Considerations on COM(2017)835 - Determination of a clear risk of a serious breach by Poland of the rule of law - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2017)835 - Determination of a clear risk of a serious breach by Poland of the rule of law. |
|---|---|
| document | COM(2017)835  |
| date | December 20, 2017 |
(2) In its reasoned proposal, the Commission presents its concerns related to the lack of an independent and legitimate constitutional review and to the adoption by the Polish Parliament of the law on the Supreme Court3, the law on Ordinary Courts Organisation4, the law on the National Council for the Judiciary5 and the law on the National School of Judiciary6 which contain provisions raising serious concerns as regards judicial independence, the separation of powers and legal certainty. In particular, the main concerns relate to the new retirement regimes of Supreme Court judges and ordinary court judges, a new extraordinary appeal procedure in the Supreme Court, the dismissal and appointment of presidents of ordinary courts and the termination of the mandate and the appointment procedure of judges-members of the National Council for the Judiciary.
(3) The Commission also noted that the Polish authorities have failed to take the actions recommended in its Recommendation of 27 July 20167, and complementary
[INSERT Reference]
OJ C […], […], p. […].
The law on the Supreme Court, adopted by the Sejm on 8 December 2017 and approved by the Senate on […]
The law amending the law on the Ordinary Courts Organisation adopted by the Sejm on 12 July 2017 and published in the
Official Journal on 28 July 2017.
The law amending the law on the National Council for the Judiciary and certain other laws adopted by the Sejm on 8
December 2017 and approved by the Senate on […].
The law amending the law on the National School of Judiciary and Public Prosecution, the law on Ordinary Courts
Organisation and certain other laws adopted by the Sejm on 11 May 2017 and published in the Official Journal on 13 June
2017.
Commission Recommendation (EU) 2016/1374 of 27 July 2016 regarding the rule of law in Poland; OJ L 217, 12.8.2016,
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Recommendations of 21 December 20168 and 26 July 20179 in order to address the systemic threat to the rule of law identified in those Recommendations.
(4) On 20 December 2017, in parallel to its reasoned proposal under Article 7(1) TEU, the Commission adopted a further Recommendation regarding the rule of law in Poland. However, Poland failed to take the recommended actions within the time set in that Recommendation.
(5) The dialogue which the Commission conducted with the Polish authorities under the Rule of Law Framework since 13 January 2016 has thus not alleviated the concerns referred to above.
(6) On 15 November 2017, the European Parliament adopted a resolution stating that the current situation in Poland represents a clear risk of a serious breach of the values referred to in Article 2 TEU.
(7) A wide range of actors at European and international level have expressed their deep concern about the situation of the rule of law in Poland, including the Venice Commission, the Commissioner for Human Rights of the Council of Europe, the Consultative Council of European Judges, the United Nations Human Rights Committee, the United Nations Special Rapporteur on the independence of judges and lawyers, the Network of Presidents of the Supreme Judicial Courts of the European Union, the European Network of Councils for the Judiciary, the Council of Bars and Law Societies of Europe as well as numerous civil society organisations.
(8) On [….] 2018, the Council has heard the Republic of Poland in accordance with the second sentence of Article 7(1) TEU.
(9) Whatever the model of the justice system chosen in a Member State, the rule of law enshrined in Article 2 TEU implies requirements relating to the independence of the judiciary, the separation of powers and legal certainty.
(10) It gives rise to great concern that, as a consequence of the recently adopted laws referred to above, the legal regime in Poland would no longer comply with these requirements.
(11) Respect for the rule of law is not only a prerequisite for the protection of all the fundamental values listed in Article 2 TEU. It is also a prerequisite for upholding all rights and obligations deriving from the Treaties and for establishing mutual trust of citizens, businesses and national authorities in the legal systems of all other Member States.
(12) The proper functioning of the rule of law is also essential for the seamless operation of the Internal Market because economic operators need to have the certainty that they will be treated equally under the law.
(13) Respect for the rule of law is essential for mutual trust in the area of justice and home affairs, in particular for effective judicial cooperation in civil and criminal matters which is based on mutual recognition.
(14) The principle of loyal cooperation between state organs is a constitutional precondition in a democratic state governed by the rule of law.
Commission Recommendation (EU) 2017/146 of 21 December 2016 regarding the rule of law in Poland complementary
to Recommendation (EU) 2016/1374; OJ L 22, 27.1.2017, p. 65.
Commission Recommendation (EU) 2017/1520 of 26 July 2017 regarding the rule of law in Poland complementary to
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(15) For those reasons, it should be determined, in accordance with Article 7(1) TEU, that
there is a clear risk of a serious breach by the Republic of Poland of the rule of law as one of the values referred to in Article 2 TEU.