Poland’s Judicial Reforms: A Violation of EU Law?

By: Inessa Wurscher

Over the last several months, tensions have been rising between the EU and Poland regarding the recent Polish judicial reform measures.[1] The EU has claimed that Poland is violating EU laws and values, while the Polish government has maintained that it is simply implementing necessary judicial reforms to improve efficiency.[2] However, regardless of Poland’s reasons for the new laws, it is clear that the EU has some legally viable arguments that the reforms violate EU law that could lead to consequences for Poland in the long run.

The concerns with Poland’s judicial system began to take shape after October 2015, when members of the ruling, conservative Law and Justice Party (PiS) were elected to a number of positions in the Polish government.[3] Since then around 13 new pieces of legislation have been proposed that would affect Poland’s judicial system from the lower courts to the Constitutional Court  and the Supreme Court.[4] The first of these new laws would require the Court to “have 13 judges present, as well as a two-thirds majority vote to make a ruling” and would also extend the wait time for a final decision up to as long as six months.[5] Originally, only a simple majority of nine judges was required for such an action and the required wait period between the request and the Court’s final decision was only two weeks.[6] In March 2016, the Constitutional Court ruled this provision unconstitutional, however the effectiveness of this ruling is in doubt since Poland’s Prime Minister, Beata Szydlo, has “pledged not to abide by it.”[7] Such a statement could be seen as undermining the validity of the court, especially if the ruling is truly ignored – something that remains to be seen at this point.

Another new law allows members of parliament, most of which are currently members of PiS, to “appoint judges to the . . . [Supreme] [C]ourt and not recognize those who served under the old system.”[8] No judicial approval would be required.[9] The law also changes the age of retirement for judges, requiring female judges to retire at 60 years old and male judges to retire at 65 years old.[10] The Polish Senate and the Polish Parliament passed this law in July 2017.[11] While the Polish President Andrzej Duda did veto some of the other proposed judicial changes, this law allowing the justice minister to “select the heads of local courts” was signed into law. [12] The Polish Parliament continued trying to pass amended versions of the vetoed laws and succeeded on some counts in December 2017, adding more similar provisions restricting the judiciary.[13]

Since these new laws were introduced, several groups have expressed trepidation over their potential affects, including the Polish Supreme Court and several European Union (EU) bodies, as well as other outside groups and concerned individuals.[14] Specifically, many of these groups are concerned that “the law will make it harder for the court to function and could potentially paralyze the court all together, thereby strengthening the legislative branch at the expense of the court.”[15] Some critics have gone as far as to say that the new laws could do “damag[e] to the checks and balances within the [Polish] government.”[16] In fact, these new laws do have the potential to violate several EU treaties and directives, including the Treaty on European Union (TEU), EU Charter of Fundamental Rights, the Treaty on the Functioning of the European Union (TFEU), and Directive 2006/54 on gender equality in employment.[17] Concerns over these changes have lead not only to protests, but also to official action by the EU.[18]

The EU, through the European Commission (EC), began its investigations into the issue in January 2016.[19] In February 2016, the Council of Europe also began an official investigation into Poland’s new laws affecting its judicial system with plans for an official opinion to be submitted on the issue that would help the EU make a decision regarding Poland.[20] At the start of June 2016 the EC “adopted a rule of law opinion . . . on Poland, warning that changes to the country’s constitutional court pose a risk to the rule of law.”[21] The rule of law procedure is one of two options for how the EU may deal with violations of and noncompliance with EU law.[22] This rule of law procedure can lead to sanctions under Article 7 of the Treaty of the European Union.[23] The procedure was adopted in 2014, and this situation in Poland marks the first time the EU has used it.[24]

However, does the EU have a valid claim that Poland is violating EU law? Under Article 7 of the TEU, as modified by the Lisbon Treaty, the European Council has the ability to “determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2.”[25] Article 2 states that the EU “is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”[26] Essentially, by bringing a rule of law violation against Poland, the EU is arguing that Poland has violated the basic principles of the EU. According to the President of the European Council, Donald Tusk, “[t]he European Union is not just about money and procedures. It is first and foremost about values and high standards for public life.”[27] The EU argues that “[b]ringing the courts under the control of the governing party in the manner proposed by the Law and Justice Party (PiS) will ruin the already tarnished public opinion about Polish democracy.”[28] Such an action would clearly violate several of the listed values in article 2 and gives the EU firm ground to stand on in its claims against Poland.

