28 September 2020

Before It’s Too Late

Open Letter to the President of the European Commission regarding the Rule of Law Breakdown in Poland

Dear President von der Leyen,

In your recent State of the Union address, you rightly emphasized that “breaches of the rule of law cannot be tolerated.”

We are sorry to say we are seeing ample evidence to the contrary (see our previous open letters here and here).

The current Commission is failing to project any sense of urgency (at least, in public view) around this issue, while Polish authorities continue to openly abuse, harass and intimidate judges and prosecutors who are seeking to defend the rule of law. In addition, Polish authorities continue to openly defy the authority of the Court of Justice by refusing to follow its judgments, most recently its order regarding the so-called Disciplinary Chamber.

Persecution of independent judges and prosecutors

With respect to judges and prosecutors, it is difficult to know where to begin considering the large number of judges and prosecutors being persecuted by Poland’s current authorities. We are disappointed to see that even the most alarming examples have yet to generate any public reaction from the Commission. Let us for instance draw your attention to the situation of Judge Igor Tuleya who has been called to attend yet another hearing before this “Disciplinary Chamber” on October 5th in violation of the Court of Justice’s order suspending the application of the legal provisions that allow this body to handle disciplinary cases concerning judges.

As your Commission is already well aware, this “Disciplinary Chamber” was set up in flagrant violation of Poland’s own Constitution and after last November’s ECJ judgment it also violates EU law requirements relating to judicial independence and impartiality. The “Disciplinary Chamber” has already shown its eagerness to help the government harass and persecute judges who are independently fulfilling their duties, of whom Judge Tuleya is a leading example. Obviously, Poland will not stop harassing independent judges until the Commission lets Polish authorities know in no uncertain terms that violation of an ECJ order will not be tolerated.

This is far from the only case in which the “Disciplinary Chamber” is being used to intimidate independent judges. Judge Beata Morawiec who is the president of Themis (the second largest association of judges in Poland), was recently threatened with a home search following a decision issued by the internal affairs department of the National Public Prosecutor’s Office. This office, established to investigate judges and prosecutors in order to refer them to the “Disciplinary Chamber,” lacks any degree of operational and investigative independence in breach of EU law. It operates instead hand in glove with Polish authorities as does the “Disciplinary Chamber” which is due to consider the removal of Judge Morawiec’s judicial immunity on October 12th. One should note, in passing, that the judge-rapporteur in this case is the very person who violated EU law when he supported the suspension of Judge Paweł Juszczyszyn for the “crime” of applying the AK judgment of the Court of Justice.

What these examples reveal is that judges who are attempting to apply EU law are being threatened and punished while those who flaunt violations of EU law are being rewarded. This is a situation that cannot stand in a Union supposedly based on the rule of law.

These cases would be bad enough on their own, but they are made worse by the fact they are not unique to judges, as prosecutors have been subject to similar harassment. There are multiple, patently arbitrary disciplinary proceedings that have been recently initiated against prosecutors who are not toeing the party line, with many having already been ousted or demoted. Most recently, Prosecutor Krzysztof Parchimowicz has been the subject of another politically motivated disciplinary action. His “crime” was attending the disciplinary hearings organised for another prosecutor who had fallen out of favour because she dared to criticise the Polish government’s so-called “reforms”. The Court of Justice has already established that these “reforms” are in fact deliberate attacks on judicial independence. Now not only those who criticise the reforms, but also those who stand up for the critics are being punished in this process that the Court of Justice has already declared – and will continue to declare – to be contrary to EU Law. Or, at least the Court of Justice can be expected to declare this, provided that infringement actions are lodged with it by your Commission to provide an opportunity for the Court to say so.

