by Filipe Marques, President of MEDEL (Magistrats Européens pour la Démocratie et les Libertés)

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Rule of Law in the European Union: the danger of a systematic change of the concept?

In the last day of September 2020, the European Commission publicly presented the first Rule of Law Report, intended to give an overview of the situation of Rule of Law in all twenty-seven EU Member States[i]. In the introductory words of this document, it is stated the Rule of Law, together with fundamental rights and democracy, “are the bedrock of our societies and common identity”.

The report came out just two weeks after President Ursula Von der Leyen, in her first State of the Union speech before the European Parliament Plenary, recognized that “the last months have also reminded us how fragile [Rule of Law] can be” and pledged to “always be vigilant, to care and nurture for the rule of law” [ii].

The current and ongoing situation in the EU, however, is much too serious to be tackled only with nice words in a speech or data collected in a report. The events and signs coming directly from the ground clearly show us that the time to act is now, before we reach a point of no return.

1. The ongoing deterioration of Rule of Law in the EU

In an article published nearly one year ago in this same blog, my colleague José Igreja Matos gave an overview of how the preliminary requests and disciplinary procedures against judges and prosecutors in Poland and Hungary were being used as weapons of the Executive to threat and put the Judiciary under pressure, with direct consequences to the integrity of the entire EU legal order[iii].

If we look at the evolution of the situation since then, there’s no reason whatsoever to be optimistic.

In a meeting held on January 6^th this year in Brussels, MEDEL had the opportunity to deliver in person to Mr. Didier Reynders, European Commissioner of Justice, a report on the most urgent cases of infringement to the Rule of Law in the Union and to urge him to act in a determined and strong way against the actions taken by the Polish government against Judges and Prosecutors, suggesting that the Commission should ask the European Court of Justice for interim measures in that regard.

On 23 January, the Commission asked the ECJ to issue interim measures, which were granted on 8 April, in Case C-791/19 R (Commission v. Poland). The ECJ ordered Poland:

• to suspend, pending the judgment of the Court of Justice on the action for failure to fulfil obligations, the application of the provisions constituting the basis of the jurisdiction of the Izba Dyscyplinarna of the Sąd Najwyższy to rule, both at first instance and on appeal, in disciplinary cases concerning judges;
• to refrain from referring the cases pending before the Izba Dyscyplinarna before a panel whose composition does not meet the requirements of independence defined, in particular, in A.K and Others; and
• to communicate to the Commission, at the latest one month after notification of the order of the Court of Justice imposing the requested interim measures, all the measures that it has adopted in order comply in full with that order.

When faced with this decision, the Polish authorities changed their strategy and kept the Disciplinary Chamber of the Supreme Court in full activity – instead of initiating disciplinary proceedings against judges or prosecutors, they started to present criminal charges against them, asking for that same chamber to waive the immunity of the persecuted judges and prosecutors so they could be criminally prosecuted. In this way, with the formal argument that the ECJ decision only prevented the Disciplinary Chamber to keep its activity in what regards disciplinary cases, the persecution of judges and the attack on the independence of the Judiciary and Rule of Law could carry on.

Several judges have been harassed in this way.

The case of Judge Igor Tuleya became famous and led to international events of solidarity by the legal community. Accused of overstepping his authority by allowing media into a courtroom hearing on whether the governing party violated rules during a 2016 vote in parliament, Judge Tuleya has for long been a target of the Polish government. Due to the constant attacks directed to him, he has suffered threats of violence, was already forced to evacuate his courtroom for fear of anthrax attacks and was even evicted by his landlord after excrement was thrown to the door of his Warsaw apartment[iv]. A request to waive his immunity was rejected in June, but the disciplinary officer appealed and the appeal hearing is now scheduled to October 22^nd.