In 2017, the EU “threatened to take Poland to court for undermining the democratic system of checks and balances.”[29] The EU has also demanded that Poland “address [the] actions it has recently taken to undermine its own judicial system and the independence of Polish judges.”[30] The lack of response to these demands and the continuation of efforts to pass these new laws restricting the Polish judiciary lead the EU began its infringement procedure.[31] The infringement procedure is the process by which the EC “may take legal action . . . against an EU country that fails to implement EU law. The Commission may refer the issue to the Court of Justice, which in certain cases, can impose financial penalties.”[32] It could be said that the infringement procedure represents the second type of action that the EU can take against violators of EU law.

In implementing the infringement procedure, the EU is more concerned with Poland’s potential violations of specific rules of law, then the values behind the EU as a whole.  Under this procedure, the EU brings a different, twofold argument. First of all, the EU argues that Poland’s new laws violate employment anti-discrimination laws.[33] The TEU grants the European Parliament the right to “adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.”[34] This power was used by the European Parliament to create Directive 2006/54 which lays out specific measures regarding what constitutes employment discrimination.[35] At this point it is hard to say whether or not this argument will be particularly successful since the new laws regarding this issue are not entirely solidified yet and will likely turn on specific phrases of both the law and the Directive.

However, the EU’s second argument is likely to hold more sway. The second part of the EU’s argument under its infringement procedure is related to the new laws interference with the Polish judiciary system.[36] The TEU requires that “Member States . . . provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”[37] Furthermore, the EU Charter of Fundamental Rights states that “[e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.”[38] As was discussed above, there have been several concerns voiced by the EU and other groups about this very issue. Critics, as already noted, have been particularly concerned with the effects these actions will have on Poland’s checks and balances system. Given that these new laws, in there current states, give the legislature robust control over the judiciary as well as increasing processing times, it is not a stretch to see how this could impair the impartiality of the courts. This fact holds true particularly since the current makeup of the legislative and executive bodies is so strongly controlled by one party, PiS, at this time. The hardest part of this argument will likely be showing proof of this alleged influence.

It is clear that the EU has the potential to succeed under both the rule of the law and infringement routes; however, this still leaves the question of what can or should Poland do? In the end, there are few options available. Poland can take a chance in court through the infringement procedure and, if Poland looses, repeal their legislation and pay any sanctions, or Poland can comply with the EU’s recommendations that will be issued as part of the rule of law procedure. Complying with the EU’s recommendations may be their best option since the rule of law process is described as more of a dialogue between the EU and the violating country than a traditional legal proceeding.[39] Depending on how the process proceeds, there could be a bit more room for negotiation. Regardless of what Poland chooses to do, it is likely that this issue will prove to be an interesting study of the legal obligations and responsibilities of both the European Union and Poland.

[1]  Poland Judiciary Reforms: EU Takes Disciplinary Measures, BBC News, Dec. 20, 2017, http://www.bbc.com/news/world-europe-42420150.

[2] Id.

[3] Alexis Wheeler, Poland Passes Controversial Law to Weaken Top Court, Jurist, Dec. 24, 2015, http://www.jurist.org/paperchase/2015/12/poland-passes-controversial-law-to-weaken-top-court.php.

[4] Poland Judiciary Reforms: EU Takes Disciplinary Measures, supra note 1. The Polish Constitutional Court’s purpose is to “determine the constitutional validity of challenged laws.” Wheeler, supra note 3.

