Commission embraces Guideline of Law Opinion on the situation in Poland

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The European Commission has today embraced an Opinion concerning the rule of law in Poland. Following the intensive dialogue that has actually been continuous with the Polish authorities since 13 January, the Commission has deemed it required to formalize its evaluation of the present circumstance in this Opinion. As visualized in the Rule of Law Framework, this is the primary step taken by the Commission in this process. The Opinion sets out the issues of the Commission and serves to focus the ongoing discussion with the Polish authorities towards discovering a solution.

Vice-President Frans Timmermans stated today: “The guideline of law is one of the foundations of the European Union. There have actually been constructive talks which need to now be translated into concrete steps to resolve the systemic threat to the guideline of law in Poland.

The rule of law is among the common values upon which the European Union wages established. It is enshrined in Article 2 of the Treaty on European Union. The European Commission, together with the European Parliament and the Council, is accountable under the Treaties for guaranteeing the regard of the rule of law as an essential value of our Union and making sure that EU law, values and concepts are respected.

Current events in Poland concerning in specific the Constitutional Court have led the European Commission to open a discussion with the Polish Government in order to guarantee the full regard of the rule of law. The Commission considers it required that Poland’s Constitutional Tribunal has the ability to completely guarantee an efficient constitutional evaluation of legislative acts.

The current issues of the European Commission relate to the following problems:

the visit of judges to the Constitutional Tribunal and the application of the judgments of the Constitutional Tribunal of 3 and 9 December 2015 associating with these matters;
the Law of 22 December 2015 modifying the Law on the Constitutional Tribunal, the judgment of the Constitutional Tribunal of 9 March 2016 relating to this law, and the regard of the judgments rendered by the Constitutional Tribunal since 9 March 2016;
the effectiveness of the Constitutional evaluation of brand-new legislation which has actually been embraced and enacted in 2016.

Next Steps

On the basis of these observations, the Commission would continue to pursue the constructive dialogue with the Polish federal government with a view to finding solutions to the concerns set out. If the issues have actually not been sufficiently dealt with within a sensible time, the Commission might decide to provide a Rule of Law Recommendation.

Background

In November 2015, the Commission became aware of an ongoing disagreement in Poland worrying the structure of the Constitutional Tribunal, in addition to the shortening of the mandates of its current President and Vice-President. The Constitutional Tribunal rendered 2 judgments on these matters, on 3 and 9 December 2015. In addition, the Commission noted that the Sejm (Polish parliament) authorized on 22 December 2015 a law changing the law on the Constitutional Tribunal, which concerns the functioning of the Tribunal as well as the independence of its judges.

In light of the scenario concerning the Constitutional Tribunal, the First Vice-President composed to the Polish Government on 23 December 2015 to request further info about the state of play. The letter requests that the Polish Government discuss the measures they imagine to take with regard to the various Constitutional Tribunal judgements.

The First Vice-President’s letter also recommended that the Polish Government seek advice from the Venice Commission before adopting the proposed modifications to the Law on the Constitutional Tribunal. The Polish Government asked for a legal assessment from the Venice Commission on 23 December, however in the meantime the law was formally embraced on 28 December

On 9 March 2016 the Constitutional Tribunal ruled that the Law of 22 December 2015 is unconstitutional. On 11 March, the Venice Commission adopted a viewpoint where it found the changes of 22 December to be incompatible with the requirements of the guideline of law. The judgment of 9 March, in addition to all judgments rendered by the Constitutional Tribunal ever since, have not been published in the Official Journal.
Since then, extensive exchanges have taken location in between the Commission and the Polish Government in meetings at various levels to look for a resolution of the present duality of legal systems in Poland. In spite of these exchanges, it has actually not yet been possible to discover a solution to the issues recognized by the Commission.

On 18 May, the College of Commissioners talked about the circumstance worrying the rule of law in Poland based upon an oral discussion by First Vice-President Timmermans regarding the state of play of the extensive dialogue that has actually been continuous with the Polish authorities since 13 January on the circumstance of the Constitutional Tribunal, and examined a draft Rule of Law Opinion.

The First Vice-President took a trip to Poland on 24 May for discussions with the Polish Prime Minister and other pertinent celebrations. In spite of these meetings and additional contacts, the Polish Government has actually still not taken the concrete steps needed to resolve the Commission’s issues in a satisfying method and thus resolve the issue.

The Rule of Law Framework presented on 11 March 2014 – has 3 phases (see likewise graphic in Annex 1). The entire procedure is based upon a continuous dialogue in between the Commission and the Member State concerned. The Commission will keep the European Parliament and Council regularly and closely informed.

Commission evaluation: The Commission will gather and analyze all the appropriate details and assess whether there are clear indications of a systemic risk to the guideline of law. If, on this evidence, the Commission believes that there is a systemic risk to the rule of law, it will start a discussion with the Member State concerned, by sending its “Rule of Law Opinion”, substantiating its issues. This Opinion acts as an alerting to the Member State, and gives the Member State worried the possibility to react.
Commission Recommendation: In a 2nd stage, if the matter has actually not been sufficiently dealt with, the Commission can release a “Rule of Law Recommendation” addressed to the Member State. In this case, the Commission would suggest that the Member State fixes the issues identified within a fixed time limit, and inform the Commission of the steps required to that result. The Commission will reveal its recommendation.

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