On 16th March 2022 the Court of Justice of the European Communities (CJEU) rejected the appeals by Poland and Hungary against the validity of the European Conditionality Mechanism of EU R 2020/92. It upheld the mechanism itself and specified the conditions under which this new power may be used by the EU Commission. It is a groundbreaking decision but for a real protection of the independent and impartial Judiciary in Poland the execution of the mechanism will take (too) long to be effective. This will not be different after the announcement of the European Commision on the 5th of April 2022 that it is now starting to take measures against Hungary based on the Conditionality Mechanism of EU R 2020/92.
Every time I think, “It can't get any worse in a civilised (Central) European country which is a member of the EU and NATO” it turns out that it can still get worse. Last year (2021), the executive and the legislature in Poland further strangled Poland's independent and impartial judiciary.1 Systematically, the judiciary in Poland is no longer independent and impartial. For Polish citizens, it depends on which judge you get: a judge appointed or promoted by the NEO-KRS (the non-independent Judicial Council controlled by the Polish government) or a judge who abides by the Rule of Law and European law and accepts that he/she may be suspended at any time, as recently happened to Joanna Hetnarowicz-Sikora.2 Since all members of the judiciary in EU Member States are also EU judges, this stranglehold on the Polish judiciary should be loosened as soon as possible, preferably in 2022.
It is a crucial year. The war in Ukraine may be obscuring the issue of the conflict between Poland and the EU, but legal experts should remember that Democracy under the Rule of Law depends on an independent and impartial judiciary at home and in the EU.
The treaties that enshrine human rights and shape the European Union and the Council of Europe are our legacy from the Second World War. This must not be squandered by politicians seeking unchecked power. It has to be said out loud here; dictatorship and lack of freedom are much closer than we think and the democratic constitutional state is no longer self-evident. (Even in the Netherlands, members of the Lower House (Tweede Kamer) threaten each other with "tribunals"). Russia's rapid descent into the depths of dictatorship and tyranny of the Second World War is a sign of the times.
What makes the endangered situation of the Polish judiciary different from that of the judiciary in other countries of the EU, for example Hungary? The conflict between the Polish judiciary and the Polish executive and legislature has been juridified to a great extent at national and European level. As a result, it is now the European judges who define for Poland the criteria for an independent judiciary that meets the requirements of the rule of law at national level.3
The primacy of EU law within the EU has never been entirely uncontroversial. but even the judges from Karlsruhe (Germany) consider the current attitude of the Polish Constitutional Tribunal to be incomprehensible and incorrect.4 However, the whole concept of the “primacy of EU law” is being denied and trampled on by both the Polish Government and Polish politics, as well as the highest Polish constitutional court. Recently, the Polish Constitutional Court even ruled that in the State of Poland, Article 6 of the ECHR does not have direct effect.5
Since 2015, the Polish judiciary has been squeezed by more and more laws and policies.6 The Polish courts have responded by asking preliminary questions, litigating all the way up to the European Court of Human Rights in Strasbourg and urging the European Commission to start infringement proceedings. These infringement proceedings were instituted and won. The Court of Justice of the European Communities (CJEU) imposed large fines on the State of Poland, but despite this, the Polish State is not complying.
What is threatening to happen in Poland and Hungary (and in more EU Member States), that is the slide of the democratic rule of law towards authoritarian governed states, has long remained under the radar within the EU. Finally, on 16th December 2020, EU R 2020/20927 - better known as the European Conditionality Mechanism - came into force. In a nutshell, this mechanism ensures that the European Commission can decide not to grant European funds to member states that do not have their rule of law in order.
Hungary and Poland did not give in so easily and turned to the CJEU in a procedure against the European Commission asking to have this regulation annulled. The ruling of the CJEU in this case was eagerly awaited, especially in Poland. Could this be the salvation of the Polish judiciary? On 16th February 2022, the CJEU gave the green light in cases C-156/21 (Hungary) and C-157/21 (Poland).8 In these two judgments, each containing almost 400 legal considerations, the CJEU rejected the appeals of Hungary and Poland and at the same time specified the conditions under which the European Commission can make use of these new powers.
Will this now bring a rapid solution to the pressing problems of Polish judges? Unfortunately, it does not. With an unprecedented speed, the European Commission published ‘The directives for the adoption of concrete decisions under R 2020/2092’ as early as 2nd March 2022.9 The decisions against Poland and Hungary still have to be prepared and taken. Once again, legal remedies are available against these decisions.10 It follows from the nature of these cases that Hungary and Poland will be directly and individually affected by the decisions that the European Commission must now take. That is precisely the intention of the conditionality mechanism.
The CJEU decided cases C-156/21 and C-157/21 within a year. Even if the European Commission continues to speed up the necessary follow-up steps, it will take at least another year and a half to two years before the decisions to be taken regarding Hungary and Poland are irreversible.