[5] Wheeler, supra note 3.

[6] Id.

[7] Jaclyn Belczyk, Poland Constitutional Court Strikes Down Legal Reforms, Jurist, Mar. 10, 2016, http://www.jurist.org/paperchase/2016/03/poland-constitutional-court-strikes-down-legal-reforms.php.

[8] Kasey Tuttle, EU Warns Poland Over Constitutional Court Changes, Jurist, Jun. 2, 2016, http://www.jurist.org/paperchase/2016/06/eu-warns-poland-over-constitutional-court-changes.php.

[9] Autumn Callan, Thousands Rally in Poland to Protest Judicial Reforms, Jurist, Jul. 17, 2017, http://www.jurist.org/paperchase/2017/07/thousands-rally-in-poland-to-protest-judicial-reforms.php.

[10] European Commission Acts to Preserve the Rule of Law in Poland, European Commission, Jul. 26, 2017, http://europa.eu/rapid/press-release_IP-17-2161_en.htm.

[11] Id; Lawrenz Fares, Poland Passes Bill to Allow Parliament to Appoint Supreme Court Judges, Jurist, Jul. 21, 2017, http://www.jurist.org/paperchase/2017/07/poland-passes-bill-to-allow-parliament-to-appoint-supreme-court-judges.php.

[12] Autumn Callan, Poland President Vetoes Judicial Reforms, Jurist, Jul. 24, 2017, http://www.jurist.org/paperchase/2017/07/polands-president-vetoes-judicial-reforms.php.

[13] Lawrenz Fares, EU Increases Pressure on Poland over Judicial Reform, Jurist, Sep. 13, 2017, http://www.jurist.org/paperchase/2017/09/eu-increases-pressure-on-poland-over-judicial-reform.php; Jaclyn Belczyk, Poland Approves Judicial Reform Legislation as EU Warns of Rule of Law Violations, Jurist, Dec. 20, 2017, http://www.jurist.org/paperchase/2017/12/eu-takes-action-against-poland-over-rule-of-law-concerns.php.

[14] Wheeler, supra note 3.

[15] Id.

[16] Id.

[17] European Commission Acts to Preserve the Rule of Law in Poland, supra note 10.

[18] Wheeler, supra note 3.

[19] Taylor Isaac, Human Rights Commission Investigation Poland Changes to Constitutional Court, Jurist, Feb. 8, 2016, http://www.jurist.org/paperchase/2016/02/human-rights-commission-investigating-poland-changes-to-constitutional-court.php; Belczyk, supra note 7.

[20]Issac, supra note 19; Venice Commission, Poland – Forthcoming Opinion – Visit to the Country, Council of Europe, http://www.venice.coe.int/webforms/events/?id=2170.

[21] Tuttle, supra note 8.

[22] European Commission Acts to Preserve the Rule of Law in Poland, supra note 10.

[23] Id.

[24] Tuttle, supra note 8.

[25] Treaty on European Union, art. 7.

[26] Treaty on European Union, art. 2.

[27] Statement by President Donald Tusk on the Situation in Poland, European Council, Jul. 20, 2017, http://www.consilium.europa.eu/en/press/press-releases/2017/07/20/tusk-statement-situation-poland/.

[28] Id.

[29] Callan, supra note 9.

[30] Fares, supra note 13. 

[31] Fares, supra note 13.

[32] Infringement Procedure, European Commission, https://ec.europa.eu/info/law/law-making-process/applying-eu-law/infringement-procedure_en#stages-of-an-infringement-procedure.

[33] European Commission Acts to Preserve the Rule of Law in Poland, supra note 10.

[34] Treaty on the Functioning of the European Union, art. 157.

[35] See generally Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).

[36] European Commission Acts to Preserve the Rule of Law in Poland, supra note 10.

[37] Treaty on European Union, art. 19.

[38] EU Charter of Fundamental Rights, art. 47.

[39] European Commission Acts to Preserve the Rule of Law in Poland, supra note 10.