In December, the European Commission triggered the so-called Article 7(1) TEU procedure against Poland on the grounds that “there is now a clear risk of a serious breach of the rule of law”. If a ’serious breach’ persists for some time, the sanctioning mechanism of Article 7(2) TEU suspends certain rights of that country in the Council, including the voting rights. The Commission sent a reasoned opinion to the Council laying out the case that Poland poses a serious threat to the rule of law, triggering a battle over whether the EU has the power to criticize the judicial “reforms” (as the Polish government calls them) of a Member State.

In urging the Council to find that there is a clear risk of a serious breach of the rule of law in Poland (there is no question of sanctions at this stage which may be only considered in the case of “the existence of a serious and persistent breach”), the Commission pointed to the fact that Poland packed its Constitutional Tribunal with judges whose election violated the Polish Constitution, restricted the operation of the Constitutional Tribunal in unconstitutional ways and refused to publish the decisions of the Constitutional Tribunal that found against the government on these matters. As the Commission noted, Polish authorities also attacked the ordinary judiciary by adopting “reforms” which enable the ruling party to fire without cause all ordinary court presidents, dismiss almost 40 per cent of the current Supreme Court judges through the trick of changing the judicial retirement age (while giving the national President the unfettered discretion to retain those judges he liked); alter the composition of the National Council of the Judiciary so that the appointment of new judges would made by reliable government allies; and permit all cases decided in the  past 20 years to be reopened by any interested party and then re-decided by the courts that now contain the new government-approved judges. As the Commission stated, “[t]he common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.”

The tone of the Commission’s opinion is measured and factual, and yet it should cause alarm among all those interested in the future of Europe. The Commission makes its case for action only on the basis of those measures that have been taken already, not on hypothetical or proposed attacks that might materialise off in some imagined future. The Commission builds a powerful argument that the rule of law has already been undermined in Poland as the government fires judges and controls the new judicial appointments, after it has already reduced the Constitutional Tribunal to a rubber stamp for one-party rule. Given the evidence that the Commission presents, one would surmise that we had already moved well beyond the “clear risk of a serious breach” into the breach itself. But EU institutions are slow; they are still at the stage of documenting and certifying the risk that such breach might occur. And yet even with this modest action in the face of continuing provocation, the Commission has been attacked for intruding on the protected competencies of national authorities.

In this post and a number of forthcoming ones, we aim to give readers a straightforward overview of the problem of the rule of law in the EU. We present the arguments put forward by those who reject EU intervention and show why they fail. But while we want to defend the move to trigger Article 7(1) TEU, we also believe that the EU institutions have not yet fully risen to the challenge. So we also present critiques of what the EU institutions have done to date. To accomplish these purposes, we offer 10 Questions & Answers on the rule of law in the EU.

Question 1: Is the rule of law too vague a notion to be enforced by the EU against its Member States?

Discussing possible sanctions against Poland over its rule of law issues, the Bulgarian prime minister recently claimed that the rule of law is too “vague” to be measured before adding: “Every time you want to hurt someone’s feelings, you put [on the table] ‘the rule of law’.” The argument that the rule of law is a vague, elusive or trivial concept is not new. To give a single example, in 2007, the UK House of Lords itself concluded that the rule of law “remains a complex and in some respects uncertain concept” notwithstanding its inclusion in the British statute book in 2005.

In the EU legal framework, the rule of law is explicitly mentioned as a value which is common to the EU and its Member States (see Article 2 TEU). It is also referenced as a principle which the EU ought to promote in its external action (see Article 21 TEU). The EU Treaties do not, however, provide a definition, which is not unique to this concept. Indeed, most national constitutions that refer to the rule of law do not provide any definition either. This does not necessarily imply that the rule of law is inevitably vague.

As a matter of fact, the European Commission offered a compelling working definition of the rule of law in 2014, which itself closely reflects the definition proposed by the Council of Europe’s Venice Commission in 2011. For the European Commission, there is a broad consensus on the core meaning of the rule of law which entails compliance with the following six legal principles: legality; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for human rights and finally, equality before the law.

While the European Commission accepted that “the precise content of the principles and standards stemming from the rule of law may vary at national level”, its understanding of the rule of law makes clear that the core elements remain the same. Similarly compelling is the Commission’s view that the rule of law must be understood as a “constitutional principle with both formal and substantive components” and also one which “is intrinsically linked to respect for democracy and for fundamental rights.”

Arguing that the rule of law is too elusive to be relied upon by the EU omits its long-established use in the context of EU enlargement policy (see Chapters 23 and 24 of the EU’s acquis), where it has been used as a standard against which to measure the progress of accession states. Arguing that the rule of law cannot be measured similarly omits the many rule of law measurement indexes or checklists which currently exist (see for instance the 2016 Venice Commission’s Rule of Law checklist recently endorsed by the Parliamentary Assembly of the Council of Europe). Coming from the Bulgarian prime minister, this vagueness critique was all the more surprising considering that Bulgaria has been subject to a special rule of law monitoring mechanism since 2007, in the context of which a number of explicit and specific benchmarks were adopted. Among them, one may mention the need to adopt constitutional amendments to remove “any ambiguity regarding the independence and accountability of the judicial system.”

We might note that many important principles of law have solid cores that can be legally enforced even if there is disagreement about where the boundary is at the margins. The right to “free speech” surely includes the idea that the state may not punish the political opposition for criticising the government even if there is no unanimity about whether hate speech may be legally prohibited. The right to data privacy surely includes the requirement that the state may not as a general matter indiscriminately collect private information even if there is no unanimity about how far this right gives way in the immediate aftermath of a terrorist attack.  Most general principles have clear cores and contestable margins, and it is no argument against the existence of the clear core that one can imagine cases at the margins over which one can reasonably argue.

It would be therefore wrong in our view to argue that there is no such thing as the rule of law or that this principle would be too open-ended to be enforced by the EU. The EU Commission should be commended for adopting a working definition of the rule of law in 2014 and imposing benchmarks as well as making specific recommendations. This is not to say that definitions or indexes are the miracle cure when it comes to monitoring and guaranteeing a country’s adherence to the rule of law. Holistic and contextual assessments remain essential to detect the first signs of what we call rule of law backsliding. But there is no reasonable doubt about what the backsliding is from.

A little over a month ago, the Polish parliament passed a law on organizational issues related to the Conference of Parties (COP24) of the UN Framework Convention on Climate Change (UNFCCC), which will meet next in December in Katowice, Poland. While the law has not received much international media attention, it has caused quite a stir amongst environmental non-governmental organizations and human rights activists, mainly due to two articles of the bill: article 22 prohibits participation in any spontaneous assembly between November 26 and December 16, 2018, in the city of Katowice, thus spanning the entire COP24 meeting; and article 17 authorizes the Polish government to collect participants’ personal data for reasons of public safety. As far as I understand the provision (thanks to unofficial translations by colleagues), article 17 permits, amongst others, that personal data of all COP24-participants be stored, without a need for concrete indications of a threat to public security and without the need to inform affected persons. In reaction, the Women and Gender Constituency at the UNFCCC has called upon Poland to repeal the bill and appealed to the European Commission and the Office for the High Commissioner of Human Rights to take measure to that end. In addition, a group of civil society organizations has called upon the Bureau of the Aarhus Convention to remind Poland of its obligations under the Aarhus Convention to ensure meaningful civil society participation in the upcoming environmental negotiations at COP24. But what are the specific human rights concerns caused by the bill?

Public safety I: spontaneous gatherings and the right to peaceful assembly

A civil and political rights classic, the right to freedom of peaceful assembly is enshrined in article 21 of the International Covenant on Civil and Political Rights (ICCPR) and article 11 of the European Convention on Human Rights (ECHR), both ratified by Poland. While the exercise of the right can be subject to legal regulation, a complete ban of spontaneous assemblies is consistently considered to be an unlawful restriction. Thus, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association recommended that “spontaneous assemblies should be recognized in law, and exempted from prior notification” (at 91). The Human Rights Committee, the ICCPR’s treaty-monitoring body, even spoke of a “right of spontaneous assembly” in a country report (at para 49). And the European Court for Human Rights has emphasized that disbanding a peaceful assembly solely because it was not notified to the authorities constitutes a disproportionate restriction on freedom of peaceful assembly when “an immediate response, in the form of a demonstration, to a political event might be justified” (at para 36).

Of course, public safety reasons might be invoked in order to justify a restriction on the right to freedom of assembly. Some might think of the French authorities deciding to ban the climate march at COP21 in Paris three years ago. While there was controversy at the time regarding the use of the French state of emergency to repress environmental activists, there are considerable differences to the situation today: Paris had suffered a severe terrorist attack at the Bataclan club mere weeks before hosting the COP. Intensive discussion with civil society organizations and the UNFCCC Secretariat had preceded the cancelling of the climate march. There was no preventive and absolute ban of all spontaneous gatherings put into place months in advance. Without indication of a threat to public safety, a blanket ban of spontaneous assemblies cannot be reconciled with Poland’s European and international human rights obligations.

Public safety II: storing personal registration data and data protection

Storing personal data is subject to restrictions flowing from the right to privacy enshrined in article 17 ICCPR and article 8 ECHR; in addition, article 8 of the Charter of Fundamental Rights of the European Union explicitly provides a right to protection of personal data (which the ECJ would probably consider applicable, given its broad interpretation of the Charter’s field of application and the EU data protection directive). Given the increasing complexity and constant shifts in multi-level data protection law, it is not my ambition to address in detail all legal questions arising from the constellation under review. But looking at some underlying principles of data protection law will illustrate the problem with the current bill: as emphasized by the UN Special Rapporteur on the right to privacy (in annex II), data collection is subject to the purpose-specification and the use limitation principle. This means that personal data can only be collected for a specified purpose and cannot be used for other purposes without consent of the affected individual, and it needs to be deleted permanently once the time required for the specified purpose runs out. These principles find expression in article 8 para 2 of the Charter of Fundamental Rights as well as in article 9 of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.

As far as I can see, the purpose of storing the data of all participants of COP24 is to ensure security and public order during the COP. These purposes, next to crime prevention, are explicitly listed in the chapeau of article 17 of the Polish bill. One might ask to what extent storing the data of all participants of the COP24 by the Polish government serves the end of ensuring public safety in the first place. But even if answered in the affirmative, the storage would need to be proportionate. In this context, it is important to consider that the data collection foreseen in the bill is possible without the consent and information of affected persons. Regarding telecommunications surveillance, the ECHR has emphasized that secrecy contains an especially high risk of arbitrary exercise of an executive power. In article 18, the Polish bill clarifies that the data collection is subject to Polish data protection law (and thus, I assume, on an implementation of the EU Data Protection Directive) and international conventions ratified by Poland. This implies that secret data retention without concrete indication of a threat to public safety for all participants of the COP cannot readily be put into practice. Again, it is the blanket nature of the provision that is problematic from a rights perspective.

What obligation for the UNFCCC Secretariat?

This entails a further thought: In order to store participants’ personal data, the Polish government needs to rely on the UNFCCC Secretariat, which retains registration data of all participants, who register through their Web site. Data is stored for future registration purposes and, according to a UNFCCC Secretariat speaker, data is shared with host countries upon their request, and especially in order to ensure processing visa applications for participants. To what extent is data sharing by the UNFCCC Secretariat subject to international human rights obligations? While not a party to international human rights treaties, it is generally acknowledged (even if the justification is hotly debated) that international organizations are in principle subject to the international human rights obligations that they are called upon to promote. While data sharing for the purpose of visa processing does not raise any human rights concerns, one might consider to what extent the blanket nature of the bill requires the UNFCCC Secretariat to request some form of assurance from host government to not secretly retain data of all COP-participants without concrete cause.

NGOs are in part worried about the secret storage of personal data because it leads at least subjectively to a large insecurity as to what will happen with the personal data and whether this might lead to reprisals in their countries of origin. In his last report, the UN Special Rapporteur on Human Rights Defenders concluded that the situation of environmental human rights defenders was deteriorating and that they were increasingly the subjects of reprisals ranging from significant restrictions of their work to physical violence and even documented cases of killings. Announcing to store participants’ data without cause might have the realistic potential of decreasing civil society participation at the upcoming COP. The UNFCCC Secretariat could work against this by not sharing data or at least requiring assurances that data will not be stored as a general rule and only when indications of a threat to public safety exists.

Between legal and political action

The law was signed by President Duda on January 29, 2018, and is currently in force. Of course, the Polish legislator is free to repeal the act or modify the provisions discussed in this post. I do not know under which conditions bills are subject to legal review under Polish constitutional law and what role the Polish ombudsperson might play in this regard. If the prohibition of spontaneous gatherings stays in place until the COP, activists could choose to ignore it – if a gathering was dissolved for the sole reason of contravening article 22 of the bill, legal action in front of the ECHR against such an act of dissolution would look promising, given past case law. This would of course require exhaustion of local remedies, including, in the case of interim measures, the exhaustion of domestic interim measures, which makes it uncertain whether legal relief could be achieved in a timely fashion. And an ex post affirmation of the legality of a spontaneous gathering and the illegality of its dissolution would be but a small consolation for civil society movements.

Exhaustion of domestic remedies would also be required regarding the data protection issue; in addition to the ECHR, one might consider the possibility of a preliminary ruling procedure in front of the ECJ (but it is not clear whether, even if legally conceivable, this is likely under current political circumstances). There are no legal means to assert a possible obligation of the UNFCCC Secretariat to ensure safe data use – here, affected NGOs will have to resort to political lobby work, as has been done e.g. through the letter to the Bureau of the Aarhus Convention. Next to the UNFCCC Secretariat, awareness could be raised with the UN Special Rapporteurs on the right to privacy, on human rights defenders, and on the rights to freedom of peaceful assembly and of association, all of whom receive individual communications. But this case also shows once more: individual legal redress is largely powerless where laws are intended to exercise political pressure (at least this is how a spokesperson of Greenpeace Poland views the bill and much could be and is said about the current state of the rule of law in Poland in light of the ongoing Article 7 procedure). Thus, it is perhaps not so surprising that the reaction to the bill has thus far been largely a political debate – but one in which legal arguments have a role to play.

A German version of this article has been posted on the Juwiss Blog.

What started in 2015 as “court packing”, transformed in 2016 into an all-out attack on the judicial review and checks and balances, and ended with full-blown constitutional coup d’état and destruction of the independent constitutional review in Poland. The attack has been unprecedented in scope, efficiency and intensity. It has never been premised on a dissatisfaction with the overall performance, or particular acts of, the Polish Constitutional Court („the Court”), but rather struck at its very existence. The Court, once proud institution, and effective check on the will of the majority, entered 2017 as a shell of its former self, bruised and covered with constitutional scars.

What, and how, happened in 2016 has long-term effect, not only on the legitimacy of the institution, but also on the very constitutionality of the „decisions” rendered by the “new” court in 2017. Together these two concerns raise most fundamental question: how the destruction of the Court impacts on the ordinary judges? 

2017 in retrospect

There are five lasting scars that transformed the institutional identity of the Court in 2017 and beyond. First, the Court is composed of judges that have been elected unconstitutionally and forced on the bench by the parliamentary majority per fas et nefas. At least three of the current judges should have never been sworn in the by the President since there was no vacancy on the bench at the time of their “appointment”. Unfortunately, blunt political power prevailed over the law.

Second, despite the unconstitutionality of their mandate, these judges have not only been sitting on the cases decided by the Court in 2017, but they have also validated now post facto their own election to the Court. One of them became Vice-President of the Court.

Third, the new President of the Court – Judge J. Przyłębska – has been elected (or rather rushed in) to be President of the Court, and then sworn in by the President of the Republic, in clear violations of applicable rules.

Fourth, the intricate statutory schemes (on this, see here and here) adopted by the new majority in 2016 brought the Court to heel and paralyzed its day-to-day functioning. Cases are decided in camera. The assignment of cases to individual judges is opaque and depends on the whim and caprice of a fake President. She tailors the composition of the bench to the political importance of cases. The more important the case from the perspective of political majority, the more likely that it will be heard exclusively by judges selected by the new parliament. The Court decides less and less cases, as the cloud of unconstitutionality hangs over its decisions. Over the course of 2017 the new judges have repeatedly shown that they see themselves as an extension of the will of the Parliament.

Fifth, unwanted judgments of “pre-2017 Court” have been removed from the Court’s website. Indeed, an Orwellian world in the middle of the EU. What was once unthinkable has happened and become the new normal of Polish quasi-constitutionalism.

From „existential” to „subversive” jurisprudence

There is a quality difference between 2015/2016 and 2017. 2015/2016 was constitutionally important with the Court fighting off the political assault and building important „existential jurisprudence” centered around the rule of law, independence of the judiciary and separation of powers. 2017 saw a new face of constitutional review. When the Court was finally taken over by the ruling party, Polish politics of resentment entered into a new phase: consolidating the grip on the captured state: media, ordinary courts, Supreme Court, National Court of the Judiciary. The list goes on.

A fake Court with loyal judges in place, and led by a „fake President”, was entrusted a crucial role in the process. Looking back on 2017, one can see, using Ziblatt’s and Levitzky’s evocative metaphor, how „capturing of the referees” entails three interconnected processes: i) weaponising the judicial review, and using it against the opposition; ii) instrumentalizing the constitutional review in the process of implementing the political agenda; and finally, iii) judicial rubber-stamping of all unconstitutional schemes placed before the Court by the ruling majority.

As a result, the „existential jurisprudence” (on the term see also here) of 2015-2016 has been transformed into „subversive jurisprudence”. The latter is focused on sanctioning the destruction of the last remaining elements of the rule of law in Poland. The fake Court has been used in a legislative scheme to bring down a constitutional body – the National Council of the Judiciary Council – and replace it with government loyalists, to prepare ground for the hostile takeover of the Supreme Court, and, yes, to finally sanction the capture of the judicial review by deciding that three unconstitutional judges were constitutional after all. Of course the fake judges were sitting and deciding in their own case. In all these cases, the new Court has played its new role to perfection and delivered in accordance with the expectations of its political masters. Welcome to Polish version of the constitutional review A.D. 2017.

What about the judges, then ?

„Existential jurisprudence” of the Court still has a role to play, even if only symbolic. The latter is important because as T. Ginsburg has rightly argued: “Only when there is agreement on what constitutes a violation and mutual expectations that citizens will in fact enforce the rules will democracy emerge and be sustained […] in some limited conditions, court decisions can survive as focal points in helping citizens coordinate, and force the autocracy to liberalize […] a court decision can provide clarity as to what constitutes a violation of the rules by the government. […]”. As important as it is, symbolic jurisprudence is not enough, though.

The fascinating problem of judicial resistance has been in vogue recently. Yet resistance by judges takes on a special meaning when the discussion turns not simply around laws that are unjust, but rather laws that strike at the very core of a democratic state governed by the rule of law. These are laws whose very democratic pedigree could be questioned. Such laws are “wicked” in a systemic sense. I agree with professor A. Barak that „when the criticism is transformed into an unbridled attack public confidence in the courts may be harmed, and the checks and balances that characterize the separation of powers may be undermined. When such attacks affect the composition or jurisdiction of the court, the crisis point is reached. This condition may signal the beginning of the end of democracy. What should judges do when they find themselves in this tension? Not much. They must remain faithful to their judicial approach; they should realize their outlook on the judicial role. They must be aware of this tension but not give in to it. Indeed, every judge learns, over the years, to live with this tension”. We must also ask, then, what happens to judges facing laws that undermine the democratic credentials of the state? Here, A. Barak continues on more ominous note: “[…] Breaking the rules of the game crosses the red line, and is likely to take on many forms: wild and unrestrained criticism of the judgment, attacks on the very legitimacy of the judicial decision, recommendations […] to narrow the scope of the courts’ jurisdiction, threats to create new courts in order to overcome undesirable judgments, attempts to increase the political influence on judicial appointments and promotions, calling for prosecution of judges […], demands to terminate judicial appointments […] All these lead, in the end, to the breakdown of the relationship. This is the beginning of the end of democracy”.

How should then Polish judges respond, now that the Court is being used in the day-to-day politics, and keeps delivering goods for its political masters?

We have to be unequivocal here. Any future decisions taken by the „fake Court” with the “fake” judges sitting on the cases will be marred by invalidity. The ordinary judges will have a valid claim not to follow these rulings. Should they decide to follow decisions made with the participation of, or made by, “fake” judges, their own proceedings will be vitiated by invalidity.

The Minister of Justice did not waste time and threatened that ordinary judges who refuse to follow the rulings of the “new” constitutional court staffed by judges loyal to the ruling party, will be prosecuted. These are all dramatic consequences entailed by the change in constitutional narrative in Poland. What Poland needs today is the constitutional jurisprudence of ordinary courts that counter the unconstitutional activities and existence of the fake constitutional court.

Such „emergency constitutional review” does not respond simply to legal change, or to tension between the branches. It staves off a systemic revolution brought about by an unconstitutional capture of institutions. As such, it is an instance of judicial meta-resistance. The defense of constitutional integrity and values is more important than the protection of separation of powers. The latter should be understood as instrumental for the realization of the former, and when necessary, adapted to the exigencies of the times. Otherwise, separation of powers would be flouted at will by the majority with the argument that such actions are justified as part of the classical separation of powers (parliament legislates, the executive implements, judges apply the law).

Should we agree with this narrative, we would be in fact allowing the enemies of democracy to dictate their skewed understanding of the separation of powers. When constitutional review faces systemic and permanent dysfunction for whatever reasons, emergency review by ordinary judges must be resorted to. Such review is defined by complementarity vis-а-vis the Court’s power of review. It accompanies, and runs in parallel with, the Court’s constitutional review, and does not replace it. Such review is instrumental to securing respect for the Constitution’s status as the supreme law of the land. Constitutional defiance by the parliamentary majority must be countered by intra-constitutional resilience and trigger self-defending mechanisms from within the Constitutional text.

It is important to make clear here that our call for “emergency constitutional review” by the ordinary courts does not question the Court’s monopoly of constitutional review, but rather aims at shielding the constitutional order from being further weakened and disassembled. Emergency judicial review plays an important mobilizing role. It can act as a catalyst function for pro-democracy initiatives, bringing a sense of vindication and recognition to those who oppose the mainstream anti-democratic politics and who demand a return to respecting democratic values. “Calling a spade a spade” by the judiciary would provide a crucial focal point of societal resistance and act as a source of constitutional fidelity. Judicial pronouncement in defense of the constitutional order would transform into a symbolic point of reference as a source of loyalty to the oppressed constitutional values. Clarity about the constitutional state of play and constitutional interpretation would help us moving forward.

„Judicial space”. Is there some left ?

As a result, the relevant question today is no longer whether emergency review (for the full argument see here)  is warranted, but rather whether ordinary judges would be willing to accept their new role. The judges are faced with the most dramatic choice and dilemma here: either to fall in line and bury their heads in the sand by applying the rulings of the „new” Court that are vitiated by unconstitutionality, or face up to their own mandate of being bound only „by the statute and the Constitution”, and apply directly the constitution (not the suspicious decisions of the “new” Court) instead.

What about the cases in which a decision was taken by the fake constitutional judges, but is in favor of an individual? An example of such a situation is provided by a rare „routine” cases 37/15 decided by the Court on December, 20, 2017. Even though, the Court’s came down in favour of the constitutional right to a fair trial and and access to court, the case was decided with the participation of unconstitutional judges. The administrative judges will thus now face a choice: follow the judgment, knowing that it might risk the validity of their own proceedings, or, follow constitutional principles, and derive protection for the entrepreneurs directly from the text of the Constitution, rather than from a constitutionally doubtful judgment (For bringing this case to my attention, I am grateful to D. Dominik-Ogińska, Judge of the Regional Administrative Court in Wrocław). Should an ordinary judge follow such a decision and protect individual rights? Framing its decision in terms of the Constitution could, at least, create an impression that a judge follows the Constitution, not the decision itself. At times it might be difficult to discern where the Constitution starts, and the invalid decision stops, and vice versa.

These concerns and challenges go beyond the normative. They raise fundamental questions of judicial ethos. There is no ready-to-use formula to address them in abstracto for each and every case. Each judge in his own consciousness will have to decide how to decide, have courage to defend the humiliated Constitution, and, most importantly, be ready to face the consequences.

Polish judges might not even fully realise that right now they face the most fundamental challenge post-1989. The legislation might have been already passed to bring the judiciary to heel. The National Council for the Judiciary had been captured. We know all this. My argument here is different. At the end of the day institutions are about people sitting on them, not the other way around. I repeat after O. Kirchheimer who in his classic 1961 book „Political Justice” argued: „As long as the institution persists, the ,judicial space’, though it may be reduced, cannot be completely abolished”. Judicial space survives the institutions as long as there will be judges willing to deliver justice according to the law, rather then political exigency. Judges who believe that judging is not just a profession, but rather a way of life. Judges who swear their allegiance to the Constitution, and not to any transient political power. Judges who put aside short-term calculations and who understand that the importance of independent adjudication transcends the moment and fleeting expectations of „here and now”. Judges who understand that one day, they will be asked: How did you decide when things had not been going as planned? Did you have the courage and strength to say ,no’ when everybody around said ,yes’?

Without a robust and vibrant judicial space, even the strongest institutions must perish. While politicians might take away institutional paraphernalia and capture the institutions, they will never succeed in taking ownership of „the judicial space” of a true judge. This is so because judicial space belongs to each, and every judge. He is the master of his own space, and the court room is his kingdom, no matter what political masters say and do at any given moment.

However, in order to deliver on the promise of the ethos, a judge must never forget, that his judicial space will only last as long as he feels a strong commitment to the constitutional document, to the law he is bound to apply, and to the people he is obligated to protect. Every time he is ready to stand up for his judicial space and protect it, he passes the most difficult of exams – an exam of decency. If there is one thing authoritarians are afraid of, this is it: a „judicial space”, a true reservoir of judicial independence, courage and constitutional fidelity.

No matter how hard authoritarians try, they will never capture this innermost and most cherished aspect of the judicial craft. What does the future hold, then? It will be marked either by emergency constitutional review by ordinary judges and growing judicial space of independent judging against all odds, or … (let’s hope not) their abdication in the face of constitutional emergency. In the latter case, there will nothing left to write about in 2017, except for new episodes in the constitutional debacle, and the fake Court’s shameful role in the process. In Poland today, the „body” of the institutions has been already taken over by the political. The fates of the „soul” and the „judicial space” remain yet unknown. Time can only tell what happens to them… This is a question every judge must keep asking himself right now.