Judge Waldemar Żurek is also one of the most persecuted members of the Polish judiciary. He gained notoriety during 2016-2018, when, as spokesperson of the ‘old’ National Council of the Judiciary, he was the most active voice of the independent Polish judiciary, denouncing in the media the numerous legislative and factual actions aimed at the political subordination of the Constitutional Tribunal, the National Council of the Judiciary and the Supreme Court. Currently, Judge Żurek is one of the most persecuted Polish judges: there are 5 unfounded disciplinary proceedings against him, and two explanatory proceedings.

Another example of persecution is that of Judge Beata Morawiec (President of the Association of Judges “Themis” – the second largest Polish association of judges – and also former member of the “old” National Council of the Judiciary). In a “national purge” of court presidents which was conducted on the basis of introductory provisions of the Act on the Organization of Ordinary Courts (in the course of which around 160 presidents and vice presidents of Ordinary Courts were dismissed before their terms of office expired), at the end of November 2017, the current Minister of Justice, Mr. Zbigniew Ziobro, removed her from the position of President of Regional Court in Kraków, linking her name, in an announcement posted on the ministry’s website, to an investigation concerning an alleged corruption in the Kraków Court of Appeal, which she had no role or involvement in. Judge Beata Morawiec was the only former court president in Poland who sued the Minister of Justice regarding the protection of her reputation, because of the content of the announcement on the ministry’s website. She won the case against the Minister in first instance and the Minister appealed, so the case is pending. On 15 September 2020, an information appeared on one of the pro-government news portals saying that the Department of Internal Affairs of the State Prosecution Office is conducting an investigation against Judge Beata Morawiec and, in the course of this investigation, a request to waive her immunity was submitted to the Disciplinary Chamber of the Supreme Court. On 18 September 2020, at 6 a.m., a public prosecutor, assisted by the Central Anticorruption Bureau (CBA), entered Judge Beata Morawiec’s house, threatening to search the house, and took her official laptop containing sensitive data.

These examples, among others, of persecution led 37 prominent academics to write an open letter (endorsed by MEDEL) to the President of the European Commission, clearly saying that “The rule of law in Poland is not merely being attacked. It is being destroyed in plain sight”[v].

Also the four biggest associations of Judges in Europe (MEDEL, European Association of Judges, Association of European Administrative Judges and Judges for Judges) wrote on September 30^th to President Von der Leyen[vi], alerting for the fact that “the fundamental pre-requisite of Mutual Trust within national judiciaries that sustains EU Judicial Cooperation is now patently at peril”, and asking:

• to urgently request the ECJ for a penalty payment regarding the continuing violation of its interim measures of 8 April 2020 in order to prevent the Disciplinary Chamber from proceeding with any activities until the final decision of proceedings in Case C 791/19;
• to start new infringement procedures against Poland for breach of EU Law as recommended by the European Parliament in its resolution of 17 September 2020, seen its disrespect of ECJ’s decisions and the continuous breach of EU Law’s fundamental principle of respect for the Rule of Law;
• to address the prosecuting authority headed by the Minister of Justice of Poland, which is also the current Prosecutor-General, urging it to abandon immediately these proceedings initiated in clear breach of European Law.
  
  2. The debate in the ECJ

A clear Rule of Law conditionality in the next EU Multiannual Financial Framework would be a powerful instrument to protect the Rule of Law in Europe, as MEDEL has been demanding for long[vii]. However, as this instrument depends on political will and negotiations, the immediate action must pass by the European Court of Justice. And here is where the real debate on what Rule of Law in Europe means and must be interpreted will take place.

On September 22^nd, the ECJ held the hearings on cases C-487/19 and C-508/19, in which the Court is asked to answer preliminary questions raised by Polish Judges Waldemar Żurek and Monika Frąckowiak (the latter, member of the board of MEDEL), regarding the meaning of Judicial independence and the standards of Rule of Law that Members States must respect.

In a very interesting analysis of the oral arguments put forward by all the participants in that hearing[viii], Prof. John Morijn draws our attention to the fact that we may be seeing more than just a battle between EU institutions and a Member State that is knowingly infringing EU Law: we could be witnessing a true challenge to the notion of Rule of Law and an attempt to change its understanding.