In yet another example of arbitrary disciplinary proceedings, Prosecutor Ewa Wrzosek is being harassed for launching an investigation into the presidential elections the government sought to organise in blatant breach of Poland’s Constitution and regardless of the impact it may have on the life and health of Polish citizens. Originally scheduled for 10 May 2020, these elections were postponed four days before the scheduled date. As you will recall, these are elections whose legality and constitutionality were rightly questioned by Commissioner Jourová. Prosecutor Wrzosek only became aware of the disciplinary investigation initiated against her when it was revealed in the media, following a leak originating from services controlled by the Minister of Justice. This is not the first time this happened as indeed, the same trick was used in respect of Judge Morawiec. The Ministry of Justice, whose interference in appointment of judges to the “Disciplinary Chamber” has already been found contrary to EU law, has been the source of leaks that are designed to unsettle and threaten judges and prosecutors who attempt to enforce EU law.   

The disciplining of judges and prosecutors for attempting to uphold the rule of law is happening while Polish authorities have done nothing whatsoever following the revelation of the existence of a secret “troll farm” hosted within the Ministry of Justice which was used to smear members of the judiciary via inter alia the (criminal) leaking of confidential information. The persons responsible for this (criminal) entity are now merely investigating themselves in violation of PACE’s call for Polish authorities to establish no later than 31 March 2020 an independent public commission to conduct an independent investigation in the matter. The real rule of law violators are therefore escaping any sanction while those who defend the rule of law are being punished. 

Systemic violation of the Court of Justice’s rulings

As regards the systemic violation of the Court of Justice’s rulings, without being exhaustive, we must draw your attention to the fact that Polish authorities, primarily via the bodies they have unlawfully captured, are not only continuing to violate the Court of Justice’s order of 8 April 2020 by allowing the theoretically suspended “Disciplinary Chamber” to continue to schedule hearings as noted above. They have also acted to prevent compliance with the AK judgment as well as the Simpson judgment of the Court of Justice so as to continue with their unlawful appointments of politically dependent individuals to senior judicial positions. 

In addition, the muzzle law of 20 December 2019 has legalised the structural violation of most fundamental principles underlying the whole EU legal order. The Commission itself has recognised the gravity of the situation when it (belatedly) launched an infringement action on 29 April 2020 by highlighting the fact that the new muzzle law inter alia prevents Polish courts from fulfilling their obligation to apply EU law; and from fulfilling their obligation to request preliminary rulings from the EU Court of Justice and from assessing, in the context of cases pending before them, the power to adjudicate cases by other judges. Under the muzzle law, any Polish judge who would seek to remedy the situation could then be sanctioned and ultimately dismissed. Here again, it is the judges who attempt to enforce EU law who are being punished while those who undermine EU law are not being restrained by Commission enforcement of EU law. 

Cumulatively, it is difficult to think in the whole history of the EU of a more blatant, deliberate and systemic violation of the principle of primacy of EU law, the functioning of the preliminary ruling mechanism as well as the requirements of judicial independence. In essence, Poland has already exited the EU’s legal order and yet your Commission is seemingly focusing its energy and limited resources on the production of yet more reports which will not change the situation on the ground by one iota unless you begin actually enforcing EU law rather than simply pointing without effect or real urgency to the sorry state of affairs.

La coupe est pleine and we urge you once more to promptly and meaningfully act before the point of no return is reached.

Indeed, as Věra Jourová and Didier Reynders have both correctly pointed out, we are not dealing with “judicial reforms” but are facing “a case of carpet bombing” which aims to annihilate judicial independence and scares all judges into submission.

What would the point of no return look like?

Other Member States’ courts have, appropriately, already begun to doubt whether they can trust the operation of the Polish courts. So far this has been limited to refusals to comply with European Arrest Warrants originating from Poland, but will soon spread to the refusal of other Member States’ courts to enforce Polish judgments across the board and may lead to more non-EU countries to end their cooperation in the justice sector with Poland.