With the Associação Sindical dos Juízes Portugueses judgment, the Court of Justice of the European Union (CJEU) lately reacted to the current crisis of rule of law in certain EU Member States. On the basis of Article 19(1) TEU, it declares itself competent to evaluate the guarantee of independence of those national judges who apply and interpret EU law. While the case itself was concerned with temporary cuts to the remuneration of Portuguese judges, the ruling has far-reaching consequences for the Commission proceedings against Poland. In light of the ruling, the European Commission does not have to restrict itself to the slightly modified “Hungarian scenario” hitherto preferred by it. It may instead once again analyse the scope of charges with regard to the Common Courts System Act (CCS Act), and may even lodge a new complaint concerning i.a. the Act on the Supreme Court.

(1) It is remarkable how quickly and flexibly the CJEU has reacted in its legal decisions to the crisis of rule of law in certain EU Member States. Above all, it has built up in its case law a catalogue of elements constituting the rule of law within the meaning of Article  2 TEU, such as the principle of separation of powers (C-477/16 Kovalkovas), the principle of effective judicial protection (C-72/15 Rosneft), and effective application of EU law (C-441/17 R Commission v. Poland). Following this last order of the CJEU, the CJEU apparently does not hesitate to issue courageous decisions securing the effectiveness of EU law. For instance, by way of interpretation of Article 279 TFEU, the CJEU demanded penalty payments for logging operations in Poland’s Puszcza Białowieska protected forest that violated an earlier ruling.

The Associação Sindical dos Juízes Portugueses decision is undoubtedly just as far-reaching and may have a precedent-setting character of constitutional importance for the European Union and EU Member States. For the first time the CJEU stated that the principle of effective judicial protection enshrined in Article 19(1) TEU enables – under certain conditions – a review of national legislation concerning the independence of judges guaranteed also in Article 47 of the Charter of Fundamental Rights of the EU (ChFR). This type of control will be possible if national courts can interpret or apply EU law.

(2) In Associação Sindical dos Juízes Portugueses, the CJEU interpreted this provision quite broadly. The national court (Tribunal de Contas), whose judges challenged the cuts in remuneration, has the competency to decide cases concerning funds coming from the EU, as well as issues related to public expenditure or the public debt. The fact that the national court had the competency to potentially apply or interpret EU law was sufficient to accept that the guarantees concerning its independence are covered by EU law according to Article 19(1) TEU. For the CJEU to be competent to evaluate the independence of a national court, an EU element in its sources of law (e.g. a directive or one of the freedoms of the EU internal market) is thus not necessary. The mere possibility of applying EU law already triggers Article 19(1) TEU. In particular, however, the CJEU did not accept the claimants’ reasoning that the political origins of the remuneration cut in the EU excessive budget deficit procedure and its financial assistance programme for Portugal were important in this regard.

(3) The judgement Associação Sindical dos Juízes Portugueses thus shows that the CJEU has an express Treaty competence to evaluate judicial systems in  EU Member States, while the courts’ structure of the Member States should be prepared ‘in advance’ for a situation where they are entrusted to decide also cases concerning EU law. This assumes that the courts meet the standard of independence required by EU law (Article 19(1) TEU/Art. 47 ChFR). In the opinion of the CJEU, Article 19 TEU gives a concrete expression to the value of the rule of law stated in Article 2 TEU and secures the mutual trust between the courts of the Member States. The CJEU also emphasized the key role played by national courts for the EU system of legal protection, application and respect for EU law, as well as for the protection of individuals (i.e. inter alios, natural persons and legal entities). Since individuals have the right to challenge each act concerning the application of EU law, Member States have the task, pursuant to the principle of loyalty (Article 4(3) TEU), to establish a system of remedies and procedures to ensure effective judicial protection. In “areas covered by EU law”, in the meaning of Art. 19 (1) TEU, national courts must therefore meet EU standards of independence. It seems to follow from Associação Sindical dos Juízes Portugueses that the CJEU will evaluate differently the scope of application of Art. 19(1) TEU and Art. 51 ChFR. This is because Art. 19(1) TEU covers also situations in which national courts may potentially apply EU law, whereas the ChFR pertains only to cases of actual application of EU law by the Member States.

(4) The judgment Associação Sindical dos Juízes Portugueses opens new prospects for the European Commission in its fight for the rule of law in Poland with regard to infringement proceedings (Art. 258 TFEU). This judgment may induce the Commission above all to once again consider the scope of charges which the Commission intends to bring against Poland in relation to the Act on Common Courts (ACC). As I have written previously, the brief press release of the EC from 20.12.2017 reveals the charges which the Commission intends to bring against Poland in the proceedings for a declaration of an infringement of the obligations following from the Treaties. First, the Commission alleges a breach of the ban on gender discrimination in the case of retirement age of judges. Second, it sees a breach of the independence of the national courts (Art. 19 (1) TEU/Art. 47 ChFR), because the Minister of Justice can decide at his own discretion on the continued holding of a position by a judge who has reached retirement age. With regard to these charges, the EU element (and the possibility of an evaluation of independence according to EU standards) is found above all in Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

(5) In light of earlier press releases, at the prejudicial stage of the Art. 258 TFEU proceedings, the Commission, pointing to a breach of Art. 19 (1) TEU/Art. 47 ChFR, also voiced reservations concerning the provisions of the ACC which allow the Minister of Justice to appoint and remove, at his discretion, presidents and vice presidents of courts. In the release of 12.09.2017 in relation to the issue of the reasoned opinion the EC stated that the “discretionary power to dismiss and appoint Court Presidents allows the Minister of Justice to exert influence over these judges when they are adjudicating cases involving the application of EU law”. However, in the release issued in relation to the initiation of proceedings before the CJEU (20.12.2017), the EC dropped the reference to this national regulation without giving reasons. Under the hitherto existing case law of the CJEU, it would have indeed been difficult to show the precise EU element, without which an evaluation would not have been possible. Unlike in the other charges which relate directly to specific secondary legal acts (directives), the Commission can only base its charge on the general role of the national courts in the EU legal system.

The judgment Associação Sindical dos Juízes Portugueses opens up a new perspective in this regard as the CJEU accepted that it is precisely the general role of the national courts in the EU legal system, related to the application and interpretation of EU law, especially as part of the preliminary ruling procedure in cooperation with the CJEU, which constitutes sufficient justification to examine the case as regards fulfillment of the requirement of independence following from Art. 19 (1) TEU/Art. 47 ChFR. Although in itself the appointment and removal of court presidents as regulated by the ACC falls within the scope of the exclusive competence of Member States, this aspect of the ACC can now also be examined under EU legal standards.

(6) The judgment Associação Sindical dos Juízes Portugueses may also constitute an opportunity for the Commission to approach – in proceedings under Art. 258 TFEU – the relation between judiciary and executive powers in a more comprehensive way. The hitherto existing position of the Commission may be evaluated as fragmentary, as opposed to the evaluation presented by the Venice Commission which in its opinion of 11.12.2017 argued that the competencies of the Minister of Justice should not be analysed independently from each other, but in their systematic context (taking into account other ministerial powers with regard to judges and court presidents). In particular, the merger of the offices of Minister of Justice and Prosecutor General raised concern. The conflation of functions and interests, as well as increasing powers in both creates a serious risk for the independence of the judicial system in Poland, according to the Venice Commission. In light of the recent ECHR decision in the case Baka v. Hungary, the removal of a court president from his function may indicate a critical threat to the independence of the judicial powers. Showing this problem in a broader context could strengthen the argumentation of the European Commission in proceedings under Art. 258 TFEU.

(7) Moreover, the judgment Associação Sindical dos Juízes Portugueses may allow the Commission to carry out infringement proceedings under Art. 258 TFEU with regard to a broader range of charges covered by the Recommendations of the Commission regarding the Rule of Law in Poland and by the motion of the Commission filed under Art. 7 (1) TEU, such as the new rules concerning the National Council of the Judiciary. In particular, the case Associação Sindical dos Juízes Portugueses enables proceedings with regard to the Act on the Supreme Court which will soon enter into force. Pursuant to that act, the retirement age of Supreme Court (SC) judges was reduced from 70 to 65 years, which will affect about forty percent of the present SC judges. In the opinion of the Commission, this will give rise to a problem in particular in the context of the principle of the irremovability of judges. What is more, the possibility of a SC judge continuing to hold his/her position will be dependent upon a discretionary decision of the President of the Republic of Poland. He may twice consent to the continued performance of the function, each time for 3 years. This gives rise to a similar problem concerning the independence of courts in light of Art. 19 (1) TEU and Art. 47 ChFR EU, as with regard to judges of common courts, which problem the EC has already made the subject of proceedings under Art. 258 TFEU. However, in the case of SC judges so far there has been no possibility to introduce the EU element following from Directive 2006/54/EC like in the case of judges of common courts as the SC Act does not discriminate with the retirement age as regards gender since female SC judges can voluntarily retire at 60 years of age. Also, basing the charge on a breach of the ban on discrimination for reason of age, as in the Hungarian case (C-288/12), could be difficult. To recall, Hungary removed the infringement identified by the CJEU concerning the lowering of the retirement age of judges from 70 to 62 years, increasing this age to 65, which the Commission no longer questioned. The judgment Associação Sindical dos Juízes Portugueses opens up for the Commission new possibilities to evaluate the principles of effective judicial protection, independence of judges and their irremovability from office beyond discrimination based on gender or age.

(8) What is more, the experience with the Hungarian cases also showed that the departure of judges from the profession and performance of the functions in view of retirement age gives rise to practically irreversible effects regarding a return to the profession and the functions performed. In the case of the Polish SC, inter alia, the First President of the SC will in this way lose her function, as well as many experienced judges. Drawing conclusions from the Hungarian case, for the effectiveness of a possible intervention by the Commission in the context of the SC Act (but also on the Common Courts Act) of key importance will be whether the Commission files a motion for interim measures by way of a suspension of application of the statutory regulations until such time as the case has been decided on by the CJEU. This is because with regard to Hungary the effectiveness of the judgment of the CJEU declaring an infringement, though issued in an accelerated procedure, proved negligible.

(9) Taking into account the potentially weak effectiveness of the procedure under Art. 7 TEU, the Commission could successfully avail itself of Art. 258 TFEU, which leaves no room for political discretion. The Commission’s press release of 20.12.2017 showed that the Commission did not intend, at that point, to initiate courageous and precedent-setting proceedings under Art. 258 TFEU before the CJEU in the fight for the rule of law. But now in Associação Sindical dos Juízes Portugueses, the CJEU opened the door for the Commission to take this new and more effective path. The clock is ticking, in particular regarding the SC judges. It depends only on the Commission whether it will allow that the values expressed in Art. 2 TEU be merely set down on paper, or whether it will attempt to convince the CJEU that these values have – in the case of Poland – been breached. The green light shown by the CJEU could not be greener.

Die Rechtsstaatlichkeitskrise in Polen rückt zunehmend in den Fokus der Gerichte. Das gilt auch für den EuGH und die Gerichte anderer, auf den ersten Blick nicht direkt betroffener EU-Mitgliedstaaten. Eine Entscheidung des irischen High Courts vom 12. März 2018 zeigt die übergreifenden Folgen der „polnischen“ Rechtsstaatlichkeitskrise in bislang ungekannter Prägnanz auf. Sie verdeutlicht, dass die Aushöhlung richterlicher Unabhängigkeit durch die politische Führung eines EU-Mitgliedstaats keineswegs in ihren Wirkungen auf diesen einen Mitgliedstaat begrenzt bleibt. In einem Verfassungsverbund, der von gegenseitiger Öffnung und Vertrauen gerade auch zwischen den Mitgliedstaaten untereinander geprägt ist, sind alle anderen Mitglieder von einer Rechtsstaatlichkeitskrise gleichsam mitbetroffen. Die Botschaft lautet: Die Negation rechtsstaatlicher Grundsätze, wie sie derzeit in Polen zu beobachten ist, rüttelt an den Grundfesten der europäischen Rechtsgemeinschaft. Sie kann als solche auch außerhalb Polens nicht ignoriert werden.

Politische v. gerichtliche Rechtsstaatlichkeitsaufsicht

Diese einleitende Feststellung scheint zunächst nicht mehr als ein Allgemeinplatz zu sein. Indes ist der europarechtliche Zugriff auf nationale Rechtsstaatlichkeitskrisen alles andere als einfach. Gewiss, es gibt das sog. Artikel-7-Verfahren mit seinen verschiedenen Eskalationsstufen. Der Rat kann mit der Mehrheit von 4/5 seiner Mitglieder (die Stimme des betroffenen Staates herausgerechnet) „die eindeutige Gefahr einer schwerwiegenden Verletzung“ der Grundwerte aus Art. 2 EUV durch einen Mitgliedstaat feststellen. Den für eine solche Feststellung notwendigen begründeten Vorschlag hat die Europäische Kommission im Dezember 2017 unterbreitet, jüngst unterstützt durch eine Entschließung des Europäischen Parlaments. Eine Entscheidung des Rates steht noch aus. Für die Verhängung von Sanktionen, wie die Aussetzung von Stimmrechten, bedarf es jedoch eines einstimmigen Beschlusses des Europäischen Rates (die Stimme des betroffenen Staates wiederum herausgerechnet). Ein solcher Vorstoß scheitert nicht zuletzt dann, wenn sich zwei Mitgliedstaaten gegenseitig eines Vetos versichern, etwa Polen und Ungarn. Darin zeigt sich zugleich das große Dilemma des Artikel-7-Verfahrens. Es ist, wie auch Art. 269 AEUV in prozessrechtlicher Hinsicht zeigt, ein im Kern politisches Verfahren.

Hier bringt die Entscheidung des irischen High Court frischen Wind: Sie adressiert die Rechtsstaatlichkeitskrise aus einer dezidiert gerichtlichen bzw. „rights-based“ Perspektive. Das politische Artikel-7-Verfahren wird in aller Klarheit von der gerichtlichen Evaluierung von Rechtsstaatlichkeitsdefiziten abgegrenzt (Rn. 115-119). Und der europarechtliche Ball wird gezielt dorthin gespielt, wo er hingehört: in das Feld des EuGH.

Der Aufhänger: Europäischer Haftbefehl und gegenseitiges Vertrauen

Konkret entschied der High Court, das Verfahren auszusetzen und dem EuGH die Frage vorzulegen, ob Auslieferungen nach Polen angesichts der dort vorherrschenden systemischen Verletzungen der Rechtsstaatlichkeit künftig unterbleiben müssen. Hintergrund ist ein auf drei Europäische Haftbefehle gestütztes Auslieferungsersuchen der polnischen Justizbehörden in Bezug auf einen in Irland inhaftierten Drogendealer mit polnischer Staatsangehörigkeit.

Die Auslieferung auf Grundlage eines Europäischen Haftbefehls ist ein Dauerbrenner des europäischen Verfassungsrechts. Zahlreiche nationale Verfassungs- und Höchstgerichte haben sich im Laufe der Zeit damit befasst, das BVerfG eingeschlossen. Auch mehrere berühmte EuGH-Entscheidungen stehen im Zusammenhang mit dem Rahmenbeschluss über den Europäischen Haftbefehl, darunter die Entscheidungen Melloni und Aranyosi u. Căldăraru. Häufig ging es darum, unter welchen Voraussetzungen die Auslieferung in den ersuchenden EU-Mitgliedstaat infolge von Grundrechten zu unterbleiben hat. Hier zeigt sich die Grundrechtssensibilität des Raums der Freiheit, der Sicherheit und des Rechts.

In jüngerer Zeit rückte speziell die Frage in den Vordergrund, wann die auf dem Grundsatz gegenseitigen Vertrauens beruhende Vermutung der mitgliedstaatlichen Grundrechtstreue als widerlegt anzusehen ist. Auch das ist keine einfache Frage. Denn es geht letztlich darum, inwieweit ein Gericht des Mitgliedstaates A im Zuge einer Auslieferungsentscheidung die (künftige) Einhaltung von Unionsgrundrechten in Mitgliedstaat B prüfen soll, also eines Staates, der im Anwendungsbereich des Unionsrechts selbst an Unionsgrundrechte gebunden und zudem Vertragsstaat der EMRK ist.

In Aranyosi u. Căldăraru hat der EuGH ein (temporäres) Auslieferungsverbot jedenfalls dann angenommen, wenn ein nationales Gericht aufgrund qualifizierter Informationen ein echtes Risiko für eine unmenschliche oder erniedrigende Behandlung i.S.d. Art. 4 GRCh im Zielstaat feststellt. Bereits der ausliefernde Mitgliedstaat handelt also grundrechtswidrig, wenn er eine Person sehenden Auges qua Auslieferung der Verletzung einer Elementargarantie in einem anderen Mitgliedstaat aussetzt. Das gilt nach dem EuGH vor allem deshalb, weil der mit Art. 3 EMRK wortgleiche Art. 4 GRCh eine absolut, d.h. abwägungsfest geschützte Kerngarantie verbürgt. Die Grundrechtsverantwortlichkeit wird so präventiv auf den ausliefernden Mitgliedstaat vorverlagert. Vergleichbare Überstellungsverbote hat der EuGH auch im Bereich des europäischen Asylrechts anerkannt, wobei deren genaue Voraussetzungen umstritten bleiben – nicht zuletzt angesichts der jüngeren Rechtsprechung. Das betrifft übrigens auch das Verhältnis zur Rechtsprechung des EGMR.

Gegenseitiges Vertrauen und Rechtsstaatlichkeitskrise

Wichtig ist in unserem Zusammenhang, dass der irische High Court gerade kein echtes Risiko einer Verletzung von Art. 4 GRCh durch Polen sieht. Die zentrale Sorge des Gerichts gilt vielmehr dem Umstand, dass durch die systemische Verletzung der Rechtsstaatlichkeit die Grundbedingungen für einen fairen Strafprozess in Polen generell nicht mehr gewährleistet seien. Es geht also, rechtsdogmatisch gewendet, um die Gefahr einer Verletzung des Fair-trial-Grundsatzes nach Art. 47 Abs. 2 GRCh bzw. Art. 6 EMRK. In beeindruckender Gründlichkeit arbeitet der irische High Court die auch auf diesem Blog vielfach behandelten Missstände infolge der polnischen Justizreformen der vergangenen Jahre auf. Dabei stützt sich das Gericht vor allem auf den begründeten Vorschlag der Kommission und die darin enthaltene Dokumentation des gescheiterten Rechtsstaatlichkeitsdialogs sowie die Berichte der Venice Commission (Rn. 46 ff., 122 ff.).

Der High Court lässt keinen Zweifel daran, dass er von einer „absichtlichen, kalkulierten und provokativen gesetzlichen Demontage der Unabhängigkeit der Justiz“ in Polen ausgeht (Rn. 123). Die systemische Dimension der Verletzung rechtsstaatlicher Grundsätze folgt für den High Court dabei aus der Kumulation der zahlreichen polnischen „Justizreformen“ der vergangenen Jahre – rechtswidrige Besetzung höchstrichterlicher Richterstellen, organisatorische Lahmlegung des Verfassungsgerichts, Nichtveröffentlichung verfassungsgerichtlicher Entscheidungen im Amtsblatt, Ausweitung der Befugnisse des Justizministers eingedenk disziplinarischer Durchgriffsbefugnisse und der Personalunion mit dem Generalstaatsanwalt,  usf.

Grundrechtliches Auslieferungsverbot?

Kann aus alledem aber ein grundrechtliches Auslieferungsverbot im konkret-individuellen Fall abgeleitet werden? Das ist die entscheidende Frage, die der EuGH nun beantworten muss. Die Schwierigkeiten des Ansatzes des High Courts zeigen sich erst auf den zweiten Blick. Sein dezidiert im Fair-trial-Grundsatz wurzelnder und somit grundrechtlich radizierter Ansatz (vgl. Rn. 41 ff., 121) könnte sich als Achillesferse erweisen.

Es ist schon fraglich, ob die in der bisherigen EuGH-Rechtsprechung aufgestellten Voraussetzungen für ein Auslieferungsverbot – ihre Übertragbarkeit auf den vorliegenden Fall einmal vorausgesetzt – vorliegend überhaupt erfüllt sind. In Aranyosi u. Căldăraru gab der EuGH in Bezug auf Art. 4 GRCh (!) einen zweistufigen Test vor. In einem ersten Schritt müssen qualifizierte Informationen die Annahme „systemischer oder allgemeiner“ Mängel belegen. Ist eine solche Gefahr aufgrund genereller, über den Einzelfall hinausgehender Umstände belegt, muss in einem zweiten Schritt geprüft werden, ob und wie sich dieses abstrakt-generelle Risiko auch im konkreten Fall individuell realisieren kann. Genau das aber ist im Ausgangsfall keineswegs gesichert.

Deshalb regt der High Court explizit an, von Aranyosi u. Căldăraru dergestalt abzuweichen, dass dem Betroffenen nicht die Beweislast darüber aufgebürdet werden dürfe, wie sich die massiven Defizite des Justizsystems konkret auf seinen individuellen Fall auswirken (Rn. 141 f.). Das leuchtet insoweit ein, als in einem Justizsystem, in dem ein mit Disziplinarrechten gegenüber der Richterschaft ausgestatteter Justizminister zugleich die oberste Strafverfolgungsbehörde ist, letztlich kein Strafverfahren mehr vor willkürlichen Übergriffen der Politik sicher ist (vgl. Rn. 128).

Die Frage bleibt aber, ob der EuGH im Bereich eines nicht-abwägungsfesten Grundrechts (Art. 47 Abs. 2 GRCh) weniger strenge Anforderungen an ein Auslieferungsverbot stellen wird, als im Bereich eines abwägungsfesten (Art. 4 GRCh). Daran bestehen nicht nur wegen der Strukturverschiedenheit beider Normen Zweifel. Ein beim Fair-trial-Grundsatz ansetzendes Überstellungsverbot müsste nämlich auch konsequenterweise in anderen Bereichen jenseits der Rechtsstaatlichkeitskrise greifen. Dabei besteht stets die Gefahr, die Vorverlagerung des Grundrechtsschutzes auf den überstellenden bzw. ausliefernden Staaten zu überdehnen und hierdurch falsche Anreizstrukturen zu setzen. Das zeigt sich besonders deutlich im Asylrecht. Dehnte man die Vorverlagerung des Grundrechtsschutzes dort unverhältnismäßig weit aus,  hätte es der „Problemstaat“ in der Hand, die ihm zukommende grundrechtliche Primärverantwortung (z.B. für die Behandlung von Asylantragstellern) durch Absenkung der eigenen Standards auf andere Staaten abzuwälzen. Eine grundrechtliche Vorverlagerung muss daher die Ausnahme bleiben. Deshalb erscheint es auch eher unwahrscheinlich, dass der EuGH einen Weg einschlagen wird, der zu einem allgemein am Fair-trial-Grundsatz ansetzenden Auslieferungsverbot führt.

Gegen eine Übertragung der Art.-4-GRCh-Rechtsprechung auf Art. 47 Abs. 2 GRCh spricht zudem, dass selbst der EGMR ein auf Art. 6 EMRK gestütztes Auslieferungsverbot nur unter engsten Voraussetzungen anerkennt, nämlich nur im Falle einer „offenkundigen Verweigerung eines fairen Verfahrens“ (flagrant denial of justice). Darin kommt nicht zuletzt der qualitative Unterschied zwischen Art. 6 EMRK und Art. 3 EMRK zum Ausdruck. Der High Court hat das Problem gesehen, gibt aber im Zuge eines distinguishing der bisherigen Rechtsprechung zu erkennen, dass diese Schwelle seiner Auffassung nach vorliegend erreicht sei (Rn.  u. 138-140).

Es würde deshalb nicht verwundern, wenn der EuGH in seiner Antwort eine gewisse Vorsicht hinsichtlich eines auf den Fair-trial-Grundsatz bezogenes Auslieferungsverbot an den Tag legen würde.

Auslieferungsverbot wegen Verstoß gegen Art. 19 Abs. 1 UAbs. 2 EUV?

Mit seiner bahnbrechenden Entscheidung in Sachen Associação Sindical dos Juízes Portugueses steht dem EuGH aber ohnehin ein passgenauerer Ansatz zur Verfügung. In dieser (erst zwei Wochen alten) Entscheidung, die der irische High Court noch nicht ausdrücklich rezipiert hat, stellte der EuGH die grundlegende Bedeutung der richterlichen Unabhängigkeit nationaler Gerichte als Gelingensbedingung der europäischen Rechtsgemeinschaft insgesamt heraus.

Normativer Anknüpfungspunkt ist Art. 19 Abs. 1 UAbs. 2 EUV. Danach schaffen die Mitgliedstaaten die erforderlichen Rechtsbehelfe, um einen wirksamen Rechtsschutz in den vom Unionsrecht erfassten Bereichen zu gewährleisten. Unter Zusammenführung zahlreicher Rechtsprechungslinien machte der EuGH nunmehr deutlich, dass der in Art. 19 Abs. 1 UAbs. 2 EUV kondensierte allgemeine Rechtsgrundsatz gerade auch die Unabhängigkeit der nationalen Gerichte garantiert, die u.a. die Nichtabsetzbarkeit der Richter, die operative Autonomie und den Schutz vor äußerem Druck umfasst. Zwar kam die Entscheidung vom Ergebnis her noch eher unspektakulär daher: Eine Verletzung von Art. 19 Abs. 1 UAbs. 2 EUV durch das streitgegenständliche portugiesische Sparprogramm vermochte der EuGH nicht zu erkennen. Entscheidend ist aber der über Art. 19 Abs. 1 UAbs. 2 EUV eröffnete Zugriff des EuGH auf die Gewährleistung der richterlichen Unabhängigkeit auf nationaler Ebene. Das wird nicht nur für die Kommission im Kontext von Vertragsverletzungen interessant, sondern, wie der vorliegende Fall zeigt, auch für Vorabentscheidungsverfahren.

Natürlich steht Art. 19 Abs. 1 UAbs. 2 EUV in enger systematischer Verbindung zu Art. 47 Abs. 2 GRCh, was auch der EuGH betont. Dessen ungeachtet fokussiert der neue Ansatz des EuGH aber in spezifischer Weise auf die richterliche Unabhängigkeit als Grundbedingung für ein funktionierendes Gerichtssystem im europäischen Verfassungsverbund insgesamt. Anders gesagt, der über Art. 19 Abs. 1 UAbs. 2 EUV eröffnete Kontrollmaßstab ist ungleich passgenauer auf die systemischen Probleme der Rechtsstaatlichkeitskrise in Polen und anderorts zugeschnitten als die allgemein am Fair-trial-Grundsatz ansetzende Argumentation.

Auch wenn sich der irische High Court noch nicht ausdrücklich auf die neue Rechtsprechung des EuGH bezieht, nimmt er deren Grundton doch bereits auf: Die Einhaltung rechtsstaatlicher Grundsätze ist conditio sine qua non für gegenseitiges Vertrauen (Rn. 136). Wo dies nicht mehr gegeben ist, wird der justiziellen Kooperation innerhalb der EU ihre Grundlage entzogen. Es darf als wahrscheinlich gelten, dass der EuGH das im Ergebnis auch so sehen wird.

