwo Dziennikarzy Polskich (Polish Journalists Association); 
  Watchdog Polska. 

* The Commission also met the following organisations in a number of horizontal meetings: 

  Amnesty International 
  Center for Reproductive Rights 
  CIVICUS 
  Civil Liberties Union for Europe 
  Civil Society Europe 
  Conference of European Churches 
  EuroCommerce 
  European Center for Not-for-Profit Law 
  European Centre for Press and Media Freedom 
  European Civic Forum 

36 

 
 
  European Federation of Journalists 
  European Partnership for Democracy  
  European Youth Forum 
  Front Line Defenders 
  Human Rights House Foundation  
  Human Rights Watch  
 
ILGA-Europe 
 
International Commission of Jurists 
 
International Federation for Human Rights 
 
International Planned Parenthood Federation European Network (IPPF EN) 
 
International Press Institute 
  Netherlands Helsinki Committee  
  Open Society European Policy Institute 
  Philanthropy Advocacy 
  Protection International  
  Reporters without Borders 
  Transparency International EU 

37