On 16 February, the Court of Justice of the European Union (CJEU) sitting as Grand Chamber delivered its ruling against Poland and Hungary who questioned the conditionality mechanism imposed by the Commission. The mechanism makes the receipt of financing from the Union budget subject to the respect by the Member States for the principles of the rule of law. In dismissing the actions brought by Hungary and Poland in its entirety, the court stated, ‘That mechanism was adopted on an appropriate legal basis, is compatible with the procedure laid down in Article 7 of the Treaty on European Union (TEU) and respects, in particular, the limits of the powers conferred on the European Union and the principle of legal certainty’.
Since taking power in 2015, Poland’s Law and Justice Party (PiS) has implemented a series of controversial reforms to its judicial system, which has been criticized by many as threatening the independence of the judiciary. The European Commission has repeatedly voiced its concerns about this since 2015.
The Commission has alleged that the reforms breach the general principles of autonomy, primacy, effectiveness, and uniform application of Union law. The Commission expressed serious doubts on the independence and impartiality of the Constitutional Tribunal and considers that it no longer meets the requirements of a tribunal previously established by law, as required by Article 19(1) TEU. To crack down on this breach, the Commission triggered Article 7(1) TEU procedure for the first time in 2017 and has since launched three new infringement procedures (April 2019, April 2020, 2021).
New measures were passed last year, giving the European Union additional powers to stop the EU funding where there is a lack of judicial autonomy. Poland, together with Hungary, feared losing out on millions of EU funds and asked the CJEU to rule on the legality of the new measure. Poland and Hungary argued that the mechanism does not provide legal certainty, is designed to administer political punishment, and should therefore be annulled.
The ruling by the CJEU comes after Advocate-General Manuel Campos Sanchez-Bordona opined in December 2021 that the EU power to cut funds over rule-of-law concerns was legal. A similar outcome had also been predicted by Prime Minister Viktor Orban, who said Hungary’s challenge to the European Union’s new powers to enforce the rule of law will probably be rejected.
The ruling means the Commission may now, under Regulation 2020/2092, withhold monies from the Member States that do not observe the rule of law.1)
Overview of Rule of Law Developments in Poland 2015 to 2022
The Polish Constitutional Tribunal delivers two judgements (K 34/15) and K 35/15) obliging the President of the Republic to appoint three judges previously nominated. The President however maintains five new nominations, ignoring the judgements, thus throwing into dispute the correct composition of the Tribunal and the institutions of the state.
- The Legislature adopts new rules on the functioning of the constitutional Tribunal making the conditions under which the Tribunal may review the constitutionality of newly passed laws exceedingly difficult by increasing the number of judges hearing cases, including raising the majorities needed in the Tribunal to hand down judgements.
- On recommendation from the then European Commission First Vice President Timmermans, the Polish government requests legal assessment from the Venice Commission but concludes the legislative process before receiving the Venice commission’s opinion.
- The Commission triggers pre-Article 7 procedures per its Framework for addressing systemic threats to the Rule of Law in any of the EU’s 28 Member States. The framework was developed to deal with systemic threats to the rule of law in the EU.
- The following exchanges between the Polish government and the Commission were unsuccessful, resulting in the Commission finding a systemic threat to the rule of law in Poland. The Polish authorities were then given three months to address the Commission’s concerns following the adoption of the Rule of Law Recommendation.
- The Europeans Parliament adopts a Resolution regarding the systemic threats to the rule of law in Poland by recommending Poland to cooperate with the Commission pursuant to the principle of sincere cooperation as set out in the Treaty.
- Member states call on Poland to resume dialogue with the Commission after the commission notifies the council and receives enormous support from the member states.
- Polish Foreign Minister and Justice Minister both ignore invitations from the Commission.
- The Commission adopts the third Rule of Law Recommendation, expressing serious concerns about the judicial reforms in Poland. The Commission also proposes remedies which Poland again ignores.
- The European Commission launches infringement procedures by sending a Letter of Formal Notice to Poland regarding the Polish law on the Supreme Court, citing Article 19(1) of the TUE Union and Article 47 of the Charter of Fundamental Rights of the European Union. The Polish government is given one month to respond to the Commission’s Letter of formal notice whilst keeping the door open for the continued ongoing rule of law dialogue with Poland.
- The Parliamentary Assembly of the Council of Europe adopts a resolution on new threats to the rule of law in the Council of Europe member States following the transmission of two new draft laws on the Supreme Court by the President of the Republic of Poland. This resolution is further adopted by the European Parliament.
- The Venice Commission on the Council of Europe delivers its opinion on the compatibility with the council of Europe’s standards on the rule of law of the two draft Acts submitted to the Sejm by the President of the Republic.
- Following the adoption of the two new draft laws by the Polish Senate, the European Commission adopts its fourth Rule of Law Recommendation, immediately followed by activation of Article 7 of the TEU through a proposal for the Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law.
- The Council holds two hearings under Article 7(1) TEU on the rule of law in Poland. The hearings both offer a possibility for ministers to chat with Poland about the alleged breaches.
- On the third hearing, Poland presents its position as a Victim of EU-Overreach and argues that its reforms are necessary to make courts more efficient and remove the remnants of the pre-1989 communist past. Ministers are given the opportunity to ask Poland questions on topics raised in the Commission’s reasoned proposal.
- Poland’s Constitutional Tribunal rules that the country’s constitution takes precedence over some EU laws.
- The European Commission commences legal action against Poland over ruling questioning primacy of EU law.
- The European Economic and Social Committee (EESC) adopts its Rule of Law and Recovery Fund and demands the imposition of swift and comprehensive sanctions for breaches of the rule of law, which put the Union’s budget at risk.
- The European Parliament writes to the European Commission demanding it freezes recovery money for Poland until Poland complies with the three demands from the Commission (scrap the disciplinary chamber, change the disciplinary rules, and reinstate dismissed judges)
- Poland, along with Hungary, asks the Court of Justice of the European Union (CJEU) to stop measures that allow the EU to cut off funds from the bloc’s budget to countries considered to be breaching the rule of law.