The primary principle of the EU legal order – that EU law can reliably be enforced anywhere in the Union – will have become irreparably damaged.  Self-help – blocked by the Treaties – will suddenly become the only way that Member States can defend themselves from a rogue state in their midst. The Commission has been given the necessary enforcement powers under the Treaties precisely because it is supposed to act to prevent the need for self-help on the part of Member States. But if the Commission doesn’t do its job, the Member States, and in particular their courts, will – and that will signal the end of mutual trust. It may well signal the end of the European project. 

As stressed by the European Parliament in a resolution adopted on 17 September 2020, wasting time with more one-sided dialogue makes no sense when the actors in question have an established track record of deliberately acting in breach of the principle of loyal cooperation. This is instead a time for the Commission to aggressively wield its power to bring infringement actions – and with those, to ask for interim measures to prevent the situation from getting worse while the legal issues are resolved.  This is necessary to prevent the situation not just from going bad to worse but to prevent the situation from going bad to beyond control. It is only a matter of time before all national courts in other EU Member States reach the same conclusion as the Amsterdam District Court did this summer by refusing to honour any European Arrest Warrant request from any Polish court. In other words, we have now a black hole in the EU legal order following the structural dismantling of the independence of all Polish courts.

The only way to contain the increasing lawlessness that we are witnessing in Poland is for your Commission to step up to the task it is given under the Treaties to enforce EU law. Do not further delay action in the name of dialogue. One simply cannot engage in dialogue with a pyromaniac who is actively adding fuel to a blaze.

First, we urge you to return to the Court of Justice to apply for a penalty payment regarding the continuing violation of its order of 8 April 2020.

Second, the Commission must urgently issue its reasoned opinion in relation to the muzzle law and give the Polish government the minimum possible time to reply. It must then seek to lodge its infringement action with the Court of Justice without delay and apply simultaneously for interim measures to neutralise the effects of the muzzle law.

Third, as recommended by the European Parliament, the Commission should launch an infringement procedure in relation to the unlawfully composed Constitutional Tribunal; the unconstitutionally established and unlawfully composed “Chamber of Extraordinary Review” of the Supreme Court which suffers from the same lack of judicial independence as the “Disciplinary Chamber”; and act also against the similarly unconstitutionally established and unlawfully composed National Council of the Judiciary. By packaging these complaints together in a single infringement action, the comprehensive and deliberate nature of the Polish government’s attacks on the judiciary can be exposed before the European Court of Justice, which should expand its jurisprudence on judicial independence to allow a more structural remedy for this problem.    

Fourth, we urge you to publicly denounce and act against the team put in place by Poland’s ruling coalition that has been harassing judges and prosecutors. As Advocate General Bobek last week argued in the case of Asociaţia Forumul Judecătorilor Din România, a body in charge of initiating disciplinary procedures against members of the judiciary should at the very least demonstrate some degree of operational and investigative independence, which is patently not the case in Poland. Without criticism from the Commission, this body will appear to be what it is not:  an independent institution enforcing the law. Instead, you need to say that this body is undermining EU law by initiating disciplinary procedures that the Court of Justice has ruled are political rather than legal.   

You promised before being elected that there will “be no compromise when it comes to respecting the Rule of Law … The Commission will always be an independent guardian of the Treaties. Lady Justice is blind – she will defend the Rule of Law wherever it is attacked.”

The rule of law in Poland is not merely being attacked. It is being destroyed in plain sight.   

We are concerned that the Commission is blind to violations of European law, when it is entrusted in the Treaties to act as the guardian of EU law. 

This is the time to show you meant what you said before the reputation of your Commission is enduringly tainted by being the Commission on whose watch mutual trust was destroyed, because it failed proactively and meaningfully to defend the rule of law.

If the Commission does not fulfil its assigned role as Guardian of the Treaties, ensuring that the application of EU law is guaranteed throughout the Union, Member States will have every reason to resort to self-help to protect themselves from a politically compromised judiciary in a Member State where national judges are forbidden from enforcing EU rule of law standards.