Fazit

Der große Verdienst der Entscheidung des irischen High Courts ist es, die Rechtsstaatlichkeitskrise aus einer dezidiert gerichtlichen, rechtsbasierten Perspektive zu adressieren und mit dem Problemfeld gegenseitigen Vertrauens zu verknüpfen. Es spricht viel dafür, dass sich die irische Vorlage als Anfang vom Ende des bis dato vorausgesetzten Vertrauens der EU-Mitgliedstaaten in die Integrität des polnischen Rechtsstaates erweisen wird. Dafür war es höchste Zeit.

The text below, dubbed the “Authoritarian Regime Survival Guide”, was published in social media in January 2017 in a series of improvised, spontaneous tweets, which reached 3 million views within one month. Their common element was their trademark signature, “- With love, your Eastern European friends”, and the accompanying hashtag #LearnFromEurope.

The Guide went viral in the US and many other countries, being translated into several languages, from Turkish to Filipino. It was printed on placards during anti-Trump protests, studied at two American universities, quoted by CNBC’s Joy Reid on national TV and recommended by former US Secretary of Labor Robert Reich.

Excerpts and summaries were published by various on-line media, but this is the first time it is published as a whole.

—

YEAR 1 Under Authoritarianism

What to Expect?

1. They will come to power with a campaign based on fear, scaremongering and distorting the truth. Nevertheless, their victory will be achieved through a democratic electoral process. But beware, as this will be their argument every time you question the legitimacy of their actions. They will claim a mandate from the People to change the system.

Remember – gaining power through a democratic system does not give them permission to cross legal boundaries and undermine said democracy.

2. They will divide and rule. Their strength lies in unity, in one voice and one ideology, and so should yours. They will call their supporters Patriots, the only “true Americans”. You will be labelled as traitors, enemies of the state, unpatriotic, the corrupt elite, the old regime trying to regain power. Their supporters will be the “People”, the “sovereign” who chose their leaders.

Don’t let them divide you – remember you’re one People, one Nation, with one common good.

3. They will subjugate state media, turning them into a propaganda tube. Then, through convoluted laws and threats they will attempt to control all mainstream media and limit press freedom. They will ban critical press from their briefings, calling them “liars”, “fake news”. They will brand those media as “unpatriotic”, acting against the People (see point 2).

Fight for every media outlet, every journalist that is being banned, censored, sacked or labelled an “enemy of the state” – there’s no hope for freedom where there is no free press.

4. They will create chaos, maintain a constant sense of conflict and danger. It will be their argument to enact new authoritarian laws, each one further limiting your freedoms and civil liberties. They will disguise them as being for your protection, for the good of the People.

See through the chaos, the fake danger, expose it before you wake up in a totalitarian, fascist state.

5. They will distort the truth, deny facts and blatantly lie. They will try to make you forget what facts are, sedate your need to find the truth. They will feed “post-truths” and “alternative facts”, replace knowledge and logic with emotions and fiction.

Always think critically, fact-check and point out the truth, expose ignorance with facts.

6. They will incite and then leak fake, superficial “scandals”. They will smear opposition with trivial accusations, blowing them out of proportion and then feeding the flame. This is just smokescreen for the legal steps they will be taking towards totalitarianism.

See through superficial topics in mainstream media (see point 3) and focus on what they are actually doing.

7. They will propose shocking laws to provoke your outrage. You will focus your efforts on fighting them, so they will seemingly back off, giving you a false sense of victory. In the meantime they will push through less “flashy” legislation, slowly dismantling democracy (see points 4 and 6)

Focus your fight on what really matters.

8. When invading your liberal sensibilities they will focus on what hurts the most – women and minorities. They will act as if democracy was majority rule without respect for the minority. They will paint foreigners and immigrants as potential threats. Racial, religious, sexual and other minorities will become enemies to the order and security they are supposedly providing. They will challenge women’s social status, undermine gender equality and interfere with reproductive rights (see point 7). But it means they are aware of the threat women and minorities pose to their rule, so make it your strength.

Women and minorities have to be ready to fight the hardest – reminding the majority what true democracy is about – and you must fight together with them.

9. They will try to take control of the judiciary. They will assault your highest court. They need to remove the checks and balances to be able to push through unconstitutional legislation. Controlling the judiciary they can also threat anyone that defies them with prosecution, including the press (see point 3).

Preserve the independence of your courts at all cost, they are your safety valve, the safeguard of the rule of law and the democratic system.

10. They will try to limit freedom of assembly, calling it a necessity for your security. They will enact laws prioritizing state events and rallies, or those of a certain type or ideology. If they can choose who can demonstrate legally, they have a legal basis to forcefully disperse or prosecute the rest.

Oppose any legislation attempting to interfere with freedom of assembly, for whatever reason.

11. They will distort the language, coin new terms and labels, repeat shocking phrases until you accept them as normal and subconsciously associate them with whom they like. A “thief”, “liar” or “traitor” will automatically mean the opposition, while a “patriot” or a “true American” will mean their follower (see point 2). Their slogans will have double meaning, giving strength to their supporters and instilling angst in their opponents.

Fight changes in language in the public sphere, remind and preserve the true meaning of words.

12. They will take over your national symbols, associate them with their regime, remake them into attributes of their power. They want you to forget that your flag, your anthem and your symbols belong to you, the People, to everyone equally. Don’t let them be hijacked. Use and expose them in your fight as much as they do.

Show your national symbols with pride, let them give you strength, not associate you with the tyranny they brought onto your country.

13. They will try to rewrite history to suit their needs and use the education system to support their agenda. They will smear any historical or living figure who wouldn’t approve of their actions, or distort their image to make you think they would. They will place emphasis on historical education in schools, feeding young minds with the “only correct” version of history and philosophy. They will raise a new generation of voters on their ideology, backing it with a distorted interpretation of history and view of the world.

Guard the education of your children, teach them critical thinking, ensure their open-mindedness and protect your real history and heritage.

14. They will alienate foreign allies and partners, convincing you don’t need them. They won’t care for the rest of the world, with their focus on “making your country great again”. While ruining your economy to fulfil their populist promises, they will omit the fact that you’re part of a bigger world whose development depends on cooperation, on sharing and on trade.

Don’t let them build walls promising you security instead of bridges giving you prosperity.

15. They will eventually manipulate the electoral system. They might say it’s to correct flaws, to make it more fair, more similar to the rest of the world, or just to make it better. Don’t believe it. They wouldn’t be messing with it at all if it wasn’t to benefit them in some way.

Oppose any changes to electoral law that an authoritarian regime wants to enact – rest assured it’s only to help them remain in power longer.

And above all, be strong, fight, endure, and remember you’re on the good side of history.

EVERY authoritarian, totalitarian and fascist regime in history eventually failed, thanks to the PEOPLE.

– With love, your Eastern European friends

—

Authoritarian Checklist

□ Win elections on fear & populist promises

□ Reclaim power for the People from the “elites”

□ Purge highest positions in key government institutions

□ Place cronies in positions of highest power regardless of their competence

□ Brush off any critical press as “fake”, “corrupt”, “acting against the People”

□ Bluntly lie to the People

□ Ban press from parliament/congress/White House or selectively limit their access

□ Limit press freedom & quietly take control of mainstream media

□ Label opposition & protesters as “traitors”, “elites trying to reclaim power”

□ Limit freedom of assembly

□ Fix highest court to be able to bypass Constitution “for the good of the people”

□ Limit minority & women’s rights

□ Ruin the economy to fulfil your populist promises in the short term

□ Alienate international partners and allies, “making your country great again”

□ Quietly fix electoral law under the disguise of making it better

□ Start over, until there’s nothing left…

– With love, your Eastern European friends.

—

6 RULES for Survival under an Authoritarian Regime

Rule 1

Don’t stay indifferent. It WILL concern you eventually. It will concern your family, your friends. Voice your objection IMMEDIATELY. Show them you care. RESIST.

Rule 2

They thrive on FEAR & IGNORANCE. Expose their scaremongering, show flaws in their arguments. Raise awareness, EDUCATE people around you. They will try to distort FACTS, rewrite history. DON’T LET THEM.

Rule 3

Organize protest movements, mobilize civil society. They’re well organized, so should you be. FLOOD THE STREETS. They WILL back off when they see your numbers. They depend on you – the PEOPLE.

Rule 4

Don’t let them DIVIDE you into different classes of citizens, “true Americans”, “patriots” vs “traitors”, “enemies of the state”. You’re ALL citizens, ONE nation, despite different beliefs and ideology. Make your diversity your STRENGTH. Stay TOGETHER for a common goal – survival of your country, of freedom and democracy.

Rule 5

Don’t give up, don’t get tired, and don’t try to wait it out. Don’t hope it will pass. It WON’T. They will manipulate the people, control the media to sway public opinion, fix the electoral system and STAY FOR GOOD.

Rule 6

If you don’t get them to back off or to step down, you better make goddamn SURE that when the next elections come, assuming there’s still any democracy left, NO ONE will vote for the same bastard(s) again!

– With love, your Eastern European friends

—

7 RULES on Approaching Authoritarian Supporters

What if your neighbour, friend or family member supports the authoritarian regime?

Rule 1

Don’t look down on them, don’t patronize them, even if you know what they’re saying has no factual basis or you find it offensive. Don’t preach, ask questions. Try to understand them, where they are coming from, what their problems are and why they see solutions to them in the regime. Treat them as people, as equals. They believe what they’re saying is true and they might have valid reasons for their support.

Rule 2

Don’t get emotional, don’t get provoked into heated arguments. Fight the other side’s emotions with your calm, logical approach. The angrier they get, the calmer you should be. They’ll calm down eventually.

Rule 3

Focus on what you have in common. Do you live in the same neighborhood? Do you work in the same company or sector? The smaller the community, the easier it is. Give examples, like “we all need to get this done for all of us, if we don’t cooperate neither of us will have it”.

Rule 4

Use their language, don’t treat it as inferior or below you – don’t seem patronizing (see rule 1). If they curse, curse with them. If they approach you with humor, don’t get angry or uptight about it, reply with humor. Show them you’re actually not that different (see rule 3). As long as you communicate on two different planes, you will never meet.

Rule 5

Don’t block their news sources, don’t turn away from their leaders and authority figures. Treat them as an insight to their worldview and tactics. Use them to your advantage, to better prepare for their arguments. Whenever you don’t agree with something or detect a lie, voice it calmly, expose it with factual arguments.

Rule 6

Pinpoint the practical, negative effects of their side’s actions, ones that affect them directly. Find examples of how they, their families, children or friends will be personally impacted by their policies, or how it will affect your shared community.

Rule 7

If all else fails, don’t turn away, don’t abandon your friends and family, don’t shun your neighbors. Remember, an authoritarian wants to divide you to control you. So invite them over to your BBQ, crack open a beer, and who knows, maybe they’ll realize you’re not so different after all.

– With love, your Eastern European friends.

A previous version of this article contained a slightly different phrasing in point 8.

“Die Gemeinschaft ist Rechtsgemeinschaft und wird nur durch die Autorität des Rechts zusammengehalten.”

Everling, Zur Begründung der Urteile des Gerichtshofs der Europäischen Gemeinschaften, (1994) 29 EuR 127

With the Irish judge referring questions to the Court of Justice and asking how the capture of the Polish judiciary affects her duties under the European Arrest Warrant regime has dramatically changed the landscape of the European rule of law crisis. With national judges stepping into the breach, a new legal channel is opened through which to address the crisis. We are witnessing a switch from the classic paradigm of EU law of «judges asking judges» (dialogue via preliminary rulings) to a more demanding « judges monitoring the judges ». This is crucial given the ineffectiveness and misguided calculations of the political institutions of the EU. With the questions posed, and concerns raised, about the systemic damage done to the Polish justice system, the Irish judge acting in her capacity as the EU judge of general jurisdiction, has elevated the discourse about the EU rule of law crisis to another level. We are now moving away from the political arena marred by cynicism and rotten compromises to the courtroom with its own logic and principles. Judges own their loyalties to the Treaties and the law that they are supposed to uphold (art. 19 TEU). The constitutional stakes could not be higher. Yet to fully grasp the constitutional importance of what has happened in the Irish High Court, the referral must be placed in more systemic and temporal context.

The «Overlapping Consensus »: The Concept   

Rawls has argued that “Citizens who affirm reasonable, but opposing comprehensive doctrines belong to an overlapping consensus: that is they generally endorse that conception of justice as giving the content of their political judgments on basic institutions; and second, unreasonable comprehensive doctrines … do not gain enough currency to undermine society’s essential justice”. Consensus does not cancel diversity, quite the contrary: It responds to, and acknowledges, that society is built on diversity. Overlapping consensus requires agreement on fundamental commitments of principle: It is these essentials that I require others to respect as the condition of my own deference to decisions taken by others. In order to achieve the overlapping consensus, excluding from the consensus actors with unreasonable and irrational doctrines is not only justified, but necessary. Importantly there will never be a perfect agreement on the constitutional essentials that define the consensus as denying the disagreement would be counterfactual: persistent differences between citizens living together in a constitutional regime do create a disagreement over the final shape of the essentials. Rawls claimed that many disagreements among citizens in their understanding of justice can nevertheless lead to similar political judgments and these similar political judgments can then lead to “overlapping rather than strict consensus”. What matters, though, is that parties to the consensus agree that these disagreements will be ironed out, and spelled out within the discursive framework.

How does this matter to the EU?

 The “European Overlapping Consensus” and the Power of Bargaining

At its heart, the European overlapping consensus has the constitutional tolerance and an agreement on fundamental commitment to First Principles that parties to the consensus expect and require others to uphold. The overlapping consensus relies on the acknowledgment by the members of multiple societies that they understand the essentials that bind them together and are ready to honour the influence of others on the interpretation of shared commitments. We might be different, yet we decide to paddle and look to the future together. Any attempt to remove the disagreement and difference from the European politics would be futile given the diversity of the states. Disagreement must be part of the European common enterprise and must work as a desired check on the natural centralizing push of the center (EU). The time factor is important here: overlapping consensus is subject to never-ending adjustment and mutual learning. In the words of Sabel and Gerstenberg, consensus arises from “an ongoing historical interaction between the emergent, common political view and the comprehensive views underlying it”. “We”, in the shape of the peoples of Europe, have agreed to respect others’ way of life, provided that their lives and decisions respect mutually agreed-upon essentials and fundamental values.

The essence of the consensus is procedural and speaks to the plural character of the EU legal order. Evolution of EU law is seen as the product of a dialogue between all parties to the consensus and comity. Consensus and commitment to the comity are renewed through never – ending process of bargaining. The bargaining manages the legal and factual interactions of the EU and national legal orders and gives voice to national concerns. It makes sure that every party to the consensus sees himself as an actor in, and architect of, the constitutional narrative. As such bargaining over the final shape of the consensus both reinforces, and frames the pluralism that always defined „European peoples”. Most importantly it shifts the emphasis from the dominant and antagonistic narrative of “who has the last word” over the values (this is the preferred vantage point of the divisive politics of resentment) to more discursive and other-regarding “who should have the first word” in the spirit of comity. While the former is reactive and deals with the conflict as fait accompli, the latter is preemptive and aims at diffusing the tension and framing the disagreement before it escalates into all-out conflict that might endanger the consensus.

This new approach to framing the constitutional disagreement as integral part of the consensus is inclusive. It caters to the pride and ambition of all participants in, and signatories of, the original consensus – the member states, citizens and EU. This is because they are all made partners in the common enterprise. It is pragmatic, because it recognizes the insoluble conflict of “either … or” and pitfalls of the claim that the question of ultimate authority might be resolved once and for all. Consensus lasts as long as there is a bona fide desire to strike the reasonable balance between European unity and national diversity. It recognizes that the result must be always a function of two sides talking to each other. Bargaining is a less diplomatic form of dialogue (“good-mannered dialogue will sort it out somehow”) because it faces up to the reality that sometimes a conflict will indeed require one party to the disagreement to step back and defer. However, this will never cancel out the validity of the consensus because disagreement and deferral are not seen through antagonistic lenses, and commonality of the core values continues despite occasional frictions. If anything, the contours of the original consensus might even evolve in response to the repeated calls for re-examination of the original deal, without however calling into question its very identity built around rule of law, democracy and human rights.

This pragmatism recognizes the validity and relevance of the original position of all participants in the bargaining. It holds out a hope that the discursive opening will allow the participants to co-exist and make the system work. Importantly, the latter’s survival will depend more on the factual, rather than the normative. The factual is front and center, because both legal orders have an equal right to win from their own unique perspective. While each order claims the authority, it does not entail the automatic rejection of the claim made by the other. What matters is how these legal orders, each autonomous in its own right, enforce their application and respect. The bargaining placed at the service of the overlapping consensus is based on the most basic commitment of all the constitutional actors: to ensure the functionality, and the coherence of the system while at the same time searching for a compromise to accommodate all plural voices within it. There is an overarching duty to strive for such maximization of the conformity given what is possible in the factual and legal registers. However, acceptance of pluralism as part of the consensus is double-edged sword. It spells the duties for all parties to the consensus. On the one hand, as was rightly pointed out by Professor K. Lenaerts, it „means that each national society remains free to evolve differently to its own scale of values. Value diversity must, where possible, be respected and preserved by the EU”. On the other hand, given the fact that pluralism is not an absolute value, national legal order must be other-regarding in that it must comply with any constitutional consensus that exists at EU level.

The Rule of Law as the “Heart of the European Consensus”

The Polish constitutional debacle provides an unfortunate example of how the European consensus built around the rule of law is being eroded from within. The Polish populist government claims to be respecting the rule of law, but argues first, that it should be interpreted differently from what was hitherto accepted as a dominant understanding of what the rule of law stands for; and second and more dangerously, that there is no agreement on what the rule of law entails in practice (application). This argument brings to mind what Cass Sunstein called “incompletely theorized arguments”. He has argued that under the conditions of serious disagreements, constitution-making can only become possible if people agree on certain practices rather than on abstract principles or grounds justifying these practices. Alternatively, incompletely theorized agreements might as well obtain when people agree on abstract principles , but not necessarily on what these principles entail in practice.

In the EU context, we could argue the rule of law is either a practice that is shared, but there is no agreement on what abstract principles underlie, and justify these practices, or that the rule of law is a principle on which all parties agree and then define a practice that could be shared by all. In the analysis that follows, however, the rule of law is understood as a fundamental principle with a clear non-negotiable minimum. Modern constitutionalism accepts that in the absence of the rule of law, contemporary constitutional democracy would be impossible. At a minimum, the rule of law requires fairly generalized rule through law; a substantial amount of predictability; a significant separation between the legislative and the adjudicative function; widespread adherence to the principle that no one is above the law. The authority that binds together the Community (Union) is the law and the respect for the law. That was the principle that underpinned the original consensus in 1951 and continues to do so now. The rule of law in the EU has a clear core and must be seen as an essential part of the consensus. It is a fully theorized argument with minimum content, both at the level of practice and principle. Independent and impartial courts and effective judicial review are at the heart, not at the margins, of the EU rule of law. Similarly, the case law of the Court of Justice provides strong arguments in favour of interpreting the rule of law as one of the meta-principles of the entire constitutional framework of the EU. It is the interpretation that might change, but the hard core of the principle stays: separation of powers, effective application of law, judicial review, right to an effective remedy, principle of legal certainty, legitimate expectations and the principle of proportionality. The rule of law must be recognised to be one of the foundations of the consensus in the sense that the Court’s spoke in case 106/77 Simmenthal of the supremacy of EU law as forming “the very basics of the EU legal order”.

How does this matter for the consensus? Without the commitment to the rule of law and the continuing confidence that parties to the consensus will guarantee the independence of their courts, parties would have never been able to come together, and to defer to each other, in the first place. This is exactly where the European consensus faces an existential challenge.

A Crumbling European Consensus ?

The politics of resentment call the original narrative built around the rule of law into question by proposing a competing one, that of fundamental disagreements over values and the inability of today’s European Union to keep fostering mutual trust. The politics of resentment poses an existential threat to the consensus because the commonality of values and interests is replaced with unbridgeable difference. The values that brought together the parties to the consensus are now given distinctively national interpretation without regard to others and the EU legal system. An argument is made that the concept of common values is too ephemeral and far from crystalized. Given the fundamental and persistent disagreements over basic (not just any) values that the politics of resentment bring to the fore, the pressing question is whether “we” exist at all. With different conceptions of the rule of law (no independent judiciary, checks and balances and judicial review) and human rights, the consensus is coming apart at the seams. These concepts were thought of as the basic minimum that all the parties to the consensus agreed to respect when they decided to join. The consensus loses its discursive value when Poland rejects bargaining and, rather than “voicing” its concerns within the pre-agreed framework that consensus offers, choses to “exit” unilaterally.

We should be clear about the kind of challenges the European consensus is facing right now. With the politics of resentment on the rise, „the European consensus” might be just minutes away from a most fundamental challenge of “mega-politics” of identity and self-survival. Why? The „overlapping consensus” recognized that the European polity is composed of distinct peoples and respects other peoples’ ways of lives. Yet, for a consensus to work, „we” the European peoples’ should acknowledge certain fundamentals that bind and discipline us and that brought us together. Part of the deal behind the overlapping consensus has always been the acknowledgment that parties are ready to enter into a bargaining process in order to find similar grounds of understanding of the fundamental commitments. Bargaining presupposes managing the disagreement over time in order to build a common understanding of the basic principles.

However, parties with unreasonable and irrational doctrines that question the liberal democracy as a form of government must be excluded from the consensus. This is so because the disagreement must not undermine all parties’ commitment to support liberal democratic principles under a democratic constitutional regime. The emerging constitutional doctrine of the politics of resentment is anything but reasonable and rational within the meaning of the consensus that brought parties together. Resentment-driven constitutional capture in Poland undermines the very idea of Europe, together with the principles of liberalism, tolerance, ‘living together’, and ‘never again constitutionalism’. It replaces these founding principles with zero-sum politics, a vision of ‘us vs. them’ and a competing constitutional narrative of fundamental disagreement over values. It proclaims that “we, the European peoples” are not ready to live together in one pluralistic constitutional regime. It becomes clear that the politics of resentment backed up by capture not only challenges the standard story of the origin of the EU – that it was founded to bring peace and prosperity to Europe by ending the possibility of war and encouraging the common rebuilding of economies – but also puts forward a new and competing constitutional project and design.

The Consensus in the Court-Room: Enforced or … Lost 

For the EU to have a chance against the rising politics of resentment, the language, and perspectives through which the EU looks at the member states, must be challenged and change. “Essential characteristics of EU law” (term used by the Court of Justice in its Opinion 2/13, para 167), must go today beyond traditional “First Principles” of supremacy and direct effect, to embrace the rule of law, separation of powers, independence of the judiciary and enforceability of these principles as part of the ever-evolving consensus. Together these essential characteristics of EU law have given rise to what the Court has imaginatively called: « a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe ». When it comes to fundamentals, there is no place for bargaining. „First Principles” (I borrow the term from Sir D. Edward’s An Appeal to First Principles; on file with the author) demand fidelity and action and call for reexamination in the light of a rebuttable presumption that values like rule of law are … no longer shared.

When faced for the first time with the politics of resentment in the logging case, the Court, by imposing a penalty payment on Poland, not only defended itself in the spirit of judicial self-defence, but also spoke on behalf of the consensus and its cohesiveness. The Court we saw in the Commission v Poland was the „Court of old”; guardian of the „Community integrity” and effectiveness. Art. 2 TEU forms part of the EU law senso largo in the same way the Court has interpreted the term „law” in what once was called the most important legal provision of the Treaties (art. 220 of the former Treaty on the European Community, now art. 19 TEU). In the light of 50-year strong acquis jurisprudentiel there is still untapped remedial potential in art. 19 TEU („the law”, « le droit » « des Rechts », « prawo »). The First Court of 60’s and 70’s always spoke of the authority of the law that binds together the Union of “states, institutions and individuals”.

The rediscovery of these old precedents and building on the spirit of what former Judge of the Court C. Kakouris called „the mission of the Court”, might be happening in Luxembourg right now. „The effective application of EU law as an essential component of the rule of law” (C – 441/17R), the „existence of effective judicial review as the essence of the rule of law” (Case C – 72/15), „the guarantee of judicial independence as inherent in the adjudication” and a prerequisite for ensuring the effective judicial protection (Case C – 64/16), and now also „mutual trust” in the performance and status of the courts in the member states – parties to the consensus, are all essential elements of the „European First Principles”. Respect for the rule law and trust in law are existential components of the original consensus on which all other commitments of the parties are built. The moment these principles start to crumble, so will the consensus. At long last, the politics of resentment faced a powerful enemy: European courts with their own fidelities and loyalties. From the way Poland has rejected the Court’s order in the logging case and ridiculed the Court’s judges, it is clear that the constitutional stakes could not be higher: survival and long-term viability of the consensus, the parties’ continuing desire to belong to the consensus and to be bound by its First Principles.

With this, the time of „mega-politics” has indeed arrived …

As discussed on this blog by Professor Mattias Wendel, in March 2018, in a European Arrest Warrant case concerning a Polish citizen (Celmer) the Irish High Court was confronted with claims that the wanted person’s fair trial rights will be undermined due to a lack of judicial independence in Poland following recent ‘judicial reforms’. In assessing these claims, the High Court engaged in a meticulous analysis of those reforms, and the Article 7 TEU procedure initiated against Poland by the European Commission. It decided to raise preliminary questions with the CJEU regarding the relationship between judicial independence and intra-EU cooperation in criminal matters based on the principle of mutual recognition. This reference offer the CJEU a chance to answer two of the questions it left open in its jurisprudence thus far (notably in Aranyosi and Căldăraru, commented by us in the New Journal of European Criminal Law, 2016, Vol. 7, pp. 439-464):

1. whether rule of law violations trigger suspension of mutual trust; and
2. what pieces of evidence are acceptable.

This case calls for us to reflect on the question what role judicial authorities can and should play in ensuring compliance with democracy, the rule of law and fundamental rights (DRF) in other EU Member States. In our view, judicial authorities ultimately have an independent responsibility to put a halt to surrenders, in case the wanted person’s fair trial rights are put in peril due to a general lack of judicial independence in the issuing state. At the same time, the political responsibility for balancing diverse EU constitutional principles needs to be borne by democratically elected institutions. Therefore, the court of the executing state should not only halt or suspend judicial cooperation in the event that persuasive pieces of evidence point to a violation of the values shared by the EU and the Member States in the issuing state, but it should also freeze the case awaiting a resolution of the matter from political actors in accordance with the procedure provided for in Article 7 TEU or the DRF monitoring and enforcement mechanism called for by the European Parliament.