More than putting forward arguments based on the non-applicability of EU Law to the concrete cases or challenging the facts on which the questions were based, the Polish government tried to justify its actions before the court, clearly stating its conformity with the principles of Rule of Law and with the EU legal order.

As Prof. Morijn puts it, the argumentation of the Polish government before the ECJ “felt like a craving for acknowledgment in Luxembourg and elsewhere that what is openly pursued in Poland is not only legal but also legitimate as a matter of Union law”.

Seen this new strategy, it comes as no surprise the news that Poland and Hungary plan to establish a “Rule of Law institute” to assess how the rule of law is being upheld across the EU. In the words of the Hungarian Foreign Minister, “the aim of this institute of comparative law would be that we should not be taken for fools”[ix].

It is now clear that the battle for Rule of Law and the protection of the Judiciary in the European Union has escalated: it’s no longer only about protecting independent courts or judges and prosecutors – it is a matter of protecting EU Law as we have known it for decades. We could be facing an unprecedented challenge to the basic principles on which the European Union was built.

This should be enough to force the EU institutions to act decisively: we are now talking about the survival of European Union itself.

It should also be enough to mobilize all EU citizens – regardless of being connected to the judiciary in their countries or not – to stand up and fight for the protection of the core values that are the cornerstone of the EU legal order. By risking to lose them, we risk throwing away the most successful peace-keeping project Europe (and the world) has seen.

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[i] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – 2020 Rule of Law Report – The rule of law situation in the European Union, available at https://ec.europa.eu/info/sites/info/files/communication_2020_rule_of_law_report_en.pdf .

[ii] Available at https://ec.europa.eu/commission/presscorner/detail/ov/SPEECH_20_1655 .

[iii] Judicial independence in Poland and Hungary – Going, Going, Gone? Preliminary Requests and Disciplinary Procedures – A shocking development, available at https://officialblogofunio.com/2019/11/18/judicial-independence-in-poland-and-hungary-going-going-gone-preliminary-requests-and-disciplinary-procedures-a-shocking-development/ .

[iv] For a quick but detailed overview of Igor Tuleya’s situation, see the report published in The New York Times edition of January 10, 2020, “In Poland, a Stubborn Defender of Judicial Independence”, available at https://www.nytimes.com/2020/01/10/world/europe/poland-judges-tuleya.html .

See also “Today Tuleya, Tomorrow the EU”, by Aleksandra Gliszczyńska and John Morijn, in Verfassungsblog on Matters Constitutional – https://verfassungsblog.de/today-tuleya-tomorrow-the-eu/.

[v] “Before it’s too late: Open Letter to the President of the European Commission regarding the Rule of Law Breakdown in Poland”, available at https://medelnet.eu/index.php/news/europe/672-before-it-s-too-late-open-letter-to-the-president-of-the-european-commission-regarding-the-rule-of-law-breakdown-in-poland .

[vi] “Letter to the President of the European Commission”, available at https://medelnet.eu/index.php/news/europe/676-letter-to-the-president-of-the-european-commission.

[vii] “MEDEL Statement on the Rule of Law conditionality”, available at https://medelnet.eu/index.php/news/europe/624-medel-statement-on-the-rule-of-law-contiditionality .

[viii] “What’s in the Words – Learning from the Hearings in Cases C-487/19 and C-508/19: Four Avenues for (Tr)Action”, in Verfassungsblog on Matters Constitutional – https://verfassungsblog.de/whats-in-the-words/ .

[ix] “Poland, Hungary to set up rule of law institute to counter Brussels”, in Politico, September 29^th, 2020, available at https://www.politico.eu/article/poland-and-hungary-charge-brussels-with-double-standards-on-rule-of-law/ .


Pictures credits: Rule of law report 2020 by European Commission.