Yours faithfully,

Professor Laurent Pech, Middlesex University London 

Professor Kim Lane Scheppele, Princeton University

Professor Wojciech Sadurski, University of Sydney, University of Warsaw

Professor Alberto Alemanno, HEC Paris

Professor Leszek Balcerowicz, Warsaw School of Economics

Professor Petra Bárd, Central European University

Professor Gráinne de Búrca, New York University

Professor Paul Craig, University of Oxford

Dr Tom Gerald Daly, Melbourne School of Government

Dr Andrew Drzemczewski, Middlesex University London

Professor Federico Fabbrini, Dublin City University

Dr Barbara Grabowska-Moroz, Groningen University

Professor emeritus Kees Groenendijk, Radboud University

Dr Joelle Grogan, Middlesex University London 

Professor Xavier Groussot, Lund University

Professor Gábor Halmai, European University Institute

Dr Maarten Hillebrandt, University of Helsinki

Professor Christophe Hillion, Oslo University

Professor R. Daniel Kelemen, Rutgers University

Professor Dimitry Kochenov, Groningen University

Professor Tomasz Tadeusz Koncewicz, University of Gdańsk

Dr. Kriszta Kovács, WZB Berlin Social Science Center

Professor Miguel Maduro, European University Institute

Professor Franz Mayer, Bielefeld University

Professor Marcin Matczak, University of Warsaw

Professor Rostane Mehdi, University of Aix-Marseille

Professor John Morijn, Groningen University

Professor Jan-Werner Müller, Princeton University 

Professor Jannemieke Ouwerkerk, Leiden University

Professor Steve Peers, University of Essex

Professor Vlad Perju, Boston College 

Professor Sébastien Platon, Bordeaux University

Professor Marie-Claire Ponthoreau, Bordeaux University

Professor Jorrit Rijpma, Leiden University

Professor Kees Sterk, Maastricht University

Professor Ashley Terlouw, Radboud University

Professor Marlene Wind, University of Copenhagen

Professor Fryderyk Zoll, Jagiellonian University


SUGGESTED CITATION  Pech, Laurent, Scheppele, Kim Lane; Sadurski, Wojciech: Before It’s Too Late: Open Letter to the President of the European Commission regarding the Rule of Law Breakdown in Poland, VerfBlog, 2020/9/28, https://verfassungsblog.de/before-its-too-late/, DOI: 10.17176/20200928-220833-0.

26 Comments

  1. Theo de Roos Mo 28 Sep 2020 at 17:03 - Reply

    I could not agree more.

    Em. Prof. Criminal Law Tilburg University

  2. Michał Przybylski Mo 28 Sep 2020 at 17:14 - Reply

    I fully support this letter. This is the place, this is the time. Last time, before we lose our Union.

  3. Christoph Möllers Mo 28 Sep 2020 at 17:50 - Reply

    I support this letter.
    Christoph Möllers

  4. Nico Tuijn Mo 28 Sep 2020 at 21:40 - Reply

    I fully understand the public support of the open letter from the Board of the European Association of Judges. It’s a worrying signal that this seems to be necessary.

  5. Prof. Michel Vols Mo 28 Sep 2020 at 22:44 - Reply

    I support this letter.

    Prof. Michel Vols, University of Groningen

  6. Brian Leiter Di 29 Sep 2020 at 00:44 - Reply

    I support this letter

    Karl N. Llewellyn Professor of Jurisprudence
    University of Chicago Law School

  7. Krystyna Węgłowska Di 29 Sep 2020 at 07:58 - Reply

    Before It’s Too Late !

  8. Jacob Öberg, Associate Professor in Law, Lund University Di 29 Sep 2020 at 10:02 - Reply

    I also fully support this letter!

  9. […] Before It’s Too Late Udostępnij […]

  10. Antoine Buyse, Professor of Human Rights, Utrecht University Di 29 Sep 2020 at 13:12 - Reply

    I fully support this letter.

  11. Michaela Hailbronner Di 29 Sep 2020 at 14:38 - Reply

    I support this letter.