The first issue: the rule of law exception

The Irish case could be construed as a rule of law or as a fundamental rights case. This is due to the nature of judicial independence, which can be understood as a stand-alone subpart of the rule of law, but could also be addressed from a fundamental rights perspective. As to the latter option, Celmer could be seen as a direct continuation of Aranyosi, with the difference being what is at stake: Article 47, a derogable right of the CFR on the right to an effective remedy and to a fair trial, as opposed to Article 4 CFR, i.e. an absolute right. The infringement case initiated by the Commission on the Act on ordinary courts could underpin this latter argumentation.

Emphasising the human rights element, the High Court of Ireland mentions ‘a real risk of a flagrant denial of justice’ incorporated into the question that is referred to the CJEU. (Celmer, para. 145.) However, the warning of AG Sharpston in Radu should be remembered: ‘such a test (…) would require that every aspect of the trial process be unfair. But a trial that is only partly fair cannot be guaranteed to ensure that justice is done.’

Alternatively, it may be useful to disentangle the interrelated values of the rule of law and fundamental rights and to construe the case as a pure rule of law violation due to the government’s intrusion into judicial independence. Maintaining the distinction is particularly useful at this point, since judicial independence is also crucial for other areas of EU law (for example the fight against fraud).

In Case-C 64/16 Associação Sindical dos Juízes Portugueses the CJEU emphasised the importance of the national judiciary for the enforcement of EU law, and entrusted itself with assessing judicial independence of those national courts which apply and interpret EU law. There are several remarkable highlights in this case that are also vital for the Celmer reference. First, since there is no EU law on the salary reductions of national judges – which was at issue in this Portuguese case – the CJEU could not have relied on any specific EU law provision. But that did not prevent the CJEU from going into the merits. Second, the CJEU could have invoked an obvious element of the case at hand to underpin its relevance to EU law. The temporary reduction of salaries in the public sector including the judiciary was a mandatory requirement imposed on Portugal by the EU so as to reduce the former’s excessive budget deficit, which was a precondition for receiving financial assistance. But the CJEU took a different path: it held that it is the duty of national courts, ‘that in the interpretation and application of the Treaties the law is observed’, therefore it is vital for national courts to remain independent. Borrowing the words from Professors Pech and Platon, ‘the ECJ has essentially made the EU principle of effective judicial protection (including the principle of judicial independence) a federal standard of review which may be relied upon before national courts in virtually any situation where national measures target national judges who may hear actions based on EU law.’ Third, the CJEU refused to construct the case as a judicial independence case as derived from Article 47 CFR, and instead invoked Article 19(1) TEU on the principle of effective judicial protection of individuals in the fields covered by Union law. The judgment can be seen as an invitation to challenge the issue of judicial independence as an essential element of the rule of law in the Member States before the CJEU – and this is also the path the Irish High Court has taken.

The second issue: what evidence is needed to rebut the presumption?

As to the second problem, the evidence presented in Aranyosi substantiating the general fundamental rights violations was a solid one. The case followed several judgments of the ECtHR, reports of the CPT, numerous national court judgments, as well as reports by the ombudsman and NGOs condemning prison conditions in the issuing states.

In light of the above, the question emerges whether other pieces of evidence not stemming from international or national court judgments nor from bodies of the Council of Europe or the UN may justify postponement of the decision to execute a European arrest warrant. The question for the CJEU will be whether the Reasoned Proposal in the Article 7(1) case and the sources it relies on are to be considered persuasive.

At this point, the distinction the High Court makes between the outcome and the process of an Article 7 TEU procedure as evidence becomes crucial. Taking the time element into account, the High Court emphasised that it cannot patiently wait for other EU institutions to determine breaches. But even if the Article 7 procedure was moving at a faster pace, it is ill-suited to answer the question whether mutual trust should still hold. As the High Court of Ireland put it, ‘the process set out in Article 7 is ultimately political and not legal. The final determination is made at head of state/head of government level by the European Council and not by a judicial body.’ (Celmer, para. 115) An Article 7 procedure is vital for a national court deciding on surrender, but not because of its outcome. Much more significantly, it has value as persuasive evidence. (Celmer, para. 116)

This finding has far-reaching implications. It suggests that mutual trust can be suspended, irrespectively of an Article 7 TEU procedure having been triggered, or even after such a process failed – if there are other pieces of persuasive evidence pointing to systemic problems in the issuing state. At first glance this appears to be ground-breaking, in light of the fact that the Framework Decision on the European Arrest Warrant (FD EAW) by a textual interpretation of Recital (10) only allows for its suspension if a Member State seriously and persistently breaches the principles set out in Article 2 TEU and is sanctioned by the Council pursuant to Article 7 TEU. However, a textual or historical interpretation of Recital (10) FD EAW is not in keeping with the significant developments since the adoption of the FD EAW, notably the Charter becoming binding and the further elaboration of the values of the EU and their enforcement mechanisms. The High Court’s reading corresponds to these new developments and rightly assumes that suspension of mutual trust can be detached from the outcome of an Article 7 TEU procedure.

A proposal: freezing mechanism for judicial cooperation

The fundamental underlying question behind the above debate is whether it should be up to the judiciary in the first place – either the executing state’s judicial authority or the CJEU – to determine these instances of breaches and ensure DRF compliance in judicial cooperation. The High Court seems to argue that the judiciary has an independent role to uphold DRF. As Professor Koncewicz put it, ‘we are witnessing a switch from the classic paradigm of EU law of «judges asking judges» (dialogue via preliminary rulings) to a more demanding «judges monitoring the judges»’. This reading ultimately burdens the national courts with having to come up with an assessment of the rule of law and fundamental rights situations in all other Member States and thus with performing the tasks that, ideally, an independent body at the heart of the DRF Pact was supposed to perform.

We agree with the assessment of the Irish High Court that judicial authorities ultimately have an independent responsibility to put a halt to surrenders, in case the wanted person’s fair trial rights are put in peril due to a general lack of judicial independence in the issuing state. It would not make sense to proceed to a second step – as proposed by the CJEU in Aranyosi in relation to potential fundamental rights violations – and engage in a discussion with a judge about his or her own independence and impartiality where this is the very issue that is called into question. But one should also acknowledge the potential dangers of allowing national courts to perform such an assessment and thereby trump the principle of mutual trust, ultimately challenging the primacy, unity, and effectiveness of EU law. (As mentioned in the Case C-399/11, Melloni or Opinion 2/13.) The courts’ primary concern has to be the protection of individual rights, but the political responsibility needs to be borne by democratically elected institutions.

Therefore, the court of the executing state should not only halt or suspend judicial cooperation but should freeze the case and inform Eurojust and the Commission of its decision. The idea to freeze the situation has been suggested earlier by Professors Sergio Carrera, Elspeth Guild, and Nicholas Hernanz regarding practices in Member States that might undermine EU values. Our proposal is in keeping with that idea.

The Commission should be obliged to monitor the issuing state and pass a general determination about the suspension of mutual trust in case a Member State falls short on one or more of the values listed in Article 2 TEU. Should a clear risk of a serious breach be determined either by an Article 7(1) procedure or by the first prong of the DRF Pact, mutual trust needs to be suspended. While the wording of both processes refers to a ‘clear risk’, which seems to indicate less certitude than a solid determination of a breach, mutual trust should be suspended anyway. There are at least two reasons justifying this. First, the history of the Union has shown that EU institutions begin considering the determination of a clear risk of a serious breach when other entities already determined this with highly persuasive force. Second, even if the breach was not obvious, it is justified to take a precautionary approach when individual rights are at stake. Needless to say, mutual trust must also be immediately suspended if the existence of a serious and persistent breach of EU values is established either after having invoked Article 7(2) TEU or through the DRF mechanism. The Commission should start a dialogue with the Member State in question, taking into account its country-specific recommendations adopted during the process. Furthermore, on the basis of continuous scrutiny it should determine when trust can be re-established.

Should the CJEU agree with the Irish High Court, it will have far-reaching implications. The suspension of trust could extend to other subject matters, too. Judicial independence is equally important for the functioning of the single market and the Eurozone – this explains why the assessment of judicial independence plays a central role in the European semester. Lack of judicial independence may jeopardise autonomous EU law concepts. For how could direct effect allow individuals to invoke European law before national courts if these Member State fora do not satisfy the very basic tenets of the rule of law and are not independent?

Article 7(1) is a lex imperfecta. Even if the procedure successfully comes to an end, it does not foresee sanctions. The CJEU’s interpretation of the procedure’s impacts on mutual trust, and perhaps even the direct effect of EU law in general may, however, result in dissuasive legal consequences to rule of law backsliding.

The views expressed in this contribution are solely those of the authors.

A few days ago, the courageous and intelligent Chief Justice of the Polish Supreme Court, Professor Małgorzata Gersdorf, announced that, after some agonizing due to important legal and moral dilemmas at stake, she decided after all to convene the first, inaugural meeting of the National Council of Judiciary (Polish acronym which will be used here: KRS). The meeting is to take place on 27 April.

The decision was met with dismay on the part of some lawyers (including myself), and relief on the part of others (those related to or supporting the Law and Justice ruling party, or PiS). Generally, however, it did not prompt any particularly strong responses on either side. But the decision is momentous, both in its practical consequences and as a matter of principle. To understand why, one has to get acquainted with the background of Gersdorf’s decision, namely, with the substance and the process of setting up a new KRS.

The statute on KRS was one of three laws on courts enacted by PiS in the middle of 2017, and one of the two laws (alongside the statute on the Supreme Court) vetoed initially by President Andrzej Duda. KRS is a constitutionally designated body with the key role in all judicial nominations: it has the power to nominate all the candidates for judicial position in the nation, and propose them to the President of the Republic. (It is a matter of some controversy under the constitutional law whether the President may reject the KRS nominations but I will not be going into this here). Its most general constitutional mission is to safeguard the independence of courts and judges. Among a number of its additional powers perhaps the most important is to lodge motions to the Constitutional Tribunal regarding the constitutionality of normative acts on courts and judges; it also adopts a code of ethics governing the judicial profession, expresses an opinion on drafts of normative acts concerning the judiciary, etc.

Judges elected by politicians

PiS from the very beginning of its campaign against the judiciary considered the judicial component of the KRS to be the main obstacle to its reform. According to the Constitution the KRS consists of 15 judges; the remaining members are: Chief Justices of the SC and Supreme Administrative Court, Minister of Justice, a representative of the President, 4 MPs elected by the Sejm and 2 senators elected by the Senate. The Constitution does not provide explicitly that the judges on KRS are elected by the judiciary: it only says that 15 members are “chosen from amongst the judges” (Art 187) but so far it has always been understood that they are elected by the judiciary itself, and accordingly the old statute on KRS established a complex mode of elections within different branches and types of the judiciary. Importantly, the “new” Constitutional Tribunal’s judgment of 20 June 2017 (in which some improperly elected “judges” participated) which found the statute unconstitutional did not object to the very principle that the judges are elected by their peers but only objected to different methods of those inter-judiciary elections at different levels of courts.

The principle that the judicial component of the KRS is a representative of the judiciary and therefore must be elected by judges has not been challenged until now. As the Consultative Council of European Judges (CCJE), a body affiliated with Council of Europe, said in its recent Report, “the Committee of Ministers of the Council of Europe took the position that not less than half the members of Councils for the Judiciary should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary”.¹⁾ The Opinion of the CCJE Bureau of 12 October 2017 on the draft legislation on the Polish National Council of the Judiciary presented by the President of Poland (CCJE-BU(2017)9Rev), para 14, p. 4, (last accessed 16 January 2018).  See also the OSCE Office for Democratic Institutions and Human Rights final opinion on draft amendments to the act on the national council of the judiciary and certain other acts of Poland, No JUD-POL/305/2017-Final, Warsaw, 5 May 2017, (last accessed 16 January 2016). The same was emphasized by the Venice Commission which has adopted the view that “a substantial element or a majority of the members of the Judicial Council should be elected by the Judiciary itself”.²⁾Report of the Judicial Appointments and the Report on the Independence of the Judicial System, quoted in the opinion on the draft act amending the act on the national council of the judiciary, on the draft act amending the act on the Supreme Court, proposed by the president of Poland, and on the act on the organisation of ordinary courts No. 904/2017, adopted by the Venice Commission at its 113th Plenary Session (8-9 December 2017), para 17, p. 6, (last accessed 16 January 2016). In addition to the principled argument for maintaining the established and uncontested constitutional custom of letting the judges elect the judicial component of the KRS, there was also an important textual argument. With regard to MPs sitting on the KRS, the Constitution explicitly provides that they are “elected by the Sejm” (and, similarly, with regard to the Senators that they are “elected by the Senate”), so if the constitution makers wanted to allow or mandate the election of judges-members of the KRS also by the Sejm, they would have said it openly, as they did regarding the representatives of both chambers of Polish parliament.

The principle of representatives of judges to be elected by their peers for the first time has been challenged and rejected by PiS in its bill on KRS, and also by President Duda in his own bill proposed after his veto to the PiS bill. Both PiS and Duda wanted the 15 judges on KRS to be elected by the legislature rather than by judges themselves as is currently the case. The only disagreement was about the majority needed for their election: PiS proposed a simple majority; Duda, a 3/5 majority, on the basis of the argument that it would let the opposition have some influence upon the composition of the KRS. In the end, the law voted on by Sejm on 8 December 2017 and the Senate on 15 December 2017, and signed by the President on 20 December 2017, envisages that the 15 judges in KRS will be elected by the Sejm. The candidates may be proposed by groups of citizens (minimum 2000) or groups of 25 judges; the Sejm is to elect the KRS members by a 3/5 majority but if this mode does not result in a full list of 15, the remaining members will be elected by a simple majority. This gives the ruling party a decisive say in the composition of the KRS, and indirectly, in the nominations of judges; in effect, it is a return to the proposals initially vetoed by the President. A remark by the Venice Commission, addressed to an earlier draft, applies well to the law eventually adopted: the mechanism of assuring compromise in the vote for members “would not be effective if in the second round candidates supported only by the ruling party may be elected by a simple majority of votes”.³⁾Opinion 904/2017 para 22.

Only 18 candidates

The law also envisages a pre-term removal of all the judges currently sitting as members of the Council despite a constitutionally guaranteed term of office (of 4 years). The unconstitutional extinguishment of the constitutional term of office was never even mentioned by President Duda when he vetoed the initial bill, and this arrangement has been maintained in the statute. The Venice Commission’s opinion stated the obvious: a combination of a new, parliamentary method of election of judges in KRS with the termination of terms of office of all currently serving members “is going to weaken the independence of the Council with regard to the majority in Parliament”.⁴⁾Opinion 904/2017 para 31. See also the European Commission recommendation of 20 December 2017 regarding the rule of law in Poland complementary to Commission Recommendations (EU) 2016/1374, (EU) 2017/146 and (EU) 2017/1520, Brussels, 20 December 2017, C(2017) 9050 final. In fact, it is an understatement. In conjunction with the new act on the SC and on ordinary courts it amounts to the full capture of the judiciary by the ruling party.

The law on KRS caused a great deal of controversy within the judicial profession, especially with regard to the judicial candidates to the Council, with an ensuing polarization between a large majority of judges critical of the “reforms” and a minority loyal to the authorities. As the President of the association of judges “Iustitia” said, in his opinion only about 3-4 percent of all judges supported the legislative changes.⁵⁾Małgorzata Kryszkiewicz, “Mentalność służebną mieli sędziowie w czasach PRL”, Dziennik Gazeta Prawna 8 February 2018 at 6. In the end only 18 judges out of some 10 thousand judges in Poland agreed to be candidates, and newspapers quickly discovered that a large majority of them are judges “delegated” to the Ministry (hence subordinate to the Minister of Justice) and also newly apointed presidents of courts, nominated by Minister Ziobro (hence, his beneficiaries). To make things worse, contrary to the constitutional requirement of KRS representing courts of all levels, on the list of 18 candidates there were no judges representing the Supreme Court or the Supreme Administrative Court and no judge from a court of appeal or a military court.

The whole process of generating the candidates was shrouded in secrecy, and the names of supporters were never publicly announced, which confirms the degree of embarrassment and shame that the candidates (and their supporters) were aware of. In this way, one of the main official rationales for the changes, namely to make the appointment more democratic, has been blatantly discarded. What is worse, by making secret the lists of those who supported and seconded the candidates, it became impossible for anyone to verify whether each of the candidates indeed had a required number of supporting judges, eligible to do so. There is no way of checking these documents. A few days ago, in response to one of the NGOs applying to the Ministry of Justice, in the Freedom of Information procedure, for access to the names of judges supporting the candidates to KRS, the NGO received some sixty pages of documents with all the names of supporting judges blanked out!

15 judicial members of the KRS were elected on 7 March 2018, and reflecting the list of candidates, a large majority of the judges elected (about eighty percent) are either direct beneficiaries or recent subordinates of Minister Ziobro. The composition is badly skewed toward the lower ranks of courts. In addition to PiS, only a satellite party of PiS (named after its founder, Kukiz-15) decided to propose its candidates (PiS proposed 9 and Kukiz 6 candidates, in an act of clear collusion aimed at avoiding any “surprises” in the election) with all other opposition parties boycotting the election. Thanks to the boycott, no second round of elections was necessary, and all 15 were elected with super-majority. On the day of the election of new KRS, the incumbent ex officio President of KRS, Chief Justice of SC Małgorzata Gersdorf resigned from her function in the KRS.

Convening the Council means it is the Council

Which brings us back to the recent decision of Chief Justice. One of her statutory obligations, qua Chief Justice, under the new statute, is to convene the first meeting of the Council. In providing now an argument for why she decided to do so, she said that her position as Chief Justice does not leave her any room for “an act of civil disobedience”, which would be constituted apparently by non-convening of the Council. She added that her action would be futile anyway because PiS, with its full control over the parliament, would quickly find and enact an alternative way of convening the meeting. (In fact, they already flagged such alternative measures, for instance by entrusting either the President of the Constitutional Tribunal or the oldest judicial member of the new KRS with the task of convening the meeting).

None of the arguments is compelling. As to the alleged “civil disobedience” which does not fit the office of Chief Justice, the problem with this argument is that the alternative before Professor Gersdorf was not between a law-abiding and an illegal action. It is true that under the statute on KRS Chief Justice has an unconditional duty to convene KRS. But convening KRS signifies that it really is a KRS: something we do not know unless we find out about the names of all the supporters of the judges-members of the new KRS, and are satisfied that they all indeed are judges entitled to express such support. Since they become anonymized in documents made available to the general public, all we have is the word of the Minister of Justice Zbigniew Ziobro and the Speaker of Sejm, Mr Marek Kuchciński. But for some of us, their credibility is close to zero. So it is at least arguable that the “election” of judicial members of the KRS was in violation of the statute – and until we all find out the names of the supporters, the presumption is that such a violation may have taken place. This presumption may be rebutted only by full disclosure of all these names.

Further, and more importantly, the statute on KRS is unconstitutional in many regards: both by unconstitutionally (as shown above) giving the parliament full power of electing the judicial members of the KRS, and by a statutory extinguishment of the constitutionally guaranteed terms of office of incumbent members of KRS. Hence, by convening the KRS, Chief Justice will necessarily gloss over, hence legitimize, these unconstitutionalities.

A tragic choice

Her choice has been therefore truly tragic, in the classical sense of tragedy where any option is bad. But some options are worse than others. Faced with an alternative of violating a statute and violating (by implication) a statute and the Constitution, the Chief Justice could (and, in my view, should) have chosen a lesser evil: to breach a statute which violated the Constitution in the first place.

As to the argument from futility (namely, that there will be always someone else who would be more than happy to oblige and convene the meeting, should PiS so decide) – this is perfectly correct, but with one proviso. That “someone else” would not have benefited from the moral capital which Professor Gersdorf earned in the last years. Every authoritarian system will find some persons who will replace the honest public figures in performing the dirty work. But this is not an argument for the honest ones to do it. They should protect and defend their moral capital in difficult times even if it calls for symbolic gestures which under a purely pragmatic analysis may seem futile. Symbolism matters a great deal, and to understand “symbolic” as equivalent to “trivial” is a big mistake, especially when such grand values as the rule of law are at stake. And it is just too bad that Chief Justice wasted an opportunity of affirming this principle.

Nothing illustrates the rule of law crisis in Poland as well as the practice of the functioning of the Constitutional Tribunal. During more than thirty years of operation, the Tribunal has established itself as a protector of democratic process and defender of limits upon the legislative and executive powers. Although many of the Tribunal’s judgments were controversial, the Tribunal in general has been a leading judicial actor contributing to the protection of human rights and the rule of law. That explains naturally why it has become the first enemy of the governing PiS party, which could not tolerate and accept the existence of the uncontrollable body able to invalidate unconstitutional laws adopted in the parliament (see the Verfassungsblog posts of Sadurski and Matczak).

In March 2017 I have tried to explain to the readers of the Verfassungsblog the background and the possible consequences of the admission to adjudication by persons who have been chosen contrary to the Constitution (so-called “anti-judges”). Despite the Venice Commission opinions, despite the recommendations and the reasoned proposal (COM(2018) 735) of the European Commission, the PiS government does nothing to fix the situation of the Tribunal. Not only it allowed the unconstitutionally chosen judges to adjudicate from December 2016, but also nothing prevents the governing party from choosing the next anti-judges, replacing two who died in the meantime. Nominating a new person replacing the one who was chosen unconstitutionally does not make this choice legitimate. We cannot forget about this birth-sin.

The possibility to make an application to the Constitutional Tribunal for the Ombudsman is a fundamental tool to repair systemic problems. Theoretically, it allows the submission of objections regarding the conformity of the provisions of laws and executive acts with the Constitution to the body which – at least in theory – should assess it independently.

The Ombudsman submitted every year many abstract applications to the Tribunal: 19 in 2014, 21 in 2015, 24 in 2016.This number does not include participation in proceedings initiated by constitutional complaints and requests of other entities. From December 2016, however, due to a problem of the legitimacy of the Constitutional Tribunal, the number of the Ombudsman’s applications decreased to 6. One can ask one very important question: If the Ombudsman sees the problem of the legitimacy of the Constitutional Tribunal, why does he submit any application to the Constitutional Tribunal?

It is important to remember that the Tribunal shall adjudicate most of the cases sitting as a bench of five judges, so there is still possibility that the case will be decided by the legitimate and proper composition and the judgment will be valid.

This is also the reason why one should fight for it. Since the beginning of January 2017, the Ombudsman has been constantly filing applications for the exclusion of these three persons from adjudicating panels in specific cases. In 2017, there were 7 cases in which the Ombudsman decided to submit the requests for removal of an anti-judge from adjudication. Those requests were either left without recognition of simply rejected. In 2018 the Tribunal began to set the dates of hearings or sittings in camera on key issues from the point of view of fundamental rights: the surveillance law, the law which changed the rules on the admissibility of so-called "fruits of the poisoned tree" as the evidence in criminal proceedings and – last but not least – the anti-terrorism law.

The surveillance law case illustrates the problem very well. The Ombudsman addressed the application to the Constitutional Tribunal at the beginning of 2016. At that time, Andrzej Rzepliński was still the President of the Court. To consider this case – as of special importance – the President appointed the full bench of the Constitutional Tribunal. When the presidency was taken over by Julia Przyłębska, she decided (against the law) that the case would be judged by a five-person bench, in which two anti-judges would sit: Mariusz Muszyński and Lech Morawski. In September 2017, the Ombudsman drew attention to the lack of a legal basis to change the composition of the court in the present case. Changes can be made (Article 38 paragraph 1 of the Act on the functioning of the Constitutional Tribunal) in justified cases, in particular due to the subject matter being examined. Then, the president of the Constitutional Tribunal may appoint a judge-rapporteur, leaving the rule in accordance with the alphabetical order. But he/she cannot change the composition of the full bench to five people. And the replacement of the judges in the composition may take place only as a result of the expiration of the mandate of the referee or the exclusion of the judge. None of this was the case. Instead, Julia Przyłębska on February 14, 2018, again changed the composition of the court by removing one of the “proper” judges and by appointing another anti-judge. Since the application to exclude the anti-judges was not considered at all, the Ombudsman finally decided to withdraw the whole application. According to the law, the Tribunal cannot do anything else than discontinue the proceedings. Surprisingly, this was not the end. Muszyński (who also acts as the Deputy President of the Tribunal) attached a dissenting opinion to the decision, in which he personally attacked the Ombudsman, Adam Bodnar, claiming that by withdrawing the application, he acted against his oath. This should justify – in Muszyński’s opinion – the dismissal of Adam Bodnar.

This attack did not stop Adam Bodnar from continuing his job to the best of citizens. On 24th April, 2018 the Ombudsman was officially informed that the anti-terrorism law will be adjudicated during the sitting in camera on May 24th. Surprisingly, the composition of the adjudicating bench was changed again from the full chamber to 5 judges. And – not surprisingly – again, Muszynski was appointed as the judge-rapporteur. This time the Ombudsman did not even have a chance to prepare a motion to exclude Muszynski and another anti-judge, since the law gives only 7 days for the decision on withdrawal of the application. No other decision was possible.

The anti-terrorism laws, as well as surveillance laws or the laws on the "fruit of the poisoned tree" conformity with the Constitution and international agreements are still highly dubious. But, as I have previously explained, letting the Tribunal adjudicate cases in incorrect composition, creates the possibility of undermining legal certainty and would deepen legal chaos, leading to the possible non-existent sentences. According to Article 45 para 1 of the Polish Constitution, everyone has the right to a fair and public hearing without unreasonable delay by a competent, independent, impartial and independent court. This right includes a very important element, which is obviously the right to have cases considered by the legitimate composition of the court. This is a European standard. The Ombudsman therefore must use all possible instruments to safeguard the legal certainty and to prevent from opening the door for questioning Tribunal’s judgments by international courts or institutions (cf. for example the reasoning of the preliminary reference of the Irish High Court in case C-216/18 PPU).

In his dissenting opinion, M. Muszyński claims also that the Ombudsman – by withdrawing the application – violates the principle of loyal cooperation between state institutions. This argument is clearly based on the misunderstanding of the role of the Ombudsman – this is an independent body, appointed to act impartially, with the utmost care and dignity. Therefore, it requires a thorough analysis of each case without regard to the assessment of his person by anybody, and only for the benefit of citizens.

The three cases only illustrate how easy it is to manipulate the adjudication panel – where the problem is systemic and important for the authorities, it is almost always M. Muszyński who is judge-rapporteur or at least a member of the bench. He himself admitted recently (cf pt 3.2.1.) that ensuring the efficient functioning of the Tribunal means the possibility of determining compositions in situations that have not been specified in the law, such as for example changes of the judge-rapporteur in cases in which the bench cannot accept the draft decision.