Polish judges cannot wait that long. The Polish Government is making all kinds of conciliatory noises, but the hard truth is that the NEO-KRS still selects and appoints judges, the Disciplinary Chambers are still active, judges are still being suspended and remain suspended, incomes of suspended judges are still being cut and judges are still being criminally prosecuted.11 The Polish Judges' Association, Iustitia, has drafted a law which will once again guarantee the independence and impartiality of Polish judges.12 This draft law is in line with the Polish constitution, but the Polish Government does not want it. In fact, the Polish Minister of Justice has introduced a bill to make the judiciary more efficient, which will result in all Polish judges being dismissed and then having to reapply for a new appointment by the NEO-KRS.
The result of this may be that within a year, there will no longer be an independent and impartial judiciary in Poland because only judges who are sympathetic to the current government will be appointed.
If this can happen in one EU country without significant consequences, it is the beginning of the end of the EU as a community of values. Precisely in the current tense international situation, the EU must not let this happen. Judges have now done (almost) everything in their power to prevent this. It is now up to the politicians (in the EU this means the European Council, the European Commission and the European Parliament) to keep the EU Trias Politica in balance and to protect the EU (and that means all national judges within the EU) in order to keep the EU as a Democracy under the Rule of Law.
The least the European Commission could do right now is to submit a new (second) request to the CJEU to drastically increase the fine of one million euros per day already imposed on Poland on 27 October 2021 C-204/21 R 13; on the grounds that the Polish Government is still not complying with the decision of 14th July 2021 in the interim injunction case C-204/21,14 while in the meantime R 2020/2092 has entered into force. An increased amount may be deducted from the amounts due to Poland with immediate effect!
It is abhorrent to link one of the core values of the democratic rule of law with a financial incentive.
In a democratic state based on the rule of law, the real solution must come from the citizens. Elections will be held in Poland in March 2023. It is to be hoped that the people of Poland will realise the importance of EU membership and will reflect this in their voting behaviour. Perhaps the senseless war in Ukraine will have opened their eyes. This country is not a member of the EU or NATO, and therefore has no protective umbrella over its head.
What judges can do in any case and in my opinion should continue to do, is to speak out with dignity, clarity and publicly15 in order to warn against this serious threat to the democratic rule of law and to the EU as a community of values. There is more room for this than one might think at first glance.
The year 2022 will prove to be crucial for the EU and its core values!
De Nederlandse versie van dit artikel verschijnt in NJB 2022/866, afl. 14.
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- For the latest developments see, for example: In-depth report: 'Internal Affairs Department of the State Prosecution Service as a politicised tool of oppression of Polish judges and prosecutors' prepared by Dariusz Mazur, press officer of the association of judges 'Themis' updated as at 6 December 2021 - Themis (themis-sedziowie.eu)
- https://youtube.com/watch?v=D6bLkgIOZVk&feature=share In this statement, she herself explains what happened to her.
- For the most important rulings of the ECJ, see paragraphs 83 and 84 of the decision of 14 July 2021 in C204/21 ECLI:EU:C:2021:593. With regard to the rulings of the ECtHR, see Guide on Article 6 - Right to a fair trial (civil limb) (coe.int) The most important rulings to be found therein for Poland are Xeroflor/Poland, number 4907/18 of 7 May 2021 and Reczkowicz/Poland, number 43447/19 of 22 July 2021. Not yet included in this overview, but also essential, is the case Grzeda v Poland, number 43572/18 of 15 March 2022.
- European Commission closes infringement proceedings against Germany for alleged breach of the principle of primacy of EU law | Expertise Centre for European Law (minbuza.nl)
- Statement by Retired Judges of the Constitutional Tribunal on the Constitutional Tribunal Judgment in Case K 7/21, VerfBlog, 2022/3/14, https://verfassungsblog.de/statement-by-retired-judges-of-the-constitutional-tribunal-on-the-the-constitutional-tribunal-judgment-in-case-k-7-21/, DOI: 10.17176/20220314-1212-0. On 24 November 2021, the Polish Constitutional Tribunal already issued a similar judgment in case K6/21.
- Report - Justice under pressure. Years 2015-2019 - Stowarzyszenie Sędziów Polskich Iustitia
- Official Journal of the European Union L 433I, 22 December 2020
- For a brief summary see NJB 2022/521, issue 8, page 615 et seq. for the full texts ECLI:EU:C:2022:97 and ECLI:EU:C:2022:98
- c_2022_1382_3_en_act_part1_v7.pdf (europa.eu)
- For a brief explanation of these procedures, see: Action for annulment of an EU act (europa.eu)
- Iustitia's draft of law restoring rule of law in Poland and implementing ECJ's and ECHR's rulings - Stowarzyszenie Sędziów Polskich Iustitia en Mission Possible, or in other words how to restore the rule of law - Rule of Law
- See also note 13. This can happen quickly, the request in the judgment of 27 October 2021 C-204/21R was dated 7 September 2021.
- See The Demonstrating Judge, by Sietske Dijkstra NJB 2021/2531, issue 34, p. 2786, with my reaction to it and her postscript in NJB 2021/3023, issue 41, p. 3407 et seq.