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17th Nov 2018

Article 7 not mentioned in Poland probe update

  • The Polish president, who vetoed controversial bills in July, recently presented new amendments that give his office more powers. (Photo: Kancelaria Prezydenta/flickr)

EU member states have urged the European Commission and Poland to resolve rule of law concerns, just as Polish president Andrzej Duda proposed new amendments that would increase the political grip on the judiciary.

EU affairs ministers met in Brussels on Monday (25 September) where EU commission vice-president Frans Timmermans – as a follow up to a previous briefing in May – updated them on developments in the Commission's probe into Poland's rule of law.

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  • Poland's EU minister Konrad Szymanski (r) said the timing of the discussion in the council was "not the best" due to Duda's draft bills. (Photo: Council of the European Union)

Legislation passed and proposed over the summer in Poland on judicial reforms raised new concerns in Brussels over the independence of the Polish judiciary, and prompted the launch of several investigations.

The EU executive also launched a comprehensive probe into Poland's rule of law, the first of its kind in the EU's history. Timmermans explained to the ministers the Commissions' concerns and the recommendations it has so far sent to the Polish authorities.

During the discussion, EU countries' ministers spoke in support of a continued dialogue, with some member states - such as France, Sweden and the Netherlands - voicing more strongly the need to adhere to rule of law principles.

Others mentioned that the process for tackling the rule of law concerns has produced few concrete results.

"Everybody around the table said the rule of law is not an option, it is an obligation. It is not an afterthought, it is the fundament of European cooperation. It is not just something between the Commission and a member state, it concerns us all," Timmermans said in a press conference following the meeting.

"If the rule of law doesn't function well, then also the internal market can't function well, and this affects everyone," he added.

Only Hungary spoke in favour of the position of the Polish government, arguing that it is unfair to single out one member state in rule-of-law procedures.

Article 7

There was no discussion about launching the two-phased sanctions procedure - Article 7 of the EU treaty - against Poland.

"The word Article 7 was not mentioned in the room," an EU official said.

Polish EU affairs minister, Konrad Szymanski, reassured his colleagues that Poland does not question rule of law as the foundation of the EU, but said there are different interpretations of the principle.

He said that Poland has responded to every recommendation of the EU Commission and the country's justice and foreign ministers would be available to meet with Timmermans.

Szymanski added, however, that the timing of the meeting was not the best, given Duda's draft bills.

Duda's proposals

Timmermans welcomed amendments on the appointment of judges presented on Monday by president Andrzej Duda, who has vetoed two bills in July on the Supreme Court and a top judicial body, saying it gave the ruling Law and Justice (PiS) party and the justice minister too much power.

"We study very carefully the amendments," he said, urging the Polish authorities to send the proposed amendments to the Venice Commission, a legal expert body of the Council of Europe, for an opinion.

Yet, the Polish president - seemingly on collision course with his former party, PiS, and its leader Jaroslaw Kaczynski - proposed legislation that would increase political control over the judiciary, giving his office more power at the same time.

According to Duda's plan, which still needs to be approved by the parliament, the retirement age for Supreme Court judges should be set at 65 and the president should decide whether they can work longer.

That could mean that up to 40 percent of the Supreme Court judges would be out of a job, including Malgorzata Gersdorf, the body's chief, who has criticised the PiS government's moves against the judiciary.

The proposal raises constitutional concerns, and the Commission earlier warned it would launch the Article 7 procedure if Supreme Court judges were fired.

Duda also proposed that a three-fifths majority of MPs - not just a simple majority as in the original vetoed proposal - would be needed to appoint new judges in the influential National Council of the Judiciary. If lawmakers fail to agree, the president would be able to intervene. PiS has the majority in the parliament, but not three-fifths.

"The idea that members of NCJ will be elected by the MPs is unconstitutional and does not protect the judicial independence from politicians," Barbara Grabowska-Moroz of the Helsinki Foundation for Human Rights in Poland said, adding that it is difficult to analyse the proposals as the test are not yet available.

Duda's proposal would require a constitutional change on this point too, and he proposed to start consultations on it.

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