However, where there is no political significance of the case it is still possible to get the sentence issued in the correct composition. Look for example at the case K 53/16, on profiling of the unemployed person, soon to be considered by the legitimate 5-judges bench.

This is not the end of the fight of the Ombudsman for the constitutionality of the above-mentioned laws in Poland. However, since the road via Constitutional Tribunal is almost impossible now, the other legal possibilities must be considered, such as presenting constitutional arguments in cases pending before common or administrative courts. One may not also forget that it is the executive authority that still may propose relevant amendments to the law – the Ombudsman will definitely continue his dialogue with the executive and legislative authority hoping that it is still possible to find balance between effective powers of the law enforcement agencies and citizens’ rights. Adam Bodnar still has 2 years and 4 months to act.

Disclaimer: The author is the Director of the Constitutional, International and European Law Department at the Office of the Ombudsman of the Republic of Poland.

The Polish President Andrzej Duda has just announced that on 10 and 11 November a referendum will be held in Poland on the need to amend the Constitution, in which he will put to the Polish people numerous questions arising from ongoing public consultations.

This consultative referendum is an attempt to delegitimise the Constitution, on which the referendum’s own legitimacy is based (Article 125 states that a referendum can be held on matters "of particular importance to the state”).

President Duda has been trying for some time to convince citizens that the current Constitution, which is barely 20 years old, is outdated. He has even advanced the bizarre argument that every generation should have its own constitution, and that young people such as his daughter (currently studying law) did not vote in the current one.

The President has a second, anti-elite argument: that the current method of constitutional amendment is undemocratic. According to Article 235 of the Constitution, amendments require a qualified majority in both houses of parliament; if an amendment concerns key chapters of the Constitution, a referendum is also required. President Duda argues that amendments are prepared by the elite, with their outcomes only presented to citizens for their approval. Therefore on this occasion, instead of amending the Constitution in the usual manner, the President has taken the road less travelled: a general consultative referendum under Article 125. Despite its “consultative” nature, the referendum will be binding if participation exceeds 50% of the electorate.

The President’s consultations on the subject of amending the Constitution are no doubt motivated by the hope of a binding result despite his political camp’s lack of a constitutional majority in parliament. Although ostensibly extensive, the Presidential consultations over the amendment are not entirely open: after all, he determines the participants and the agenda. For instance, the crucial issue for the President is whether Poles prefer the parliamentary-cabinet system of government or a presidential one. The President naturally supports a change towards the latter.

Another of the President’s favour topics for discussion is the issue of primacy of the Polish Constitution over European law. Despite holding a PhD in law, the President seems to have forgotten that Article 8 of the Constitution clearly stipulates that the Constitution is the highest law in Poland and that the Polish Constitutional Tribunal has on several occasions proved this hierarchical advantage in assessing whether the European treaties comply with the Polish Constitution.

What is more, in the eyes of the President, not all constitutional topics are created equal: the presidential consultations show no willingness in to tackle subjects such as increasing the independence of the judiciary or amending the constitutional definition of marriage as a union between a man and a woman, which for many is an obstacle to the legalization of same-sex marriage in Poland.

The procedure chosen by the President for the referendum is also questionable. To understand why this is so, consider if the President would agree to a consultative referendum on whether he should be brought before the State Tribunal, or on whether he is able to continue to discharge his duties?

His answers to such a request would likely be “No!”, mainly because affirmative answers to the two referendum questions (if the referendum were binding) would make it impossible for him to continue to discharge the duties of his office – at least for some time. The President’s legal advisers would doubtless respond that the Polish Constitution provides for special procedures for finding that the President is unable to discharge his duties. And they would be right: Article 131 states that the Constitutional Tribunal will, on the request of the Speaker of the Lower House of Parliament, determine whether or not there is any impediment to the President holding office, while permanent incapacity is determined by the National Assembly; Article 145 allows for bringing the President before the State Tribunal on the application of 140 members of the National Assembly with the votes of a two-third majority of the statutory number of members.

Thus, even the President’s legal advisors would argue that using a referendum to remove him from office would be circumvention of the Constitution. In this I fully agree with them. Why then is the Polish President proposing a consultative referendum that could lead to the current Constitution being questioned, if that same Constitution provides for a special amendment procedure? The terms of that procedure are laid out in Article 235: the National Assembly adopts amendments to the constitution, and in some cases an amendment is then put to an approving (not consultative) referendum. Thus, as would be the case with questioning the current President’s right to hold office, using a consultative referendum to amend the Constitution is circumvention of that very Constitution, not to say an abuse.

If a referendum to remove the President from office is constitutionally pointless, then the referendum to be held on 10 and 11 November is equally pointless. The Constitution is a rationally functioning whole and if it provides a specific procedure for any measure, this procedure should be applied. To do otherwise is to engage in an inadmissible circumvention of the Constitution, and a reductio ad absurdum of matters of State.

One can certainly proclaim that the issue of whether the President is able to hold office and whether he should stand before the State Tribunal are matters “of particular importance to the State” and thus matters for which Article 125 of the Constitution allows a consultative referendum to be held. If one takes that path, the arguments presented by the President to justify a referendum on the Constitution could be used to justify a referendum removing him from office: there are no taboos, everything should be discussed, Poland needs a President for the 21st century, the current incumbent is outdated, my son did not vote for him and would like to have his own, to date Poles have voted for candidate selected and groomed by the elite, and in the referendum they could be asked who their dream candidate would be (e.g. what sport he should play and whether he should respect the Constitution). This hardly seems a good direction for a modern state to take.

Dear Judges of the Court of Justice of the European Union,

soon you are to decide whether, despite massive legislative changes, the Polish judiciary is still independent and therefore able to ensure a fair trial to people extradited to Poland on the basis of a European Arrest Warrant. As a Polish lawyer, I have decided to use an old tradition of the amicus curiae letter – a letter from a friend of the court – to depict the situation of the Polish judiciary in 2018.

In order to do so, I have decided to step down from an abstract level of legislative changes and describe the situation of the Polish judiciary from the perspective of an individual. Therefore, let me present you with 10 facts that have a direct impact on the circumstances of every defendant currently subject to the Polish judicial system. For each fact I have provided several sources, the majority of which are only available in Polish but can be officially translated at your request should the need arise.

Fact 1: Political objectives of the governing party concerning crime and punishment

The Polish Minister of Justice’s explicitly stated political aim is to toughen criminal policy. On April 24th the Minister held a press conference during which he announced a new campaign against crime as part of a comprehensive reform package presented to the general public under the name "Justice and Security”. According to the information published on the Ministry of Justice’s website, “the introduction of the changes – besides the reform of the prosecutor’s office and courts – will be the most important task of the Ministry of Justice”.  At the press conference, the Minister announced a wide-ranging reform of the penal code, stating that “the penalties must be adequate to the fault. They must effectively deter criminals (…).” The planned changes will include severe penalties for petty theft, higher penalties for theft of payment cards and hacking of Internet accounts, and higher penalties for bribery.

In April 2018 the Minister of Justice also announced that the government wanted to "radically increase penalties for the most serious economic crimes”. As regards the enforcement of penalties, measures would be taken to ensure that incarceration became "a kind of shock, an experience that will forever encourage functioning in accordance with the legal order”.

On 16 April 2018, in the context of the European Commission’s doubts as to respect in Poland for the guarantee of the rule of law, in a television interview the Prime Minister confirmed that further reforms would be made to the Polish justice system, and stated that the governing party "cannot and certainly will not abandon” the reforms.

The above-described public statements indicate that persecuting defendants is high on the list of the priorities of the governing party. Hence, there is a political pressure to use all the available tools to reach this goal.

Fact 2: Political control over prosecutors

The Minister of Justice is both an MP of the governing party and Poland’s prosecutor general. As prosecutor, he possesses all the competences of a regular prosecutor plus the right to intervene with every case and command rank and file prosecutors to do whatever he wishes. The Polish constitution does not allow MPs to be prosecutors (see Article 103 point 2 of the Polish Constitution¹⁾“No judge, public prosecutor, officer of the civil service, soldier on active military service or functionary of the police or of the services of State protection shall exercise the mandate of a Deputy.”); despite several attempts to force the Minister to comply with the constitutional requirement, he has refused to do so.

The current government’s new Act on the Public Prosecutor’s Office came into force on 4 March 2016 and led to:

• the position of Prosecutor General being combined with that of Minister of Justice (politicisation of the position of Prosecutor General)²⁾During a parliamentary debate, one of the leading Law and Order politicians, M.P. Stanisław Piotrowicz, stated that "the public prosecutor’s office is the only instrument through which the government can influence court judgments, in order to meet the principle of social justice” (Gazeta Prawna, "Piotrowicz w Sejmie: Niezależne mają być sądy, niezawiśli judges – ale nie prokuratura”)),
• reorganisation of the Public Prosecutor General’s Office (and making a number of personnel changes, e.g. demoting prosecutors holding the highest office) and the introduction of a personnel management system³⁾Resolution of the General  Meeting of Association Members assessing the functioning of the public prosecutor’s office under the Law on the Public Prosecutor’s Office of 28 January 2016,
• creation of a special Internal Affairs Department at the Polish Public Prosecutor’s Office, dealing with preparatory proceedings concerning the most serious offences committed by judges, assistant judges, prosecutors and public prosecutor’s office assistants, and also performing the function of prosecuting authority in such cases before the court.

The changes were widely commented on and criticised by the prosecution service, the opposition and the public.⁴⁾See Michał Magdziak "Zmiany w Prokuraturze: zamiast usprawnienia działania, pogorszenie sytuacji uczestników postępowania”, Analiza Forum Obywatelskiego Rozwoju, 7/2016, 3 March 2016; Helsinki Foundation for Human Rights, "Opinion on the subject of draft members' drafts of the Law on the Public Prosecutor’s Office and provisions implementing the Law on the Public Prosecutor’s Office (list nos. 162 and 163)”; Supreme Court – Studies and Analyses Bureau, "Opinion on the draft Law on the Public Prosecutor’s Office” The effect of the changes is that the public prosecutor’s office is dependent on the executive authority – the Minister of Justice may directly affect the outcome of criminal cases.

Fact 3: Changes concerning the organization of courts, including criminal courts

The aim of the recently passed amendment concerning the Law of the Organization of the Common Courts – according to the declaration of the parliamentary majority – was to dispel constitutional doubts over the new provisions on the ordinary court system.⁵⁾Act of 12 July 2017 amending the Law on the Ordinary Court System and Certain Other Acts; Journal of Laws of 2017 item 1452. Those provisions gave the Minister of Justice wide powers to appoint and dismiss presidents and vice-presidents of ordinary courts, thereby depriving the judicial self-governing body (the National Council of the Judiciary [NCJ]) of any influence on how these positions are filled.

The changes introduced by the current amendment are, however, a facade and they do not eliminate the lack of compliance with the Constitution of the regulation on the ordinary court system.  The regulation retains a mechanism that enables the executive authority to exert influence on ordinary courts, as it makes the Minister’s decision to appoint or dismiss the presidents and vice-presidents of courts ultimately dependent on the decision of the NCJ. In view of the parallel changes made to NCJ personnel (described in this letter) and the increased influence of the current governing majority on the composition of this body, in practice the changes are of a highly illusory nature.

The right to appoint and dismiss presidents and vice-presidents of courts gives the Minister a significant influence both on the organizational aspect of judicial activity and beyond it. It engenders a risk of transforming openly or covertly into interference in the way judges decide cases. Court presidents (vice-presidents) have not only supervisory administration functions but also certain jurisdictional functions, e.g. related to the allocation of cases to particular judges. Some powers given to presidents (vice-presidents) have an indirect or direct impact on judges' impartiality: giving consent to a judge taking up additional employment, demanding initiation of disciplinary proceedings, ordering an immediate break in a judge’s judicial activities until a resolution is adopted by the disciplinary court. Clear separation of the administrative and strictly judicial functions of court presidents (vice-presidents) is not possible.

The Ordinance of the (current) Minister of Justice dated 28th December 2017 introduced a new electronic system for randomly allocating cases to particular judges.⁶⁾Journal of Laws 2017, item 2481. That system, whose purpose is to promote transparency in the allocation of cases, is fully controlled by the Minister of Justice who – as Prosecutor General – at the same time is a potential party to every court case. Such control is incompliant with the case law of the European Court of Human Rights.⁷⁾See Daktaras versus Lithuania. Moreover, the Ministry refused to reveal the random selection algorithm to a Polish NGO which requested its public disclosure.

Fact 4: Unconstitutional changes to the Polish criminal procedure

After 2015, the current governing majority introduced several changes to the Polish criminal procedure. Those amendments worsen the position of the defendant.

The Act of 11 March 2016 amending the Code of Criminal Procedure and Certain Other Acts introduced to the Polish legal system the rule that evidence obtained illegally, i.e. "fruits of the poisonous tree”, could be admitted in criminal proceedings. According to the new wording of art. 168a of the Code of Criminal Procedure (CCP), "evidence cannot be found inadmissible solely on the grounds that it was obtained in breach of procedural provisions or through a prohibited act referred to in art. 1 §1 of the Criminal Code, unless evidence was obtained through a public officer discharging his official duties, as a result of: murder, intentional bodily harm or imprisonment”.

The introduction of this Act was strongly criticised both by the judiciary and the public.⁸⁾Opinion of the National Council of the Judiciary of 22 March 2016 on the Act of 11 March 2016 amending the Code of Criminal Procedure and Certain Other Acts, adopted by the Polish parliament; Dr hab. Prof. Uniwersytetu Jagiellońskiego Paweł Laidler, "Trujące owoce zatrutego drzewa”, Instytut Obywatelski, Analiza 2016/10 The effect of the changes it introduces is that state authorities can obtain evidence in breach of the law and subsequently use it in criminal proceedings. This could lead to culpable breach of the law by state officials without them bearing any consequences. The changes also show that the legislature has no respect for established case law of ordinary courts and is in clear breach of the constitutional standard.

Further legislative changes enormously strengthen the position of the prosecutor vis à vis defendants. According to Article 137 point 2 of the Law on the Prosecutor’s Office, enacted in 2016, a prosecutor does not bear a disciplinary responsibility for acting in a way that blatantly infringes the law, if he or she acts solely for the public interest. As the term “public interest” is extremely vague, such a regulation constitutes an open encouragement for prosecutors to act illegally while performing their duties.

Another recently enacted regulation allows a prosecutor to withdraw a case from the court at his or her will several times without giving the court a countervailing right to oppose that withdrawal and resubmit the case later.⁹⁾Article 10 of the Amendment on the Law on the Organization of Common Courts, dated 30th November 2016. The withdrawal of the case does not mean the defendant is acquitted – to the contrary, he or she remains accused and is forced to wait for the resubmission of the case. That regulation can be used by the prosecutor when he or she expects the case to be dismissed in order to enhance it and resubmit when new evidence is gathered. With no countervailing right of the court or the defendant to oppose such a move, the prosecutor can extend the trial as long as he or she wishes.

Fact 5: Inability to challenge the constitutionality of the amendments to the criminal procedure before the Constitutional Tribunal

The natural way of questioning unconstitutional legislation is to challenge it before a constitutional court. Unfortunately, this is no longer an option in Poland. In 2015, the current parliament arbitrarily decided that the appointment of three judges to the Constitutional Tribunal (CT) made by the previous parliament was invalid and elected three other judges in their place; moreover, the President took the oath from the later-elected judges, having refused to take the oath from the three judges nominated by the previous parliament.

Since 19 December 2016, a total of five unauthorised persons (M. Muszyński, L. Morawski [and after his death J. Piskorski], H. Cioch [and after his death J. Wyrembak]) have taken part in passing CT judgments. In a move contrary to the Polish Constitution, one of these unauthorised persons was appointed vice-president of the CT (M. Muszyński).   In 2017 the CT issued a total of 88 decisions, while since their appointment these unauthorised individuals have participated in passing 81 decisions; this leaves doubts as to the legality of a majority of recent CT decisions.

In addition to that, a motion filed by the Minister of Justice questioning the legality of the 2010 appointment of the three sidelined judges has led to their being effectively suspended by the Head of the CT. Consequently, in every case to come before the CT, an application has been filed for these judges to be removed. As the CT has still not examined the application on the matter of their election,  these judges have been excluded from judicial activities (e.g. in case nos. Kp 4/15 and Kp 1/17). Given the lack of explanation for why the Minister’s motion has not been examined for over a year now, the situation can be interpreted as a coordinated manoeuvre by the Minister of Justice and the Head of the CT to unconstitutionally suspend the three judges elected in 2010 .

Politicians of the government majority participate in informal meetings with judges at the CT. As stated by S. Biernat, former CT Vice-president "Justice Minister Zbigniew Ziobro, Deputy Justice Minister Marcin Warchoł, Special Services Coordinator Mariusz Kamiński and Member of Parliament Arkadiusz Mularczyk have been seen at the Tribunal”. The CT’s office admitted that politicians were received in the CT’s building.

Art. 38 of the Act on the Organisation and Procedures of the Constitutional Tribunal states that CT judges, including the presiding judge and the judge-rapporteur, are appointed to the bench by the President of the Tribunal in alphabetical order, having regard to the type, number and order in which cases are submitted to the CT. The President of the Tribunal may derogate from the above-mentioned criteria and assign a judge-rapporteur in justified cases, especially in view of the case’s subject-matter.

The decisions of the President of the Tribunal are not transparent. Statistics show a significant disproportion of cases are heard by particular judges – since December 2016, judges appointed by the current parliament are preferred, while those appointed by the previous parliament are discriminated against. For instance, M. Muszyński has been in the panel in 32 cases since his December 2016 appointment by the current Parliament in a manner contrary to the Polish constitution. In the same period, Judge Zubik, whose 2010 appointment has been questioned by the Minister of Justice, has not sat on any panel. In previous years, Judge Zubik was in the panel in 342 cases (an average of 57 cases per year).

In addition, in a recently published decision of the CT, M. Muszyński admitted that the President of the Tribunal changes the judge rapporteur at will if the panel does not agree with the judge rapporteur’s view on the case. The lack of procedure for such a change makes it entirely opaque.

The changes at the Tribunal have led to a drop in public confidence in the institution and consequently in the number of cases submitted to it:

• In 2014, 530 cases were taken to the CT, including 375 individual constitutional appeals,
• In 2015 r. 623 cases were taken to the CT, including 408 individual constitutional appeals,
• In 2016, 360 cases were taken to the CT, including 267 individual constitutional appeals,
• In 2017, 282 cases were taken to the CT, including 231 individual constitutional appeals.¹⁰⁾Batory Foundation report „Analiza działalności orzeczniczej Trybunału Konstytucyjnego w latach 2014 – 2017”.

The significant decrease in the number of individual constitutional appeals between 2015 and 2017 should be interpreted as a sign of distrust in the CT’s ability to protect individual constitutional rights effectively.

The number of questions referred by the regular courts to the CT has also dropped significantly. The number of referrals in 2015 amounted to 135, while the number of referrals in 2017 was only 21. This decrease should be interpreted as a sign of distrust in the CT’s ability to decide constitutional cases which are important for regular courts, including criminal courts.

The best illustration of the inability to challenge the constitutionality of the legislation before the CT is the Human Rights Ombudsman’s (HRO’s) attempt to challenge the constitutionality of the legislation introducing the “fruits of the poisonous tree” (use of evidence obtained in breach of procedural provisions or through a prohibited act) into the Polish criminal procedure.  In an application of 6 May, 2016, the HRO applied to the CT for a judgement on the constitutionality of allowing into criminal proceedings evidence obtained in breach of procedural provisions or through a prohibited act. In April 2018, the HRO was forced to withdraw the application due to the CT President’s unlawful interference in the composition of the bench hearing the case. Originally the case was to be heard by a full bench, but after J. Przyłębska became CT President in December 2016, the bench was groundlessly changed to a bench of five judges, on which sat two unauthorised persons: M. Muszyński and L. Morawski.

Then, two CT judges elected by previous parliaments were removed from the case. The case was finally heard by the CT in a bench chosen entirely by the current parliament. The same thing occurred in March 2018 in the case of an application filed by the HRO concerning the constitutionality of a law amending the rules for surveillance by the secret service.

As a consequence, Poland’s CT in is not at present meeting its constitutional obligations. Nor is it able to protect citizens against the infringement of their constitutional rights and freedoms as a consequence of unlawful measures taken by the executive authorities and of the legislative lawlessness of the legislator. The CT’s inability to perform its constitutional function is of utmost importance to the individuals involved in criminal cases. Not only are they deprived of the possibility to challenge the legislation influencing their rights via general constitutional motions (like those filed by the parliamentary opposition or HRO), but they cannot be sure their individual constitutional appeals (filed after the individual trial has ended) will be examined by an independent constitutional court.

Fact 6: Limitations to regular courts performing a constitutional review

With the CT ceasing to fulfil its function of providing centralised constitutional review, the only alternative is the decentralised variety, performed by the regular courts. Such decentralised constitutional review is actively combated by the Minister of Justice, who has criticized judges for performing it and threatened them with disciplinary proceedings. As a result, no effective constitutional review concerning legislation on evidence admissible in criminal cases is currently performed.

An example of an attempt to exert influence on the justice system in criminal cases are statements made by representatives of the Ministry of Justice in the wake of a judgment issued by the Court of Appeal in Wrocław in April 2017, in which the court made a decentralised constitutional review. The Court refused to apply criminal provisions which it deemed clearly contrary to the Polish Constitution, without referring the question concerning their constitutionality to the CT (an action based on Article 8 point 2 of the Polish Constitution). The case involved provisions on evidence obtained in breach of procedural provisions or through a prohibited act (i.e. 'fruits of the poisonous tree'). The Court found persons accused of corruption which had been provoked by entrapment on the part of the Central Anti-Corruption Bureau not guilty of the acts of which they had been accused. The Court found that evidence obtained in a manner contrary to the Polish Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms is not admissible.

In a press release responding to the decision, the Deputy Minister of Justice, Marcin Warchoł, compared the reasoning of the Court of Appeal in Wrocław with reasoning which would cite the constitutional protection of individual privacy to justify "being acquitted of sexual intercourse with an 11-year old”; he then suggested that issuing a judgment in the case in question could (implicitly for judges) lead to disciplinary or criminal liability ("In this case, the issue not only of disciplinary, but also of criminal liability remains open”).

Fact 7: Threats of disciplinary and criminal proceedings against judges

The Minister of Justice and his deputies in their public statements threaten judges with disciplinary and criminal proceedings, trying to influence judicial independence by doing so.

For instance, the Minister of Justice publicly criticized the judges of the District Court for Warszawa-Mokotów who refused to accept the prosecutor’s motion for arrest in a criminal case. The Minister said: “The Court could have committed a criminal act by not fulfilling its duties properly”. The prosecutor’s office appealed and the court of higher instance accepted the prosecutor’s motion for arrest. The Polish National Council of Judiciary condemned the Minister’s statement as an attempt to influence judicial decisions concerning arrests. The NCJ stated that “one can have an impression that every judge that refuses to accept the motion of the prosecutor (…) risks criminal liability.

Another example of activities involving the exertion of influence on persons holding judicial office is the case of judge Waldemar Żurek, NCJ spokesman and former court press officer of the Regional Court in Krakow. Judge Żurek has been one of the most vocal critics of the government’s take-over of the judiciary, and he is often present in the media. A description of the actions taken against this judge is set out in a resolution adopted on 26 February 2018 by the Meeting of Representatives of the Krakow District Judges. This resolution shows that law enforcement authorities are "subordinated to political factors” and that for around two years those authorities and recently the newly-appointed President of the Regional Court in Krakow have taken repressive measures against judge Żurek, inter alia:

• he was interrogated five times by the public prosecutor’s office and the Central Anti-Corruption Bureau during groundless proceedings, already lasting almost eighteen months, concerning an inspection of a declaration of financial interests;
• contrary to the law, these proceedings had been conducted for six months without having been formally opened;
• measures were taken to harass and interrogate judge Żurek’s parents, who are both over seventy years old;
• a smear campaign was run in the media against judge Żurek, which led to a wave of hate speech against him in the form of numerous telephone calls and text messages, some of which contained threats;
• unjustified checks were carried out of the financial standing of judge Żurek’s wife (who is six months' pregnant);
• inspection of cases heard by judge Żurek were ordered by the Minister of Justice on the basis of anonymous reports;
• harassment took place: judge Żurek was removed from his position of court press officer despite the absence of the required opinion from the court College, and one of the persons who opposed the measure – Judge Ewa Ługowska – was dismissed as President of the District Court in Wieliczka.

One of the elements of the reforms concerning the Supreme Court was to establish a new Disciplinary Chamber, responsible for disciplinary proceedings concerning judges. The members of the Disciplinary Chamber will be appointed by the new NCJ, whose members are closely linked to the Minister of Justice. To encourage candidates to apply to join the Disciplinary Chamber, the new legislation stipulates that the members of the Chamber will receive 40% additional remuneration for performing their duties.

The Minister of Justice’s public statements indicate that he intends to use the Chamber as a tool to limit judicial independence. For instance, the Minister of Justice publicly stated that the judges who refuse to apply Polish statutes because they find them non-compliant with international conventions can face disciplinary proceedings, and that the newly established Disciplinary Chamber at the Supreme Court is necessary to take care of such cases.

The scope of this letter does not allow all the examples of harassment of judges by the Minister of Justice or his deputies to be presented. Those cases include judges in courts in Suwałki, Szczecin, one deciding a private case of the Deputy Minister of Justice Patryk Jaki and another in Krakow who acquitted doctors in a case concerning the death of the Minister of Justice’s father. (The latter judge has been accused of spending too much money on the opinions of the expert witnesses .)

Public statements by the representative of the Ministry of Justice and the harassment of prominent judges has very likely caused a chilling effect on other judges, thus impacting their independence in deciding cases.

Fact 8: The new way of appointing the National Council of the Judiciary and its impact on disciplinary proceedings concerning judges

As a result of legislative changes concerning the NCJ, the legislature (Polish parliament) can now elect 21 of the 25 members of the NCJ, and the mandate of previous judicial members of the NCJ expired on the election of 15 new members by the Polish parliament.