  12. Eugeniusz Smolar Di 29 Sep 2020 at 15:41 - Reply

    I fully support this letter.

  13. Jeffrey Dunoff, Carnell Professor of Law, Temple University Di 29 Sep 2020 at 16:41 - Reply

    I fully support this letter.

  14. Adriano Martufi Di 29 Sep 2020 at 22:49 - Reply

    Full support to the initiative. Prima che sia troppo tardi / voordat het te laat is / before it’s too late.

  15. Bill Bowring Do 1 Okt 2020 at 21:29 - Reply

    I fully support this letter!

  16. Willem Maas Fr 2 Okt 2020 at 00:54 - Reply

    I support this letter. Professor and Jean Monnet Chair, York University

  17. […] appears to be pressuring judges, including those upholding EU law. As a group of legal scholars point out, Warsaw is at the point of no return and should be fined by the court for its […]

  18. […] Prof. Laurent Pech, Professor of European Law, Middlesex University. Jean Monnet Chair of European Public Law (2014-17) and Head of the Law and Politics Department at Middlesex University London. Leading expert on the rule of law breakdown in Poland. Co-author of several appeals to the European Commission in support of the independent judiciary, co-signed by dozens of the world’s leading legal scholars, most recent one published on Sept. 28th. […]

  19. Stephen Terrett Do 15 Okt 2020 at 12:25 - Reply

    I support this letter

  20. […] беше озаглавено „Преди да е станало твърде късно”.2 В писмото основно е обърнато внимание на създадената […]

  21. […] of Justice, over eleven months after the muzzle law was adopted, while the Commission has also failed to promptly react to the open violation of the Court of Justice’s order of 8 April 2020 regarding Poland’s […]

  22. […] of Justice, over eleven months after the muzzle law was adopted, while the Commission has also failed to promptly react to the open violation of the Court of Justice’s order of 8 April 2020 regarding Poland’s […]

  23. […] Prof. Laurent Pech, profesor prawa europejskiego, Uniwersytet Middlesex. Kierownik Katedry Europejskiego Prawa Publicznego im. Jeana Monneta (2014–2017) i kierownik Wydziału Prawa i Polityki na Middlesex University London. Czołowy europejski ekspert ds. praworządności w Polsce. Współautor licznych apeli do Komisji Europejskiej wspierających niezależne sądownictwo, podpisanych przez kilkudziesięciu czołowych światowych prawników; ostatnio taki apel został opublikowany 28 września. […]

  24. […] Професор Лоран Пех, професор європейського права, Мідсекскій університет. Голова кафедри європейського публічного права Жана Монне (2014-17) і завідувач кафедрою права і політики Мідлсекського університету в Лондоні. Провідний експерт з питань верховенства права в Польщі. Співавтор кількох звернень до Європейської комісії на підтримку незалежної судової системи, підписаних десятками провідних світових вчених-юристів, останнє з яких опубліковано 28 вересня. […]

  25. […] 2020, il presidente della Commissione Europea, Ursula Von Der Leyen, è stata destinataria di una lettera aperta che sottolinea la grave situazione della magistratura in Polonia e richiede un’intervento, […]

Leave A Comment

WRITE A COMMENT

1. We welcome your comments but you do so as our guest. Please note that we will exercise our property rights to make sure that Verfassungsblog remains a safe and attractive place for everyone.

2. We expect comments to be matter-of-fact, on-topic and free of sarcasm, innuendo and ad personam arguments.

3. Racist, sexist and otherwise discriminatory comments will be deleted.

4. Comments under pseudonym are allowed but a valid email address is obligatory. In case of doubt comments will be published after an email to the stated address has been answered. The use of more than one pseudonym is not allowed.




Explore posts related to this:
Rule of Law, Ursula von der Leyen, judicial independence


Other posts about this region:
Europa, Polen

Explore posts related to this:
Rule of Law, Ursula von der Leyen, judicial independence


Other posts about this region:
Europa, Polen
26 comments Join the discussion