The majority of the new judicial members are closely related to the Minister of Justice, and thus to the government. This is because most of them were chosen from among candidates with links to the Minister of Justice, i.e. persons working at the Ministry of Justice and reporting to the Minister in the past,¹¹⁾Paweł Kazimierz Styrna – a judge formerly delegated to carrying out administrative tasks at the Ministry of Justice; Rafał Puchalski – a judge formerly delegated to carrying out administrative tasks at the Ministry of Justice; Maciej Andrzej Mitera – a judge formerly delegated to carrying out administrative tasks at the Ministry of Justice. and persons appointed to administrative positions in courts by the Minister of Justice (since July 2017 appointments are made without the participation of the judicial self-governing body).¹²⁾Dariusz Drajewicz – Vice-president of the Regional Court in Warsaw appointed by the Minister of Justice on the application of the court president on 13 September 2017; Jarosław Dudzicz – President of the Regional Court in Gorzow Wielkopolski appointed by the Minister of Justice on 27 November 2017; Maciej Andrzej Mitera – President of the District Court for Warszawa-Śródmieście in Warsaw appointed by the Minister of Justice on 7 February 2018; Rafał Puchalski – President of the Regional Court in Rzeszow appointed by the Minister of Justice on 1 February 2018; Maciej Nawacki – President of the District Court in Olsztyn appointed by the Minister of Justice on 19 December 2017; Paweł Kazimierz Styrna – Vice-president of the Regional Court in Krakow appointed by the Minister of Justice on 7 February 2018.

Parliament’s decisive influence on the personnel of the NCJ has led to:

• imbalance in the separation of powers and breach of the principle of independence of the judiciary;
• a significant fall in the guarantee of judicial impartiality due to the judges being deprived of influence on the personnel and activities of the NCJ, with a simultaneous increase in the influence of the legislature (parliamentary majority), and thus to a fall in the guarantee of the proper exercise of the constitutional right to a fair trial;
• by extension, an increase in political influence over who holds the position of judge (the NCJ has a constitutional duty to put forward candidates for judges of courts of all levels and types).

The effect of the changes on proceedings in criminal cases create a risk of the parliamentary majority having an indirect influence on the holders of judicial office in criminal sections of ordinary courts and justify doubts as to the impartiality of judges appointed under the post-amendment NCJ.

What is more, the new NCJ will be directly responsible for appointing all judges of the newly created Disciplinary Chamber in the Supreme Court. The Minister of Justice, having control over the NCJ, will influence the appointment of members of the Disciplinary Chamber. This will be a clear breach of the constitutional order

Fact 9: Other factors endangering the position of the defendant

Besides the facts described above, there have been many other factors negatively affecting the guarantees of a fair trial in Poland. In 2017 and 2018, defence lawyers have been increasingly forced to disclose information received within the attorney-client privileged communication. As the Dean of the Warsaw Bar Association, Mikołaj Pietrzak, stated: “Last year we had 60 such cases, this year already several dozen”. The HRO indicated that in 2017 the courts released attorneys from the confidentiality obligation in 67% of cases in which prosecutors asked for such release. The phenomenon poses an obvious threat to basic procedural guarantees in criminal justice.

New tools given to the Minister of Justice by the statute concerning the Supreme Court include the right to submit an extraordinary appeal. This tool allows the Minister to reopen almost every court case of the last 20 years, as well as almost every case, including criminal ones, on which a final decision will be made in the future. If the case is reopened, it will be decided by yet another new chamber of the Supreme Court which will be soon appointed by the NCJ, which is in turn fully controlled by the Minister (see Fact 8).

New legislation enacted within last two years allows for a broad invigilation of Polish citizens. This legislation cannot be challenged before the Constitutional Tribunal for reasons described above (Fact 5). This legislation gives the government the upper hand in criminal proceedings, leaving the defendant unable to protect his or her constitutional rights.

Fact 10: A systematic threat to the rule of law and to the possibility of a fair trial in Poland

Recent government measures have led to deterioration in the rule of law in Poland, which has affected proceedings and decisions in criminal cases.

The measures have resulted in:

• the public prosecutor’s office becoming dependent on the executive authority;
• legislation of the use in criminal proceedings of evidence obtained in breach of the law, contrary to the Polish Constitution;
• paralysis of the Constitutional Tribunal, the body set up to carry out constitutional reviews of the law and to protect constitutional rights and freedoms;
• the previously autonomous authority, the NCJ, becoming dependent on the legislature and the Minister of Justice;
• the risk of the parliamentary majority having an indirect influence on judicial appointments in criminal sections of ordinary courts;
• the risk of the executive authority influencing the appointment of Supreme Court personnel, in particular the Disciplinary Chamber and the Chamber responsible for extraordinary appeals;
• attempts by the executive authority (the Minister of Justice) to exert pressure on judges, including judges carrying out "decentralised constitutional reviews";
• politically motivated appointments and dismissals of presidents and vice-presidents of courts;
• the harassment of judges and the creation of a chilling effect, which result in the infringement of judicial independence.

I trust the above-presented facts will be of help in understanding the circumstances of every defendant currently subject to the Polish judicial system.

Yours faithfully,

Marcin Matczak

Setting the stage: Constitutional Plots, Characters and Stakes

In the judgment of 18th of April 2018 of the logging case (C – 441/17) the Court of Justice („the Court”) ruled (unsurprisingly) that by carrying on logging activities on the NATURA 2000 site, the UNESCO-protected Białowieża Forest, Poland has failed to fulfil its obligations under EU law. For any student of EU law the case might look like a simple one that on the day of its resolution would join hundreds of infringement cases heard and decided by the Court every year. However, this prima facie simple case belongs to the annals of the European jurisprudence for three reasons other than the judgment itself. First, for its unprecedented circumstances and procedural twists and turns that preceded the ruling on the merits. Second, the courts can only do so much without the active support of the political institutions and this case teaches us a painful lesson about the limits of the courtroom when such support is lacking. Third, it shows that the Treaties do contain legal tools to respond to the recalcitrant member states riding roughshod over the core values and principles of the EU legal order. For that to happen however, political will to stand up for the EU essentials must go hand in hand with the imaginative judicial interpretation(s). When the former is missing, the latter loses all its deterrent effect.

Act One. „Hope, Purpose and Resistance”

In C – 441/17R the Commission asked the Court, pending the judgment in the main proceedings, to order Poland to cease, except where there is a threat to public safety, the active forest management operations, including, inter alia, the removal of centuries-old dead spruces and the felling of trees as part of increased logging in the Białowieża Forest. By order of 27th July 2017, the Vice-President of the Court provisionally granted that request pending the adoption of an order terminating the proceedings for interim measures. Despite the provisional order, the logging not only continued but intensified. In an act of defiance unprecedented in the history of European integration, Poland openly rejected the order and refused to stop logging. As a result huge chunks of the forest are gone forever (for full scale of devastation see the report here that shows the scope of logging activities after the Court has issued its first order). The paranoid politics of resentment reached its peak when Poland asked for the removal of Białowieza from the UNESCO World Heritage list! How would the court respond to this? The answer was unequivocal and strong: with its own logic and language of the “new legal order” – the rule of law, effet utile and credibility of commitments voluntarily accepted at the Accession.

On November 20, 2017, the Court sitting as the Grand Chamber (which in itself is unheard of in the interim proceedings) decided the case. The Court responded forcefully that article 279 TFEU must be interpreted as conferring on the Court the power to prescribe any interim measures that it deems necessary in order to ensure that the final decision is fully effective. In the Court’s own words:

[…] once the matter is before it, the Court hearing the application for interim measures must satisfy itself that the measures that it is minded to order are sufficiently effective to achieve their aim. It is specifically for that purpose that Article 279 TFEU grants the Court a broad discretion, in the exercise of which it is empowered, inter alia, having regard to the circumstances of each case, to specify the subject matter and the scope of the interim measures requested, and also, if it deems appropriate, to adopt, where necessary of its own motion, any ancillary measure intended to guarantee the effectiveness of the interim measures that it orders (para 99)

The part „once the matter is before the Court” is both a powerful reminder of the logic of the courtroom, and serves as a message sent to the politics of resentment. The command to ensure the observance of the „law” empowers the Court to interpret a specific jurisdictional attribution (in this case Article 279 TFEU) accordingly. Respect for the „law” means that the Court must be able to ensure the effectiveness of an order directed at a party pursuant to Article 279 TFEU, by adopting any measure intended to ensure that the interim order is complied with by that party. Such a measure may entail, among others, a periodic penalty payment to be imposed in case the relevant party does not respect that order.

Then, in the two most consequential paragraphs 101-102, the Court finally met the politics of resentment head-on. The Polish government argued that only Article 260 TFEU empowers the Court to impose sanctions on the Member States. Poland’s interpretation of this provision was that it is first for the Commission to bring an action for failure to fulfil obligations pursuant to Article 258 TFEU and it is only if the Court upholds that action and Poland fails to comply with the Court’s decision that the Commission will then be entitled to bring an action pursuant to Article 260 TFEU. Clearly, the Court was less than impressed. In response to this line of argument, it stressed first that a periodic penalty payment cannot, in the circumstances of the present case, be seen as a punishment. Second, the Republic of Poland’s interpretation of the system of legal remedies under EU law in general, and of proceedings for interim measures in particular, would have the effect of considerably reducing the likelihood of those proceedings achieving their objectives. Allowing Poland’s argument to stand would be tantamount to sanctioning impunity and letting the rogue government dictate the rules of the game. It is for the court, and not for political instrumentalisation and expediency, to dictate the rules of the game.

In para 102 of the order, the Court left no doubt that:

The purpose of seeking to ensure that a Member State complies with interim measures adopted by the Court hearing an application for such measures by providing for the imposition of a periodic penalty payment in the event of non-compliance with those measures is to guarantee the effective application of EU law, such application being an essential component of the rule of law, a value enshrined in Article 2 TEU and on which the European Union is founded

In the light of the circumstances of the case, the Court found it necessary to bolster the effectiveness of the interim measures granted by providing for penalty payments to be imposed if Poland fails to comply immediately and fully with the interim measures. The objective of the penalty is to discourage Poland from delaying its compliance with the Court’s order. To that end, the Court ordered Poland to send to the Commission, within 15 days of notification of the order, details of all measures that it has adopted in order to comply fully, and to justify those active forest management operations at issue that it intends to continue because they are necessary to ensure public safety. If the Commission is of the view that Poland has failed to comply fully with the order, it will be able to request that proceedings be resumed. The Court would then decide, by way of a new order, whether the initial order has been infringed. Should such infringement be found, the Court will order Poland to pay to the Commission a penalty payment of at least € 100,000 per day, from the date of notification of the initial order to Poland until Poland complies with the Court’s order or until final judgment in the case is delivered.

Now on to the Act Two.

Act Two: „Strategic player”

Kim Lane Scheppele has already shown how the approach of the Commission must change in response to the Member States’ blatant undermining of the foundations of the EU law. Her bold proposition of systemic infringement actions against the member states that violate core values of the EU is based on two assumptions. First, that the Court will be able to recalibrate its mandate and reinterpret its jurisdiction. Second, that the Commission will be up to the challenge of interpreting its role in the infringement actions as both the supplicant, and enforcer. Shift towards systemic infringement actions calls for strategic reading of the Treaties. „Strategic" means that a political actor puts a premium not only on words, but also on actual actions. This confirms M. Shapiro’s argument that „in the realm of judicial behaviour, what judges say, what rules they announce and/or threaten to announce is often a more significant aspect of their behaviour than how they vote” (Can Judges Deliberate?, Third Annual Walter W. Murphy Lecture in American Constitutionalism, Princeton University, 29 April 2003, p. 3 – paper on file with the Author).

The Court as a political player and actor must absorb the legal change around it and accommodate its case law accordingly. The „logging case” is one such example of judicial accommodation.

Act Three: „Strategic Constitution: When text meets context”

The error of „normative asymmetry” (authority to ensure that Member States remain liberal democracies has not been translated into law yet) becomes less acute when the Treaties are read in a strategic fashion. Systemic violations call for systemic responses. The guardians of the legal order must not let the Treaty („text”) be abused by a rogue government. Enforcement must build the „context”. Art. 19 TEU clearly mandates the Court to ensure that in the interpretation and application of the Treaty the law is observed. My claim is that unfulfilled potential lies in the constructive interpretation of the text in the light of the foundational 1963 judgment of the Court in Van Gend en Loos. What matters is the „the spirit and the general scheme of the Treaty", rather than formalist reading of one legal provision in isolation. The Białowieża case shows that there are legal avenues to pursue before wringing our hands in despair and accepting that nothing can be done. The text is there and there exist institutions to interpret and enforce it. What is needed (and missing) is the political will to make the core principles of the EU law fully operative and respected. Legal order of the EU depends on the Member States’ continuing compliance with the EU laws. Deliberate refusal of a member state to implement EU law is a failure in their duty of solidarity that strikes at the fundamental basis of the Community legal order”. The same must go for a refusal to follow the decision of the Court.

In Commission v Italy the Court held, as if almost anticipating the politics of resentment:

"In permitting Member States to profit from the advantages of the Community, the Treaty imposes on them also the obligation to respect its rules.For a State unilaterally to break, according to its own conception of national interest, the equilibrium between advantages and obligations flowing from its adherence to the Community brings into question the equality of Member States before Community law and creates discriminations at the expense of their nationals, and above all of the nationals of the State itself which places itself outside the Community rules.” (para 24).

The Court continued and added:

„This failure in the duty of solidarity accepted by Member States by the fact of their adherence to the Community strikes at the fundamental basis of the Community legal order.” (at para 25).

When read in this light, the Białowieża Forest case starts a new „existential jurisprudence” and tailors it to the present dangers coming in the wake of the rule of law crisis. Clearly the court-room must not be seen as a problem solver in all circumstances, yet it might offer one powerful mechanism against „exit”. The Court has been always recognized as a powerful political player that is capable of casting its judicial shadow on all the actors in the EU governance. One of the great strengths of a judicial power wielded by a court like the Court of Justice is incrementalism. It both shields the actor, and expands its authority. The Court – political player proceeds incrementally and must be aware of both the opportunities and limitations along the way. The qualification „incremental” is crucial here because “[…] the core of incremental doctrine is respect for the status quo and movement from the status quo only in short, marginal steps carefully designed to allow for further modifications in the light of further developments […] Incrementalism is a theory of freedom and limitation” (M. Shapiro, Stability and Change in Judicial Decision-Making: Incrementalism or stare decisis, (1965) Law in Transition Quarterly Vol. II No. 3 pp. 156-157). However, the judicialization of the EU governance must be understood as a joint enterprise. The Court never functions in a legal vacuum.

This is where Act Four starts.

Act Four: „The Commission is Missing in Action … Again”

The study of impact of any supreme court must go beyond the analysis of „what a court has said”. Therefore, I wish to follow Martin Shapiro’s typology of what he calls varieties of impact studies (The Supreme Court speaks … and what happens? The Impact of the Supreme Court, (1971) 23 Journal of Legal Education 77). According to him, an analysis shall, inter alia, focus on „the whole institutional role of the supreme court and its whole pattern of commands and statements”.

The times of constitutional crisis call for more robust approach to institutions, and their respective spheres of competence and expertise. In the spirit of comparative approach to institutions we must look more attentively at the relative strengths and weaknesses of each institution, and then decide who does what best. The courts of law are in the business of enforcing the rule of law and this this is what they do, and this is what they do best. Of course it does not mean that they are the only players in the rule of law domain. There are other institutions who have their own distinct mandate and competences. Sometimes for an action by one player to be fully effective, a follow-up will be needed. In other situations, a judicial actor will be able to bring about a change through its actions only.

The logging case belongs the former category. Agreeing with the centrality of the question “the court decides, but what happens next?”, the follow-up to the Court’s valiant attempt to defend the integrity of the EU legal order in the Białowieża case must be considered as the most disappointing. The Court threw the Commission a lifeline, and the Commission inexplicably stopped short of applying for the penalties, and never delivered on the constitutional promises of the Court’s order. The lack of the political will to enforce the text (Act Three) has been deafening. In the Białowieża case the process of judicialization of the EU governance called for a concerted action and dual commitments: from the Court and the Commission. The Court did its part, Commission failed and reverted to its bad ways from the past: negotiating with the government who has been giving short shrift to the Commission and to the core values of the EU law for two years and will continue doing that under the pretense of striving for a compromise with the EU. The Commission continues to be missing one crucial element: the politics of resentment are not just one-off aberration. It is a constitutional doctrine with the overarching constitutional themes, plots and characters. The repeated denouncement by the Polish ruling party of the Court’s jurisdiction did not come out of the blue. Rejection of supranational institutions is one of the core elements of the politics of resentment. The Białowieża case shows how this anti-institutional animus is now being extended from the domestic sphere (capture of the Constitutional Court and the judiciary) to the European.

The capture enters a new phase: welcome to the tragedy’s Act Five.

Act Five: „From ‘The Exit in Values’ to ‘The Exit in Legality’

The „exit in values” that has already happened in Poland has now been complemented by “the exit in legality” at the supranational level. No longer is the government seeking to remove itself from the liberal values and norms. It is now also seeking to separate itself legally from the institutions that supervise the respect for these values and norms. At the domestic level, the legality oversight has been removed when the Constitutional Court was destroyed. Now, the time has come to break free from the supranational machinery of control and enforcement. Following the trajectory from the “exit in values” to the “exit in legality” reveals an inescapable logic. All institutions, domestic and supranational, are seen to be standing in the way, and their rejection is part of the comprehensive constitutional doctrine – the politics of resentment. Failure to stop the politics of resentment now only emboldens the doctrine and the people behind it. We have already seen how the passivity and indecisiveness of the Commission in 2015 – 2017 has empowered the Polish politics of resentment. What started as a capture of the constitutional review was soon transformed into an assault on all independent institutions in the country. While the Commission was watching, the capture only gained strength coming from the conviction that Europe will do nothing to stop it. Soon after the Constitutional Court, the politics of resentment claimed new victims – media, Supreme Court, ordinary courts, National Council of the Judiciary. The list goes on … Add now to it the Court of Justice.

Final Act. „From Hope to Despair: Going Beyond Lawyers’ Heads”

The preceding analysis came from the lawyer. Now, for a moment, a citizen in me must speak out. There is one aspect of all this that we must never forget about.

There used to be the last European primeval forest in Poland.

And then the politics of resentment descended.

The pictures of deforestation show what has happened to large chunks of the Białowieża Forest. It must remain the lasting image of the failure of the European governance. While talking to the Polish government (or any Member State for that matter) is always a positive thing in the community of equal states, there has been too much empty dialoguing, extending deadlines and hoping that the change of heart will come after all in the „Polish case”. If anything, Europe has excelled in talking the talk rather than walking the walk. One can suspect (and suspicion is all we are left with as the Commission never addressed the burning question why it stopped short of applying for penalties when faced with the continued logging) that the Commission’s silence has been predicated on the counter-factual assumption that a face-saving trade-off might be in the making along the lines of Commission’s easing down on the interim injunction on the one hand, and Poland backtracking on some of the „reforms” on the other. If this was indeed the reason for the Commission’s inaction in the case, then it would be yet another example of a rotten compromise that sacrifices the constitutional essentials for short-term (and hypothetical, to say the least) political gains.

Yet, the significance of Białowieża Forest case goes beyond here and now. The price to be paid for the institutional impotence and naivety will be much higher than in the case of captured institutions. While the latter might be rebuilt, the unique forest will be soon gone forever. A very high price indeed for institutional opportunism and short-sighted politics of the now discredited „guardian of the Treaties”.

If the destruction of the Białowieża Forest has not been enough to awaken EU, may be nothing ever will. And that might be the long-lasting and tragic legacy of the the tragedy that played out in the Białowieża Forest and then in Luxembourg …

Recently, after a new landslide electoral victory by Viktor Orban, who again managed to win a constitutional majority in the Hungarian parliament, a fresh perspective on constitutional developments in Central and Eastern Europe (CEE) has started taking shape. It could be described as constitutional appeasement.

Accordingly, the argument goes that given a widespread popular support for the constitutionally backsliding regimes in Hungary, Poland as well as elsewhere, we should – as good and open-minded people (and especially as social scientists) – start examining our own theoretical premises from which we have been observing and evaluating the developments in CEE. Perhaps, there is not everything wrong with CEE political and institutional developments? Perhaps, there are some good reasons for those trends? It could be, in some way which is from our constitutional perspective still not quite visible, that those trends are pointing in a better, even right direction and carry the promise of reforming our, admittedly, rather dated and worn-out constitutional conceptions and self-understanding. Why not learning something from the CEE constitutional developments? Let us engage into a dialogue, elevate ourselves beyond and above our constitutional epistemic and normative confines, accept ‘the other’ and build something new, a reformed European constitutionalism, by working closely together with the profoundly democratically legitimated constitutional and political actors in CEE.  In short, the case for a special, distinct conception of Central and Eastern European Constitutionalism indeed could be persuasively made. Is that right?

The Case for CEE Constitutionalism

Let us first study what the content of the alleged CEE constitutionalism might consist of. In normative terms, the emphasis appears to be on collective values. A nation, conceived in ethnic terms, deserves a special constitutional protection. In contrast to liberal democracy, where an individual, irrespective of his or her many natural and social traits, is at the heart of the constitutional order, in illiberal democracy – recently rebranded as ‘Christian democracy’  by Orbán and others – individuals are principally parts of a collective whole, of a nation; and the individuals who ethnically belong to the nation can enjoy more rights as the individuals who do not. This constitutional approach privileges the idea of a common good, understood as the good of the many, over individual ambitions to pursue their own individual conceptions of the good. This paves the way to a more authoritative, more comprehensive and omnipresent use of political power that should be subject to fewer constraints as long as it is exercised efficiently and it (declaratorily) maximizes the common good of the many.

In institutional terms, this translates directly into a lesser need for a sophisticated system of checks and balances. The latter might simply present too many obstacles for an efficient exercise of power.  As the experience shows that especially the judiciary can pose many problems to the smooth implementation of the democratically legitimated legislative and the executive agenda, it is, apparently, appropriate to appoint more deferent and loyal judges, ideologically and politically close to a democratically elected government. For it is loyalty, and this does not go just for the judiciary, but it indeed applies across the range of (semi)-independent (quasi-)executive, (quasi-)judicial institutions, that is decisive for a good functioning of a democratically elected government. The fewer obstacles the government is subject to, the better for the wellbeing of the state and its people. Consent is privileged over dissent. Uniformity and loyalty is a guarantee for the former, diversity, freedom and autonomy lead to the latter. Hence, uniformity and loyalty ought to be strengthened by as deep as possible penetration of the political power in the civil society, by formally and informally, financially and morally awarding the loyal, and, in the same manner, deterring the non-loyal. This, for example, explains, indeed justifies, a special treatment of foreign funded and hence non-loyal NGOs in Hungary, and preferential approach to those civil society groups which are closer to the ruling political party in Poland.

Law and lawyers also play a very different role under CEE constitutionalism. By contrast to Western constitutionalism, where law has won some institutional autonomy from politics and power in general and follows, as well as imposes, certain constraints on power for its fair exercise, the conception of law in CEE countries dates back to the late 19th and early 20th century Europe. CEE countries are Rechtsstaaten in the primitive sense. They are, literally, states with the law, where law is conceived of and, in particular, applied as a mere instrument of (political) power. According to this ancillary conception of law, law can be used and abused for a whatsoever purpose and objective in the public, eg governmental interest. The interests of this rule by the law are achieved simply by conferring a legal form on an essentially arbitrary exercise of political power.   Lawyers too are complicit in this process and have been ready and willing to bend and sacrifice their professional integrity, in the name of loyalty and in exchange for (in)formal rewards, to make this utterly politicized use of the law possible.

Finally, under CEE constitutionalism the governments are allowed, perhaps even obliged, to put their political authority in the service of a particular moral conception of a political community over which they rule. This has, for example, amounted to the protection of traditional values, family life and marriage, privileging a dominant religion in the society, to include the protection of national homogeneity, historical roots of the national identity and finally the very defence of the ‘Christian Europe’. These are the real CEE values, which are simply different from the western, often decadent values that should no longer be imposed on the eastern part of Europe. This is why, eventually, those who have branded this approach to constitutionalism as moralizing, anti-pluralist and hence populist, have simply missed the point. In fact, moralization, anti-pluralism and defence of our people is the essence of CEE constitutionalism in the EU. These are the constitutive elements of the CEE constitutional identity. This identity works for the people and is supported by the people. It is anti-pluralist because it is interested in solutions and outcomes, in maximizing the common good of the people rather than being concerned with checks and balances. Finally, it is moralizing because in this de-moralized, ultimately uncertain times of globalization, under pressure of islamization and further diversification in the population, the people ask for moral guidance and the government simply needs to deliver.

A Critique

What, if anything, is wrong with this argument to recognize, even theoretically, a self-standing autonomous conception of CEE constitutionalism and make room for it inside the public law of the European Union?

The first problem is of a conceptual character. It begs a question, not unlike the one posed by Alice in the Wonderland, whether words can mean just whatever one wants them to mean. Is constitutionalism conceptually elastic enough to cover and embrace even the developments in CEE, to call it CEE constitutionalism? Or, are there, alternatively, certain conditions that any political practice has to meet to be described as constitutional?

Constitutionalism is a social and hence an interpretative concept. It has no essential meaning of its own. However, it does have a conventional meaning, which has evolved out of centuries of interpretative processes reflecting the discursive and political fights in the real world out there. This historical social construction of constitutionalism has put at its heart the individual. Accordingly, each and every individual is recognized an equal human dignity standing for the right of self-fulfilment or self-determination. The right to equal human dignity, in turn, dictates two further primordial individual rights: freedom and equality within the ambit of equal rights of others. These two rights entail that each individual should be free of arbitrary treatment. Any incursion in the freedom and equality of an individual, be it in vertical or horizontal relations, therefore requires a justification. This, namely non-arbitrariness, is, as Martin Krygier has taught us, what the rule of law stands for and what the rule of law is, simultaneously, there to guarantee.

On the other hand, democracy is understood as a vehicle of self-determination and as a means of ensuring freedom of each and every individual. Democracy is a political system in which its subjects are the authors of their own laws. It is a system of self-legislation that, out of recognition of equality, requires an equal opportunity for each individual to take part in a democratic process as inclusive as possible. This equal right to participate in the democratic process cannot be achieved without the rule of law, in an arbitrary environment; and, simultaneously, there can be no meaningful rule of law if the rules are not created in a democratic manner.  This means that a modern conventional understanding of constitutionalism necessarily and intrinsically conjoins the rule of law and democracy in a holistic notion of constitutionalism.  They condition and require all the essential constitutional rights and freedoms, such as freedom of conscience, freedom of speech, freedom of assembly, freedom of education and judicial protection; as well as institutional safeguards in form of checks and balances to ultimately ensure to each and every individual a fair and justified enjoyment of his or her equal freedom.

A political practice, such as that of some CEE countries, which departs from the described conventional meaning of modern constitutionalism in all of its constitutive elements, cannot be persuasively labelled as constitutional. Putting the individual in service of the collective violates the starting point of constitutionalism. Privileging the already dominant religion; closing down channels of communication; clamping down on NGOs and sanctioning non-compliant universities;  undermining judicial independence and impartiality; totalizing power by gradually removing checks and balances etc. – none of that can be convincingly described as constitutionalism without doing violence to the conventional meaning of the term or without committing a error of category. The political practices of the rogue CEE countries do not stand for a special version of constitutionalism. They are not its special eastern brand. By contrast, the practices in CEE are the constitutionalism’s antipode; its denial. They amount to nothing more and nothing less than authoritarianism dressing up in the constitutional language.

If already the conceptual critique of CEE constitutionalism is found successful, then the story can basically end here. The very conceptual basis for describing the authoritarian practices as constitutional is lacking. However, even if the opposite was true and the practice of CEE states could be identified as a special type of regional constitutionalism, the advocates of this account would face a significant political problem. By joining the European Union, they have joined a club whose values are clearly identified and openly incompatible with those proposed by CEE constitutionalism. To claim 10 years later that CEE countries actually have their own values, on which a distinct model of constitutionalism is being constructed, is simply unpersuasive. This argument would not work in any golf club of an average quality, let alone in the European Union, which has been developed as a community of law. The only response such an argumentative move would deserve is: either share our values or leave.

Furthermore, it should be recognized in this context that the argument about the existence of unique CEE values sensu lato does not rest on any convincing historical grounds. To the contrary, CEE has been since the end of the WWII on a permanent road back to Europe. What was then understood as Western Europe was in fact a shared cultural space from which the CEE countries had been forcefully removed by the three totalitarian regimes of the 20th century. The re-assertion of CEE countries, their emancipation as it were, was motivated precisely, even exclusively, by the values that present the backbone of modern constitutionalism. These values were even much more appreciated in the East than in the West, simply because in the East they were much more and much longer violated and trampled upon. To argue, following 2010, that the time has come to put the Western liberal imperialism to an end, amounts to committing a historical error, for bashing something that has actually never existed. To fight liberal imperialism of the West means defying the very values in the name of which and for whose realization the CEE countries have emerged out of the ashes of communism.

In short, history belies the existence of CEE autonomous political, constitutional values, which would be qualitatively at odds with the constitutional values of Western Europe. While of course, these values can be also interpreted and applied differently in different contexts, behind the fundamental boundaries of different polities that EU member states stand for, deep down these different polities all share the basic pre-political foundations of what it takes to create a community of equals, in which the conditions are laid for an inclusive, pluralist, and above all, fair political play between the divergent worldviews and the many competing conceptions of the good.

Next, it is argued, that those who are making the claims in favour of CEE constitutionalism fail to make a normatively convincing case for it. Their pursuit of illiberal democracy as a flagship project of CEE constitutionalism is full of performative contradictions. We are, for example, witnessing politicians defending ‘Christian Europe’ in the utmost non-Christian way. The most vocal proponents of traditional values, family and marriage, show little sign of affording these values a meaningful place in their actual lives. Furthermore, normatively the case has not been made why, say, Christianity, family and marriage, as well as a particular conception of national constitutional identity, could not be defended and even promoted in the ‘Western’ model of constitutionalism. Has it not been precisely constitutionalism, and only constitutionalism, that has made these value-commitments viable and continues to make them possible in practice? Of course, not as part of a political, public power fiat, but as a matter of personal, individual choice within the ambit of respect for equal rights of others. There is nothing in ‘Western constitutionalism’ that prevents the individuals and communities from staying faithful to the traditional values. Indeed, that is one of their constitutional rights, which, however, cannot and should not be imposed on those other individuals and communities who would like to use the very same rights to make different value choices.

Finally, how to respond to the purportedly democratic argument, according to which CEE constitutionalism indeed does exist and should be recognized as such for it has repeatedly won popular legitimation in more than one state? Like in the case of constitutionalism, democracy comes with certain conventional content and meaning too. Admittedly, democracy has been one of the most abused social concepts. Not infrequently, the most undemocratic countries boast with democracy in their names. However, it is clear that shall democracy retain any positive and coherent normative meaning, its conception of the people in whose name and for whom all the powers are exercised must proceed from the assumption that the people are composed of and constitute a community of equals, who deserve and are entitled to equal respect. Building a democracy where a strict dividing line is drawn between us and them; between our people and the others; and whereby in name of our people the power is totalized and those who are different are excluded from it, obviously runs affront the idea(l) of community of equals. Hence, such a democracy is not a democracy in the conventional sense, but a more or less haphazard, arbitrary political system in which the argument of power reigns over the power of arguments.

In CEE countries, where the nominal system of democracy has been so much institutionally and substantively, formally and informally, tampered by a single (formal or informal) ruling political power in favour of its political, economic and civil society clique, a real democracy no longer exists, and what is described as free and fair election is, in reality, just a semblance of it. In short, the more successful and far-reaching constitutional capture of the state, the greater the likelihood for its overwhelming ‘democratic’ support. The examples of the German Democratic Republic, the People’s Republic of China and the Democratic People’s Republic of Korea attest to that point and there are few, if any, who would be willing to describe these countries as democratic in the best conventional meaning of the term.

Conclusion

By way of conclusion, no plausible, let alone theoretically convincing case can be made in favour of existence of a special CEE constitutionalism inside the EU legal common whole.  There are strong conceptual, political, normative, historical and democratic reasons which prove that branding the existing CEE political practices as constitutional in their own, distinct way, separate from ‘Western constitutionalism’, is deeply flawed. The events in CEE post-2010 are not an example of new constitutionalism, but stand for a revival of authoritarianism, which is incompatible not only with the fundamental values of the European Union, but even with the minimal common value denominator of the more encompassing Council of Europe. There should be no room for such political developments inside the EU and, especially, constitutional theory should not be making room for it.

Anna Wójcik: Many critics of the judicial reform pushed by Poland’s ruling party fear that the lack of further decisive activity on the part of the European Commission will lead to the establishment of an undemocratic system of government in Poland. What are the biggest mistakes made by the European Commission in this dispute so far?

Laurent Pech: While one can be critical of the Commission’s efforts so far, and I have myself been quite strident in my criticism, the Commission should be commended first for activating the rule of law framework in January 2016 and then activating for the first time ever, Article 7(1) of the Treaty on European Union in December 2017. Very briefly, Article 7 is the provision which allows the Council of the EU to give a warning before a serious breach of the foundational, common values of the EU has materialised in a specific EU country. I would also like to commend the Commission for the quality of its rule of law recommendations.

Article 7 was, however, activated too late. I personally recommended its activation in November 2016 before the all-too-obvious forthcoming unconstitutional capture of the Polish Constitutional Tribunal which took place at the end of December 2016. The Commission repeated the same mistake in 2017, and should have triggered Article 7 in July rather than giving another window of opportunity to Poland’s ruling party to subjugate the rest of the judiciary. Sometimes I feel the Commission is unable, or rather unwilling, to learn from its past mistakes. However, in the Commission’s defence, it is at least attempting to do something. By contrast, the Council of the EU has been missing in action.

How is the EU position on Poland different now in May 2018 than it was after the July 2017 protests against the reform of the judiciary? 

In December 2017, the Commission finally accepted it had to confront reality, that is, that there is no point attempting to dialogue with a government which was not even willing to accept the existence of any problems on the rule of law front. Activating Article 7, albeit at least five months too late, was the right thing to do. When the Commission did so, it gave three months to the Polish government to implement its recommendations. However, this deadline passed with no implementation whatsoever by the Polish authorities. Instead we were offered a so-called White Paper whose content was so unconvincing, to put it politely, that it was very quickly forgotten.

In the past few weeks, some movement can be seen with the Polish government seemingly starting to feel the pressure for a number of reasons and attempting to find a way of out the crisis it has created by offering some cosmetic concessions. It is to be hoped that the Commission will not settle for a meaningless ‘save-the-face’ compromise, repeating past mistakes that it made when it first sought to do something about the initial signs of Hungary’s descent into autocracy in 2011-13.

Does the EU have any coherent strategy towards Poland (except for appeasement) and any clear goal now?

The EU is not a monolithic organisation and it is not unusual to see different EU institutions, and within these institutions, multiple actors promoting different diagnoses, strategies and solutions. With respect to Poland, it seems to me that Frans Timmermans may have initially believed that the rule of law framework would be enough of a pressure point to constrain or limit the Polish government’s worst autocratic impulses. To some extent, I believe this reflected a failure to fully understand how the new breed of autocrats aim to annihilate the rule of law and an erroneous belief in the urban legend that the Commission had been successful in its past dealings with Orban’s regime.

To return to your question, it would appear that the Polish ruling party, but also the Commission and a number of national governments, are anxious to leave Article 7 behind as quickly as possible. The ongoing discussion on a new mechanism which would allow the Commission to essentially suspend access to EU funding on rule of law grounds appears to be in part an indirect attempt to nudge the Polish government into making concessions.

Should the Polish government make meaningful ones, the Commission would then be in a position to justify the “untriggering” of Article 7 and possibly, we could then also see the new proposed rule of law mechanism being watered down by the Council. Regardless of what the Commission and Council may do or not do, we should not forget about the Court of Justice which is due to give an important ruling about the state of the rule of law in Poland in July or so.

While the Polish government is offering some “concessions” regarding the judicial changes it has made, we have seen Constitutional Tribunal judge Mariusz Muszyński’s calls for the dismissal of the Polish Ombudsman Adam Bodnar. Is Warsaw outsmarting Brussels with this new tactic?

I find it unhealthy not to say shocking to see a sitting judge use a dissenting opinion to launch personal attacks against the office holder of a constitutionally-protected institution. This suggests that Poland’s ruling party will not rest until every single independent institution is captured and one can see the attacks against the Ombudsman as part of the constitutional capture strategy I previously mentioned.

It may also be worth recalling that the European Commission has expressed its most serious concerns regarding the legality of the appointment of the current President of the Polish Constitutional Tribunal. The Commission also found that Mr Mariusz Muszyński was nominated by the Sejm without a valid legal basis.

The situation in Hungary is of great interest to people in Poland and not merely because of Viktor Orbán’s visit to Warsaw on 14 May. Why is the Commission still differentiating between Poland and Hungary, despite the Hungarian government packing the judiciary with loyalists and using openly anti-Semitic and xenophobic rhetoric?

In a nutshell, the Commission is of the view that the situation in Poland is not comparable to the situation in Hungary. To oversimplify, the argument is that the Hungarian government has not openly and repeatedly violated its national constitution unlike what has been happening in Poland. The Commission has also argued that national rule of law safeguards would still work in Hungary. It is worth noting that the European Parliament has repeatedly disagreed with this diagnosis and having grown tired of the Commission’s reluctance to decisively act, it has adopted last May a resolution which may lead to a possible activation of the same Article 7 procedure which was activated against Poland last December.

Have Poland and Hungary established and implemented one common model of “resistance” to the European Union?

To a large extent the “constitutional capture” blueprint being implemented by Poland’s ruling party reflects a blueprint first implemented by Orban and which itself is reminiscent of what has been done or attempted by would-be autocrats in a number of non-EU countries.

The dismantlement of checks and balances has however been done in a more cautious and less obvious manner in Hungary. Hungarian authorities, until last year, were also less openly defiant and antagonistic than Polish authorities have been in 2016 and 2017.

What seems to be happening now is a process of mutual learning between autocrats with Orban apparently planning a total takeover of the Hungarian judiciary which seems to reflect in part the aggressive tactic used by Poland’s ruling party. Looking beyond a number of common traits when it comes to the means and tactics used to systematically undermine the rule of law, Hungary and Poland present some important differences. So it is perhaps more accurate to view them as two types of autocratic regimes driven by different motivations, which is not surprising considering their different histories, cultures, etc.

Does the EU consider the situation in Poland and Hungary as a real threat? 

Two years ago, I wrote that “the consolidation of ‘illiberal’ regimes within the EU itself is however more likely to endanger it than any country withdrawing from it”. I stand by this assessment and it is positive to see a growing realisation that illiberal regimes represent a pressing threat which needs to be tackled. The problem is that the EU has indeed been simultaneously confronted by a frightening number of pressing if not mutually reinforcing crises. This environment makes it difficult for EU actors to focus their attention on the ongoing process of democratic and rule of law backsliding that we are witnessing, as EU unity is required to deal with a number of competing and difficult problems. However, I would argue that from a legal point of view, what is happening in Hungary and Poland fundamentally threatens the EU’s DNA and the very functioning of its interconnected legal system and indirectly the future of the EU’s single market.

Does you see any reason why the EU has been so reluctant to effectively answer threats to democracy within the block?

To its credit, the European Commission presided by Barroso quickly identified the emergence of a new problem and Barroso himself spoke in 2012 of new threats to the legal and democratic fabric in some EU countries. The process whereby would-be autocrats seek to dismantle checks and balances was, however, I think misunderstood. And rather than acting decisively against Orban’s regime, a number of key actors have been living in denial ever since or have sought to justify the limited effectiveness of their answers on the toolbox available to them.

In this respect the EU seems to be persistently engaged in a new-instrument creation cycle. Rather than acting decisively using existing tools in a mutually reinforcing and forceful way, there seems to always be a persistent temptation to blame the instruments available to either justify their non-inactivation, or their timid use. I am not sure for instance that even if the proposed mechanism to suspend EU funding on rule of law grounds were to be adopted that the Commission would end up using it forcefully. As the saying goes, a bad workman always blames his tools, and I am afraid I have seen several examples of this in the past few years.

In addition, effective EU action has been undermined by a number of factors among which I would highlight the feeble support coming from a number of key national governments; the often short attention span of political actors and a tendency to prioritise short term party politics over compliance with democratic and rule of law standards; the loss of institutional memory when the Barroso Commission’s mandate came to end; and more generally speaking, the EU’s default tendency to hope that dialogue, no matter how vacuous, and stalling for time may lead problems to go away.

Do you think that perhaps the EU no longer has the ambition to remain a community of values, and its member states would be perfectly satisfied with an economic and security union? 

It is not an ambition but a legal obligation. The EU and its Member States must comply and promote compliance with the foundational values laid down in the Treaties. This is not simply for Europeans to feel good about themselves. As the Court of Justice has made clear, the EU legal framework, and I quote, ‘is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded’. If you remove this from the EU equation, the very existence of the EU as currently constituted will come under direct threat. In a recent speech, the Dutch Prime minister made this point very compellingly: ‘erode the rule of law and you erode the single market. Erode the single market and you erode the Union.’

The Polish original version of this interview was previously published on OKO Press. Questions by Anna Wójcik.

The highly anticipated hearing in the Celmer case (C-216/18 PPU, Minister for Justice and Equality v LM) took place on 1 June 2018 before the Grand Chamber of the ECJ.

For any readers of this blog that are not familiar with the facts, Celmer concerns the execution of a European Arrest Warrant (EAW) against Mr Artur Celmer (identified as LM in the proceedings), a Pole suspected of drug trafficking. Last March, the Irish High Court refused extradition due to concerns about the rule of law in Poland given the judicial reforms currently being effected. Justice Aileen Donnelly’s reasoning was grounded primarily on the European Commission’s Reasoned Proposal in accordance with Article 7(1) TEU of 20 December 2017.

The Irish High Court asked the ECJ to answer two questions:

1. Whether the Aranyosi and Căldăraru double test for the suspension of EAWs should apply to Celmer. Recall that Aranyosi imposes a double duty on the executing judicial authority, first to assess systematic or generalised deficiencies in the issuing State, and second, to conduct a specific and precise assessment for the person concerned.
2. And, should the double test not apply, to specify if “flagrant denial” of fair trial standards specifically for Mr Celmer, is required, in spite of generalised findings of systemic breach of the rule of law, and what pieces of evidence should be considered adequate for the individual inquiries of the executing judicial authority.

The stakes in Celmer are undoubtedly high. On the one hand, the efficiency of the EAW mechanism, as defined in the Framework Decision on the EAW (“FD”) and in Melloni, is clearly at risk — a risk which could lead to broader consequences for the whole architecture of mutual trust and recognition within the European AFSJ in criminal (see here and here) as well as in civil cooperation. On the other hand, the Celmer dispute goes to the heart of the problems surrounding the current Polish judicial reforms, and to the ensuing concerns about judicial independence.

This is all the more sensitive because the ECJ has recently acknowledged the right to effective and independent judicial protection as a general principle of EU law (see Associação Sindical dos Juízes Portugueses, para 35; for a very thoughtful analysis see here). Taking into account the present negotiations under Article 7 TEU between the Polish government and the Commission, Celmer is unquestionably both political and delicate in the extreme.

Celmer also demonstrates the broader phenomenon of judicialisation of EU politics, which has intensified in recent years (a prominent example being Gauweiler, on EU economic and monetary policy). The EAW, due to its nature, has proven a suitable instrument for national judges to involve the ECJ in pressing EU political questions (next to Celmer see also Case C-191/18 with a request for a preliminary ruling from the Irish Supreme Court on UK extraditions after Brexit).

Against this backdrop, it is not a coincidence that Celmer has been branded by mainstream media as probably the most important CJEU verdict for this year. The case has triggered political controversies, it has given rise to scurrilous attacks against Justice Donnelly (see here and here), and it has gained broad coverage on specialised blogs and social media.

The Hearing

Last Friday, in a long four-hour hearing, the ECJ heard the arguments of the Irish Minister for Justice and Equality and Mr Celmer’s lawyer. Written observations were submitted by Poland and Hungary (Member States presently facing strong criticism for rule of law attacks), Spain (with a special interest due to the Puigdemont EAW), the Netherlands (with pending decisions for the suspensions of EAWs), and by the Commission. The Court participated very actively in the proceedings, with AG Tanchev and the judges posing multiple questions to all participants.

The hearing focused on two main points: A) the conditions for the suspension of Mr Celmer’s EAW in the light of the Aranyosi and Căldăraru double test, and B) the relationship between the Aranyosi test and Article 7 TEU.

The next part summarises the participants' main arguments and draws some conclusions. The diplomatic language of the Commission (and other participants) did not contribute to clarity and sometimes revealed how problematic the case is for Brussels to deal with. What follows is based on the oral debate at the hearing, and should be checked against written observation, when available.

Should the Aranyosi test apply to Celmer?

The first issue discussed was whether the Aranyosi double test applies to Celmer. Ireland, the Commission and the Netherlands agreed on the application of Aranyosi and on the general duty of courts to apply both steps of the test. The first prong of this test requires a systemic deficiency of the justice system in the requesting state. This could be proved by the initiation of Article 7 TEU proceedings by the Commission, an argument that most participants shared. Spain, Poland and Hungary supported the opposite view and rejected the application of Aranyosi, albeit for different reasons. Spain’s argument focused on the absolute character of the right at risk in Aranyosi (Article 4 Charter/3 ECHR; Aranyosi paras 85-87) compared to the derogable nature of Article 47 Charter/6 ECHR. For Spain, the Celmer core question goes to the heart of mutual trust and could lead to incompatibilities with the Melloni doctrine. Additionally, Spain asserts that full application of the Aranyosi test would require an in-depth assessment of a foreign judicial system, a task that is not feasible for judicial authorities. Hungary and Poland also refused the application of Aranyosi based on the character of Article 7 TEU as a prevailing political process. Hungary also pointed out that the existence of monitoring mechanisms (e.g. official statistics on the overcrowding of prisons) facilitated the inquiries of the executing judicial authority in Aranyosi, whereas in Celmer the determination of rule of law breaches requires a more complex assessment that – precisely because of the complexity – is subject to the procedures of Article 7 TEU.

Individual inquiries and “flagrant denial” of justice

The second prong of the Aranyosi test (requiring an individual assessment) featured largely in the hearing – an aspect that might foreshadow the possible outcome of the case. The questions of the judge-rapporteur (Rosario Silva de Lapuerta) and of the AG (Evgeni Tanchev) on the potential or actual risks for a “flagrant denial” of justice, shed light on the participants’ written observations.

Mr Celmer’s lawyer recalled the need not to underestimate generalised negative findings on the independence of Polish judges by various bodies (EC, EU Parliament, Venice Commission, and NGOs), also in the light of Associação Sindical dos Juízes Portugueses. When asked to elaborate further, he indicated that his client’s right to a fair trial in Poland could be jeopardised e.g. by the proposed changes on the disciplinary proceedings concerning judges (the Commission also endorsed the point, but admitted that Mr Celmer was accused of a an ordinary and not a political crime). Nevertheless, he pointed out that the executing judicial authority faced practical obstacles in receiving information from the issuing authority on violations of Article 47 Charter/6 ECHR, and that this made individual inquiries, as imposed by Aranyosi, inexpedient for Mr Celmer.

All other participants agreed that individual inquiries are in any case necessary for the suspension of the EAW. Reference was made to Recital 10 and Articles 1(3), 15(2) FD, as well as to ECJ case law (Aranyosi and Căldăraru, Piotrowski, but also Banger) and the ECtHR (Harkins v United Kingdom, Urban v Poland, Baka v Hungary – concrete “flagrant denial” of justice). According to Ireland, the Commission and the Netherlands, Mr Celmer should bear the burden of proving his concrete risks of an unfair trial in Poland. The Irish High Court could then make use of Article 15(2) FD, request from the issuing authority all the necessary supplementary information, and then it could decide in the extradition, after listening to the Polish arguments.

It should be noted that Spain expressed doubts on the application of Article 15(2) FD, as this possibility exists only as a measure of last resort. In the same line, it seems that the Commission endorsed – to some extent – Mr Celmer lawyer’s argument about the inexpediency of individual inquiries under Article 15(2) FD for this specific case. Furthermore, judges have pointed out the contradiction of having on the one hand cogent evidence of the lack of guarantees for a fair trial but then again requiring from the suspect proof of potential individual violations. In this respect, we believe that the AG Sharpston Opinion in Radu (paras 82-84) could be also of relevance for the Court.

Excursus: Indicators for the Aranyosi test

One of the most controversial issues of the Aranyosi test in practice relates to the indicators to be taken into account for assessing the systematic or generalised deficiencies in the issuing State, in the first place, and to conduct a specific and precise assessment for the person concerned at a second stage. The Celmer case is also relevant here.

On the one hand, the Commission proposed some criteria for the assessment of individual risks, grounded either on objective reasons such as the nature of the crime (e.g. political crimes) or on subjective reasons (e.g. the suspect is an active opponent of the ruling party, or could face discriminatory measures due to ethnic or other characteristics, etc.). However, in our view the ECJ’s criteria seem to be too narrow to encompass the broader spectrum of Article 47 Charter/6 ECHR violations.

On the other hand, and more interestingly, the value of the Reasoned Proposal was also a matter for discussion. Member States in favour of applying the Aranyosi tests – Ireland and the Netherlands – shared the view that the Reasoned Proposal met the requirements of the first prong, and could further function as a starting point for individual inquiries, even if, for the Irish, courts should always follow a case-by-case approach. The Commission aligned itself to the opinion.

Conversely, Hungary and Poland relied on the progressive stages of Article 7 TEU (as described in the first three paragraphs of the provision) not only for questioning the Commission’s competence to identify breaches of Article 2 TEU, but also for undervaluing the relevance of the Reasoned Proposal. In their opinion, documents produced during intermediate stages of Article 7 TEU cannot be used to undermine mutual trust. According to Poland and Hungary, those documents simply highlight the danger of violations in the light of an outdated analysis that could not take into account the amendments already proposed by the Polish government last April and May, not to mention further changes that may still occur out of the continuing negotiations with the Commission. To the contrary, only the Council has the final word on the determination of Article 2 violations. Relying on the Commission’s preliminary assessment would amount – so the argument went – to creating a presumption of rule of law breaches and could constitute a violation of Poland’s right to be heard in the procedures of Article 7 TEU and to contest the Reasoned Proposal.

Relationship between the Aranyosi test and Article 7 TEU

The relationship between Aranyosi and Article 7 cannot be examined without considering the potential impact of the Celmer decision on the notion of mutual trust within the European AFSJ. Almost all participants to the hearing agreed on the importance of mutual trust for the execution of EAWs, as imposed also by Melloni. They endorsed Ireland’s argument that Celmer might lead to chaos for the EAW mechanism, and to impunity for criminals. Nevertheless, as pointed out by many of the participants, mutual trust is not blind, and its limits have been set in the Framework Decision (Recital 10 and Article 1(3)) and in relevant ECJ case law. On the other hand, Mr Celmer’s lawyer rejected the “chaos” argument, claiming that the exceptional character of the case at hand (opening of Article 7 TEU proceedings against Poland) could function as a filter, i.e., a general suspension of EAWs is not at stake.

As for the specific relationship between Aranyosi and Article 7 TUE, the opinions were diverse.

To resolve the conflict of the two principles of judicial independence and mutual trust, Mr Celmer’s lawyer called on the Court to go back to the Treaty. He distinguished between the nature of the EU (i.e. the fundamental values of Article 2), the purposes of the European action (Article 3) and the means to achieve them (Article 4). He argued that the means should not be more important than the nature, and called for a balance between Article 2 TEU, that embodies “the entire inheritance of human civilisation and democracy” and mutual trust, that he analogised to love within a marriage (“the husband cannot rely on the contractual obligation for love”). Furthermore, rule of law scrutiny under the mechanism of Article 7 TEU cannot function as a substitute for human rights protection; though their substance might overlap, the approach of the Council towards Article 7 is completely different.

Poland and Hungary pleaded for a clear distinction between Article 7 TEU and court assessments for extraditions. The application of Aranyosi to Celmer could lead to a circumvention of the Treaty provision. Rule of law assessments should be made only within the political proceedings of Article 7, and they produce legal effects only when breaches are determined at the final stage of Article 7(3). A different approach would leave the execution of EAWs to the full discretion of national courts and could lead to huge discrepancies across jurisdictions. As a consequence of the lack of competence of the Irish Court, Poland also questioned the ECJ power to decide under 269 TEU on Celmer. The ECJ, the argument claimed, had competence only for the action brought by the Commission last March (C-192/18 – infringements proceedings against Poland).

For Ireland, the Aranyosi test obliged courts to examine in concreto the case at hand, but not to substitute the role of the Council within Article 7 TEU. Respect for the rule of law could be used for the examination of the right to a fair trial under Aranyosi, but it was not sufficient alone.

The arguments of the Commission and The Netherlands also addressed this very last issue. Although Article 7 TEU is independent from judicial proceedings, the executing judicial authorities maintain the right to consider such issues in concreto within the duty imposed by the second test of Aranyosi. To fulfil this task – so the argument goes – national courts cannot ignore cogent evidence of threats to judicial independence. When asked to clarify its position between Article 7 TEU and the second step of Aranyosi, the Commission acknowledged the delicate nature of the questions and responded that it was in the nature of Article 7 TEU to have EAWs suspended, but only when all stages of Article 7 TEU were concluded.

Spain’s overall position was close to Hungary and Poland regarding the clear distinction of competences between rule of law breaches under Article 7 TEU and other judicial assessments by national courts. In Spain’s view, a solution permitting national courts to conduct broad examinations of a foreign judicial system is not only unrealistic, but could also infringe Melloni by allowing the application of higher standards outside of the limits set by the Framework Decision (Recital 10 and Article 1(3)).

Epilogue

Much ink will undoubtedly be spilled in the near future over all the legal questions raised in Celmer. Regardless of the answers the ECJ will give, the hearing already provides a valuable lesson on the Commission’s clear positions on the Polish judicial reforms.

Poland’s representative claimed that the arguments brought by Mr Celmer – such as the lack of finality and publication of judicial decisions, or the role of the executive power in disciplinary proceedings against judges – are exaggerated and do not reflect reality. More importantly, he claimed that the undergoing political dialogue narrowed the gap between the ruling party and the Commission and that this has already led to the removal of some controversial measures (such as the different retirement age for female and male judges).

The Commission’s representative rejected all Polish arguments, though. In her opinion, the proposed amendments were by no means sufficient to alleviate the Commission’s concerns that remain on the table. These include crucial issues such as the authoritarian reorganization of the Highest Polish Courts, the forced retirement of a significant number of Supreme Court judges, the non-involvement of judges in the elections of the National Council of Judges, and finally the ability of the executive power to exercise direct or indirect influence over disciplinary proceedings against judges, who can now be held accountable for the content of their decisions – a point that President Lenaerts has particularly stressed in his questions to Poland’s lawyer (for a more information on the controversies of the Polish reforms see the arguments of the Polish judges association “IUSTITIA” here; for a summary of the controversies here). The Commission concluded that all these aspects paint a gloomy picture of the Polish judiciary and that suspicious cases of disciplinary proceedings against judges have been already observed. Ireland and the Netherlands were also on the same wavelength, and they converged on the idea that Celmer should not be instrumentally linked to the state of affairs of the Polish judiciary with a view to endorsing the Polish reforms.

As the hearing has demonstrated, the ECJ could easily follow a narrow (and comfortable) approach by applying to Celmer the stringent test of the in concreto and “flagrant denial” of justice, as imposed by Aranyosi and ECtHR case law (in this respect see also the relevant recent conclusions of AG Bobek in the pending case C-89/17, Banger, paras 78-81). Even in that case, one should not underestimate the value of evidence-based individual inquiries on the state of affairs of the Polish judiciary by national courts, nor the power of deductive logical reasoning.

On the other hand, it remains to be seen if the ECJ is ready to address the phenomenon of rule of law backsliding in the EU and to what extent it is willing to focus its attention on the controversial Polish judicial reforms that undermine the independence of a Member State’s courts. The recent Associação Sindical dos Juízes Portugueses (paras 36-37, 41-44) has demonstrated the importance of the ECJ attitude to act as a quasi-constitutional Court (see also here), ready to protect the very essence of the Union, the fundamental values of Article 2 TEU, and has been seen by some as a signal to Warsaw (see here and here).

Celmer represents a signal opportunity for the ECJ to assist institutional EU actors in facing emerging political dead-ends (we are reminded that Article 7(2) TEU requires unanimity of the Council) and to step into the heart of political problems besetting EU and jeopardising its future.

After all, it will not be the first time (since Gauweiler). Hic Rhodus, hic salta!

Note: The AG opinion will be delivered on 28 June 2018.

European Commission

8 June, 2018

Dear Vice-President Timmermans,

We write as legal and constitutional scholars who are particularly concerned with the European Union, democracy, and the rule of law.   

We believe that the time has come for the EU institutions, and the Commission in particular, to take urgent and decisive steps to respond to recent actions of the Polish government that constitute an assault on the rule of law in that country.  The Law and Justice government has adopted laws relating to the courts, the National Council of the Judiciary and the Supreme Court which, when taken together, substantially undermine judicial independence and subordinate the judiciary to the governing party.

The procedure already initiated under Article 7 TEU has thus far brought about only cosmetic amendments to the laws introduced by the government of Poland.  We believe that the law on the Supreme Court should be made the subject of urgent and immediate infringement proceedings under Article 258 and Article 279 TFEU to highlight the violation of provisions such as Articles 2, 4(3) and 19(1) of the Treaty on European Union that the law on the Supreme Court would bring about. 

If the law on the Supreme Court enters into force in the beginning of July, as is currently planned, a large number of sitting judges of that Court will see their tenure unconstitutionally extinguished. In combination with an increase in the number of seats on the Supreme Court, this means that the newly politicized National Council of the Judiciary, elected by the governing party, will be in a position to appoint a majority of the judges on the Supreme Court. We believe this to be in direct contravention of the rule of law, which is proclaimed as a core value of the EU in Article 2 TEU, and of the fundamental requirement of the independence of the judiciary which is a key component of the rule of law.   

We urge the Commission to take the immediate necessary steps to initiate the infringement procedure, with a view to enabling the Court of Justice, in case these laws are not reversed, to rule on the matter. 

In addition to the threat to the rule of law in Poland, we believe that the credibility of the European Union as a whole, and its commitment to the rule of law, is at stake.

Yours sincerely,

Wojciech Sadurski, University of Sydney, University of Warsaw

Gráinne de Búrca, New York University

Bruce Ackerman, Yale University (for purposes of institutional identification only)

Jan Barcz, Kozminski University, Warsaw

Monica Claes, Maastricht University

Paul Craig, Oxford University

Bruno de Witte, Maastricht University and European University Institute, Florence

Gábor Halmai, European University Institute, Florence

Ronald Janse, Open University, Heerlen, the Netherlands

R. Daniel Kelemen, Rutgers University

Claire Kilpatrick, European University Institute, Florence

Tomasz Tadeusz Koncewicz, University of Gdansk; Program in Law and Public Affairs, Princeton University

Martin Krygier, University of New South Wales, Australia

Mattias Kumm, WZB Berlin and New York University

Marcin Matczak, University of Warsaw

Vlad Perju, Boston College

Laurent Pech, Middlesex University London

Kim Lane Scheppele, Princeton University

Robert Schuetze,  Durham University and College of Europe, Bruges

Joanne Scott, European University Institute, Florence

Maximilian Steinbeis,  Verfassungsblog

Neil Walker, University of Edinburgh

Stephen Weatherill, Oxford University

If you wish to co-sign this letter and show your support, please leave a comment with your name and affiliation. Much appreciated! Verfassungsblog

"History doesn’t repeat itself but it often rhymes."

                                                                      Mark Twain

Here we go again. The reports are resurfacing that the Commission is ready to back away from the Article 7 procedure that was initiated against Poland last December. Rumour has it that such withdrawal is driven by bitter infighting within the Commission („pro-Art. 7 TUE Timmermans v vacillating Juncker”) and fears that Art. 7 TEU could result in a series of potentially divisive votes by EU countries and ultimately fail to force Poland to undo its judicial changes. Further talks with Poland are advocated instead …

Should we be surprised? For anybody who vaguely follows the Commission’s vanishing act, the answer must be a resounding „no”. Instead, the analysis that follows offers a journey back in time and argues that the past teaches us some important lessons and … rhymes.

Zwartveld: Once Upon a Time in the Community Based on the Rule of Law …

Case C – 2/88 IMM, Zwartveld* remains to date one of the most fascinating (and forgotten!) procedural decisions the Court of Justice (the Court) has ever made. At first, the case looks look like a very unlikely candidate for the rule of law building block. Yet, do not let the (rather) peculiar facts fool you. The case was a referral from a Dutch court hearing a criminal case involving financial embezzlements in the common market in fisheries. The national judge wished to inspect documents drawn by officers of the Commission during investigations carried out and then call them as witnesses. His application was refused by the Commission on the grounds that the documents requested concerned aspects of the internal organization of the Commission, and as such could not be sent for inspection by a judge. Having received this decision, the judge sent the case to the Court. The Commission argued that the case was inadmissible since the Treaty regulates exhaustively the jurisdiction of the Court and access to it by national courts. The latter always take the form of Article 267 TFEU referrals for preliminary rulings. The Commission argued that  the request of the national judge was not within the confines article 267 of the TFEU, since it neither concerned the interpretation nor the validity of European Union law, and as such was clearly inadmissible. The Court disagreed.

While it confirmed the lack of a specific head of jurisdiction, it did not see this sole finding as sufficient for the request to be inadmissible. The basis for the Court’s jurisdiction stemmed from the special character of the European Union law. The Court started by referring to two constitutional judgments Costa v Enel (Case 6/64) and Les Verts (294/83) The Treaty created its own legal system that became an integral part of domestic legal systems (Costa), and the Union is based on the rule of law (Les Verts). Rule of law calls for a wide interpretation of art. 4(3) TEU (at the time it was art. 10 Treaty on the European Economic Community) that reads: „Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardize the attainment of the Union’s objectives”. Applying these findings to the case at hand, the Court underscored that when a national court investigates alleged infringements of EU law and requests assistance, the principle of loyal cooperation requires every institution to do its best to assist the national court in its task.

As for the Court’s jurisdiction to entertain the case, the Court singled out Art. 220 of the Treaty on the EEC (today Art. 19 TEU: „The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed”). This provision obliges the Court to make sure that the Commission complies with its duty of loyal cooperation. In Zwartveld, Art. 19 TEU has been linked to Article 4(3) TEU, so that the former would enable judicial control of whether the latter is respected. Having set out the jurisdictional context, we should now move to the procedural aspect of Zwartveld. Ensuring observance of the law as required by Art. 19 TEU means that the Court supervises the respect of Art. 4(3) “by means of a legal procedure appropriate to the objective pursued by the national authority” (fr. “[…] par une voie de droit adaptée à l’objectif que cette autorité poursuit” (emphasis added). The introduction of the term “legal procedure” by the Court is a novelty of Zwartveld. It is the procedure and jurisdiction that enables the Court to make sure that the duty of loyal cooperation incumbent on the institutions is observed.

Fast-forwarding Zwartveld to 2018:  Of Times When the Opportunistic Politics Reign Supreme

Back to 2018. There are important constitutional takeaways from this case. Let me just mention four.

First, unless we want to sit idly, we must accept that times of constitutional debacles call for creative interpretation. The Commission does not function in a legal vacuum. It is bound by the duty of loyal cooperation in the pursuance of the objectives of the Treaties. This duty is justiciable and must be enforced before the Court. When there is duty, there must be legal remedy. Ubi officium, ibi remedium.

Secondly, could the Commission un-trigger Art. 7(1) TEU in the same way that it can withdraw a legislative proposal? It seems that Art. 7(1) TEU cannot be compared to the ordinary legislative procedure, yet the rumours paint a picture of a hesitant and wavering Commission and point toward an interpretation according to which the Commission thinks it has the power to withdraw Art 7(1) TEU as long as the Council has not adopted any formal action. What then? Ubi officium, ibi remedium? Treaty action for failure to act comes to mind almost instantaneously. The argument here would be that that the Commission failed to carry through the Art. 7 TEU procedure that it itself implemented in the first place. If the Commission lays out the case against Poland for Art. 7(1) TEU and then withdraws the proposal in a “compromise” with the Polish government that doesn’t address the serious issues (for example, that a lot of judges were fired), wouldn’t that provide the textbook case of inaction? In the usual case, it’s hard to prove that the Commission should have acted.  But in this case, the Commission clearly felt it should act when it tabled its reasoned opinion.

Thirdly, the question whether the Commission might ultimately fail in its pursuit of Art. 7 TEU procedure and use it as an excuse for withdrawing its reasoned proposal is misplaced and leads the entire rule of law mechanism astray. The Polish government had more than enough time to do something meaningful (restore the independence of the Constitutional Court, unpack the Court, publish its judgments …). Nothing of the sort happened. Quite to the contrary. The Law on the Supreme Court will enter into force in July and the Supreme Court will join the long list of captured institutions. The ball is no longer in the Commission’s court. it has been formally passed to the Council, at least since 21 March 2018. Why then is the Commission still dialoguing with Poland when it has no longer any legal authority to do so? Zwartveld’s recognition of the mutual loyal cooperation teaches us that the Commission is now bound to act positively, rather than look back, not to mention entertaining any thoughts of backtracking on its reasoned proposal to trigger Art. 7 TEU. Should the Commission drop the case against Poland now, even after winning few concessions from this Member State, it would be publicly changing its mind without changing the facts that gave rise to the rule of law concerns.

Fourthly, the rule of law crisis shows that the guardianship of the Treaties is to be earned, not to be presumed. Art. 19 TUE is but an afterthought for the Commission. Two elements portray a disturbing picture of the once powerful Art. 19 now in tatters. Firstly, the Portuguese judges case presented the Commission with a golden opportunity to side with the rule of law and deploy the law argument more forcefully in the anticipation of the Court’s ruling in the pending case of the Polish judges (C – 192/18). Instead the Commission pleaded with the Court (see para 19 of the judgment in C – 64/16) that the case was clearly … inadmissible. Secondly, the collective constitutional abdication by the Commission was on full display in the Białowieża case.

On Jurisprudential Rhyming

Art. 19 TEU clearly mandates the Court to ensure that in the interpretation and application of the Treaty the law is observed. The argument made with Zwartveld in mind is that unfulfilled potential lies in the constructive interpretation of the text in the light of the old constitutional precedents. Zwartveld not only builds on earlier Van Gend – Costa – Les Verts, but first and foremost finds new and reframes old rhymes. What this „jurisprudential building and rhyming” teaches us today is to recognise that in the community of law worthy of the name, the politics should always adapt to the law, not the other way around („Politia legibus, non leges politiae adaptandae”).

Opportunistic politics reigns supreme these days in Brussels, with the rule of law being thrown out Mr Juncker’s window. As of today, the Art. 7 TEU time line and road map for actions drawn by K. L. Scheppele, D. Kochenov and L. Pech back in December 2017 are clearly not adhered to by the institutions. I realise all too well that this Commission will shrug its collective arms and ask „Zwartveld? Les Verts? What Zwartveld? What Les Verts?” and look the other „pragmatic way”. However, lawyers and media should not let the Commission off the hook this time. Taking Art. 7 TEU off the table and cutting a deal with the right wing government in Poland would strike a final deadly blow to the EU rule of law. Exposing the Commission’s constitutional procrastinations by writing, calling a spade a spade, honouring the precedents, and yes, last but not least, by connecting the elusive jurisprudential rhymes, are the least we can do right now. We must not let „Zwartveld/ Les Verts talk” be marginalised and looked at as a legal oddity from another era. Rather, these must continue to serve as the foundational blocks of the EU legal order, blocks that need to be brought back into our today’s discourse on the rule of law.

This Commission might, and will be gone, soon, but the long-term consequences of its failed policies will stay with us much longer. An uneasy question thus looms large. Will the honoured legal rhymes prevail over time? As of writing, I am concerned that they indeed might not. Just like myths need able story-tellers, rhymes always live through, and thanks to, the resolve of their judicial and political guardians …

*The analysis of Zwartveld comes from my forthcoming book, Procedural mind in the EU Law. An Essay in Procedural Thinking

On 28 June 2018, Advocate General Evgeni Tanchev delivered his Opinion in the Case C‑216/18 PPU Minister for Justice and Equality v LM on the surrender of a crime suspect to Poland.

The issue is whether Mr. Artur Celmer, referred to by the Opinion as LM, should be surrendered from Ireland to Poland when there are serious doubts as to whether he would receive a fair trial, due to the alleged lack of independence of the judiciary resulting from recent changes to the Polish judicial system.

More specifically, does the executing judicial authority have to follow earlier jurisprudence of the CJEU developed in Aranyosi and Căldăraru when deciding on whether or not to postpone the execution of a European Arrest Warrant (EAW)? If yes, a further issue is whether the executing judiciary has to engage in a two-stage examination, as suggested in Aranyosi, or whether the LM case should be distinguished and thus the applicable judicial test accordingly modified.

We have previously argued on this blog in favour of framing the case primarily as a rule of law problem. Judicial authorities have an independent responsibility to put a halt to surrenders, in case the wanted person’s fair trial rights are put in peril. But the court of the executing state should not only halt or suspend judicial cooperation in case doubts arise as to respect for the rule of law in the issuing state, but it should also freeze the case awaiting a resolution of the matter from actors bearing political responsibility. This could take place in accordance with the procedure provided for in Article 7 TEU or the so-called DRF Pact called for by the European Parliament, designed to monitor and enforce democracy, the rule of law and fundamental rights in the Member States.

AG Tanchev, however, constructs the case as a possible violation of the right to a fair trial. Neither is this the best way to uphold the rule of , nor to preserve mutual trust, due to the lack of clarity, consistency, and workability of the solution proposed.

1.     Upholding the rule of law; under Article 7 TEU and within the context of surrender procedures

AG Tanchev’s Opinion correctly distinguishes the present case from the procedure conducted according to Article 7 TEU, like the one triggered against Poland on 20 December 2017. The High Court of Ireland already emphasized the political nature of the latter proceeding, and it came to the conclusion that the outcome of an Article 7 procedure is less relevant for a national court deciding on surrender. Instead, documents produced during the process may serve as persuasive evidence.

The AG, however, identified other differences, from which two will be singled out here. First, he argued that the two procedures do not have the same objectives. Under Article 7(1) TEU, the Council assesses whether there is a clear risk of a serious breach of the values referred to in Article 2 TEU, whereas a decision on surrender, concerned “the examination by the executing judicial authority [of] the existence of a real risk of breach not of a value common to the Member States but of a fundamental right”. (paragraph 38) This statement gives the false semblance that fundamental rights are somehow not common values. The contrary is true: the EU is founded on a fundamental rights culture, as underlined by Article 2 TEU.

Second, the Opinion contends that the application of the Framework Decision on the EAW may only be suspended in line with Recital (10), if the sanctioning prong of Article 7 TEU is made use of and the Council determines a breach, and not just a mere risk of a breach of values listed in Article 2 TEU. In contrast, he recalls the Aranyosi doctrine, where a real risk of a breach of a fundamental right was permitted to potentially lead to the suspension of actual surrender cases (paragraphs 41-44). One could, however, argue that the drafters of the Framework Decision on the EAW meant to refer to Article 7 as such, which had only two paragraphs when the Framework Decision was drafted. In the meantime, a third, preventive arm has been added, which should now be read into Recital (10).

2.     LM turned into Aranyosi 2.0

Differentiating between the two procedures leads the AG to conclude that the national court has to decide whether or not to execute a European Arrest Warrant even if an Article 7 procedure is pending. Albeit on different grounds – and here we tend to agree with the High Court of Ireland, emphasising the political nature of Article 7 – this conclusion is correct.

However, we disagree with the AG’s argument that the only alternative to an Article 7 TEU procedure resulting in the suspension of instruments based on mutual trust is the executing national authority following the Aranyosi doctrine. Instead, the AG’s Opinion could have followed the CJEU’s case law in Associação Sindical dos Juízes Portugueses, where the CJEU emphasised the importance of the national judiciary for the enforcement of EU law, and entrusted itself to assess the judicial independence of those national courts which apply and interpret EU law.

The AG’s Opinion should have acknowledged that a lack of judicial independence jeopardizes all fundamental rights, not just the right to a fair trial singled out here. Once the case was approached from a rule of law perspective, the Opinion could have proposed a freezing mechanism that we suggested in our previous blog entry and that is also advocated by Professors Carrera and Mitsilegas. As further discussed below, all further weaknesses of the Opinion flow from this fundamental misconstruction of the issue as a human rights problem instead of a rule of law matter.

2.1 First prong of Aranyosi and a “flagrant denial of justice” test

In Aranyosi, the CJEU established a two-prong-test for checking the general fundamental rights situation in a country and the potential risks of human rights violations in the individual case. Once the obligation for the executing judicial authority to employ the Aranyosi test was established, the question arose to what extent this jurisprudence was applicable, when a derogable right was at stake, such as the right to a fair trial, and not an absolute one, like the prohibition of inhuman or degrading treatment.

In the AG’s view, a derogable right may still be capable of giving rise to an obligation to postpone the execution of EAWs, if certain conditions are met (paragraphs 57-58). The Opinion stressed that the right to a fair trial may be subject to limitations, unless these limitations are so severe that the essence of that right is violated. Therefore, in the AG’s view in order for the executing authority to postpone surrender, there must be a real risk not of a breach of the right to a fair trial, but of a “flagrant denial of justice” (paragraphs 72-77).

However, the AG does not cite the warning of AG Sharpston in Radu: “such a test […] seems to me unduly stringent. […] a trial that is only partly fair cannot be guaranteed to ensure that justice is done.” Additionally, recent CJEU case-law suggests that the standard of proof shall be lower than a real risk of a flagrant denial of justice.

AG Tranchev, however, looks at a different jurisdiction and underpins his position by the case-law of the European Court of Human Rights (ECtHR). For an example for a successful determination of a flagrant denial of justice, the AG recalls rather extreme cases involving complicity with torture (paragraph 92). The AG admits that these judgments are, to date, the only ones where the ECtHR has found a breach of the Convention on account of the lack of independence and impartiality of the courts (paragraph 94). In other words, if the AG’s Opinion was to be followed, there would be virtually no situations where a flagrant breach could be determined.

Such a reading leads to the rather absurd conclusion that if there is a risk of a human rights violation due to inhumane prison conditions (like in Aranyosi), surrender may be postponed. On the other hand, the bar for establishing a violation of fair trial rights due to systemic rule of law problems is put so high that there is virtually no way for it to be met except in situations in which Member States are complicit in the torture of individuals.

2.2 Second prong of Aranyosi

As to the second prong of the test, several legal issues arose. One of the most fundamental ones was whether this part of the test is even applicable. The Irish High Court’s suggestion was that it would be unrealistic to require a suspect to establish that deficiencies of a legal system have an effect on the proceedings to which he is subject. In contrast, the AG Opinion required to be proven that the individual concerned is exposed to a risk of flagrant denial of justice.

In the AG’s view, an Article 7(1) TEU procedure alone does not prove that suspects automatically have a real risk of breach of their right to a fair trial. In his opinion, “it cannot be ruled out that, in certain situations, the courts of that Member State are capable of hearing a case with the independence required by the […] Charter” (paragraph 103). Inspired by the Commission’s arguments, the Opinion concludes that even if the first prong of the Aranyosi test is satisfied, “this cannot be taken to mean that no Polish court is capable of hearing any case whatever in compliance with the second paragraph of Article 47 of the Charter” (paragraph 108, emphasis in original). Again, the Opinion invokes extremely severe human rights violations that are unthinkable in intra-Community cases. It references Mo.M. v. France, where the examination of the Applicant’s personal situation has shown that his sending back to Chad, which he had fled after being arrested and tortured by the Chadian authorities, would have breached the ECHR (paragraph 110).

When determining this second issue, the Opinion gives some guidance. The executing judicial authority has to take account of the particular circumstances of the case, relating both to the individual concerned (e.g. whether he or she “is a political opponent or belongs to a social or ethnic minority that is discriminated against”) and to the crime in question (e.g. whether the offence is political in nature, has been committed in exercise of free speech, or has been the subject of public declarations by representatives of those in power) (paragraphs 103, 113, 114).

Criticism may be formulated with regard to the above requirements.

First, if one of the above issues can be proven, it is probably not the Aranyosi test that would be applicable. Recital (12) of the Framework Decision states that “nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person […] when there are reasons to believe [that the] arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.” This recital could be used to interpret Article 1(3) of the Framework Decision on the EAW, and thereby the surrender procedure could be halted on the basis of that provision alone without making use of the Aranyosi test.

Second, the term “political opponent” is rather vague and might be difficult to prove. One shall be reminded that illiberal regimes go after anyone who formulates government criticism including journalists fighting fake news, members of the academia proving scientific facts and NGO representatives advocating human rights, irrespectively of whether they are politically active or not. Third, institutional discrimination is very difficult to prove. Fourth, the above test does not fully grasp the nature of constitutional capture. Indeed, political opponents may be silenced, and disadvantaged groups, such as the Roma or asylum seekers may be further discriminated. But it cannot be concluded that apart from these groups, most suspects may get a fair trial. Capture of the judiciary involves in-built corruption. It also gives a free hand to organised crime, perhaps even leading to the situation that one would rather not want to surrender an individual to a certain Member State because it might lead to impunity.

2.3 Burden of proof, acquisition of evidence

According to the AG’s Opinion, the burden of proof is on the individual concerned to establish that there are substantial grounds to believe that there is a real risk of a flagrant denial of justice in the issuing state in his or her case. When deciding on this issue, the executing authority has to consider objective, reliable, specific and properly updated information. The Commission’s reasoned proposal to have Article 7 TEU triggered can be taken into account, if that document is read in conjunction with any legislative changes passed after the reasoned proposal had been adopted. These requirements mix up the responsibilities of the Commission as guardian of the rule of law and individuals who do not possess an apparatus demonstrating risks to their fundamental rights. At a certain point the onus should shift to the state accused of rule of law violations.

Finally, the AG Opinion’s requirement that the executing authority shall acquire from the issuing judicial authority all the necessary supplementary information (paragraphs 122-128), presupposes that a captured court would be capable of engaging in a judicial dialogue about its own and its peers’ independence.

3.     Conclusion

The legal construction of a problem determines the solution found. The above assessment of AG Tanchev’s Opinion is a demonstration of why a lack of judicial independence should be framed as a rule of law issue. The AG Opinion’s construction of the case as a potential human rights deficiency renders challenges to rule of law violations hypothetical. Against the backdrop of the current limitations, the suggestion to address rule of law problems in fully-fledged Article 7 (2)-(3) procedures is not feasible; whereas the alternative path, the modified two prong Aranyosi test, is incoherent and not workable in practice. Shall the AG Opinion’s line of argumentation be adopted by the CJEU, its guidance for national courts is likely to result in impunity for Member States violating the rule of law, as well as individual exposure to fundamental rights infringements. This again might lead certain national executing judicial authorities to develop their own tests, trumping or endangering the primacy and effectiveness of EU law.

The above controversy serves as a reminder that “mutual trust cannot survive when one national system ceases to be governed by the rule of law” (see the blog post by Professors Scheppele and Pech). Should the EU shy away from creating a working monitoring and supervisory mechanism for Article 2 TEU values – which national courts could take into account when assessing whether mutual trust is still deserved – it will neither uphold EU law’s autonomy, nor the values behind EU integration. And vice versa: reinforcing the EU’s distinct constitutional features via a strong rule of law supervision would reinforce mutual trust.

The views expressed in this contribution are solely those of the authors.