21 June 2022

Covering Up and Rewarding the Destruction of the Rule of Law One Milestone at a Time

Once upon a time, when still a candidate for President of the European Commission, Ursula von der Leyen solemnly declared: “there can be no compromise when it comes to respecting the Rule of Law. There never will be.”

As it is now clear, this was just Orwellian doublespeak.

In endorsing at the worst possible time Poland’s €35.4bn recovery plan – notwithstanding the continuing industrial-scale violation of the Court of Justice’s rulings relating to effective judicial protection – von der Leyen and her cabinet have transformed the Guardian of the Treaties into an enabler of those violating the Treaties and, as far as unlawfully suspended judges are concerned, into a co-conspirator.

To hide this Kapitulation, President von der Leyen has stressed that “Poland’s plan includes milestones related to important aspects of the independence of the judiciary”. These “milestones”, however, are not worth the paper they are written on.

Reality-disconnected Assessment 

According to the Commission, the arrangements proposed in Poland’s recovery and resilience plan (RRP) are adequate “to prevent, detect and correct corruption, fraud and conflicts of interests when using the funds provided under” the Recovery and Resilience Facility Regulation.

Meanwhile, in the real world, the EU’s top prosecutor has warned that Polish authorities’ refusal to cooperate with the EPPO risked making abuses of EU funds easier, with the head of the EPPO again denouncing Poland’s systematic refusal to cooperate shortly before Ursula von der Leyen decided to look the other way.

President von der Leyen decided to be similarly oblivious to the structural defect – unacceptable in a state governed by the rule of law – created by the merger of the position of Prosecutor General with that of the Minister of Justice. This merger has naturally resulted in shielding any potential misuse of EU funding committed by the PG/MoJ or the members and associates of Poland’s ruling coalition. State-sponsored attacks on the national audit body have been similarly ignored in a context where this body has established that the Ministry of Justice is running a “corruption-generating mechanism”.

A similar “hear no evil, see no evil, speak no evil” approach was adopted in relation to Poland’s rule of law breakdown. Indeed, having first correctly outlined that “effective judicial protection is a prerequisite for the functioning of an internal control system”, the Commission then completely ignores the systemic violation of this legal principle which culminated in the entirety of the ECJ case law based on Article 19(1) TEU being held “unconstitutional” last year. This is all the more peculiar considering that President von der Leyen herself had previously presented this as an unprecedented development amounting to a “direct challenge to the unity of the European legal order” with the Commission subsequently launching an infringement action last December on account of Poland’s kangaroo constitutional tribunal’s violation of the binding effect of ECJ rulings.

Von der Leyen’s RRP “compromise” similarly blissfully ignores the “unconstitutionalisation” of Article 6(1) ECHR and connected case law of the European Court of Human Rights (ECtHR) relating to Poland’s rule of law breakdown; the reconduction of the neo-National Council of the Judiciary whose unconstitutional nature was once again recently reaffirmed; the systemic dysfunction marring all judicial appointments since 2018, not to forget the irregular composition of Poland’s Constitutional Tribunal, Supreme Court and Supreme Administrative Court.

Why this farcically reality-disconnected assessment? Because there was no other way to greenlight Poland’s RRP without making it too obvious you have decided to sacrifice the rule of law and those who have sought to defend it at great professional and personal cost. Additional “cover” was provided by the Polish President in the form of a bill (since adopted) which allegedly aims to (but does not in fact) comply with the Court of Justice’s ruling of 15 July 2021. Conveniently, this is what von der Leyen’s first judiciary milestone requires by the end of this month.

Milestone 1: Accepting Lipstick on a Pig as Evidence of Compliance

The optimistically minded could say: “better guaranteeing compliance with one structurally important judgment than no judgment at all” and view von der Leyen’s first milestone positively in this light. The principled counter-argument is that compliance with ECJ rulings are not supposed to be “milestones” as this “produces the perverse effect of providing financial incentives to comply with pre-existing and generalised legal obligations that bind all Member States”.

A Commission faithful to its duties as Guardian of the Treaties ought to have instead demanded as a prerequisite compliance with the ECJ order of 14 July 2021 (including the payment of accumulated amount of daily fines); the ECJ ruling of 15 July 2021 and a formal undertaking from Polish authorities that they recognise that they are bound and will comply with all ECJ rulings relating to Article 19(1) TEU, including the forthcoming ruling of the ECJ regarding their muzzle law.

Worse, all signs indicate that von der Leyen is ready to sign off on the first judiciary milestone regardless of the fact that Duda’s law amounts to an obvious “fake compliance operation”. The Commission’s readiness to look the other way is all too obvious. For instance, the Commission’s RRP package does not even acknowledge that the Disciplinary Chamber has already been found not to be a lawful court. In the same (dereliction of duties) vein, the Commission has indicated that a new disciplinary chamber would be acceptable if its “personal composition” is “significantly different”. This has no legal basis and ignores the case law of the ECtHR which has already made clear that all individuals appointed to the Supreme Court post 2018 cannot adjudicate due to the gross irregularities which have marred their appointments, notably due to the actions – in blatant defiance of the rule of law – of Poland’s President!

The mere adoption of a new law by the end of June 2022 is also supposed to suffice. Forget any prior involvement of the judiciary and asking the Venice Commission for an opinion – as required by the Commission’s own Article 7(1) TEU reasoned proposal. This also means, of course, that money will be disbursed regardless of whether President Duda’s “fake compliance” law is applied or not, and indeed whether Polish authorities will comply or not with future ECJ rule of law rulings.

Even more problematically, the most emblematic element of this milestone – the abolition of the Disciplinary Chamber (DC) and the transfer of its jurisdiction to a proper court – has already been hollowed out with President von der Leyen having positively welcomed President Duda’s “Professional Liability Chamber” whereas this body – a DC 2.0 in effect – manifestly fails to meet the requirements of an independent court established by law. This will be established in due course but not before money is likely disbursed based on this fake compliance supercherie or feint, to borrow Jakub Jaraczewski’s football analogy.

Milestone 2: Perpetuating Illegality While Pretending Otherwise

 According to European Commission, all judges affected by “past Disciplinary Chamber rulings will have the right to have these rulings reviewed without delay by a court that complies with EU requirements.”

Not only the DC 2.0 does not meet these EU requirements, it is also not true that judges will have the unlawful sanctions adopted against them reviewed without delay. Instead, the Commission has given Polish authorities until the end of 2023! – yes, not even the end of 2022 – for these “review” cases to be adjudicated with the additional possibility of not doing so in (undefined) “exceptional circumstances”…

Furthermore, this milestone does not address the increasing use of unlawful one-month suspensions and has been so poorly thought through it can be easily evaded via e.g. forced transfers, which is what happened to the first “unsuspended” Polish judge last month in breach i.a. of ECJ ruling in Case C-487/19, one of the many ECJ’s preliminary rulings being violated by Polish authorities.

It gets worse. Instead of demanding the immediate reinstatement of the judges unlawfully suspended by an unlawful body, the Commission has agreed a procedure akin to asking victims of a robbery to first request from a committee led by a majority of robbers a review of their robbery so as to eventually, but not necessarily, see the return of their stolen goods. In doing so, the Commission is irresponsibly failing to take account of the multiple rulings which have established that DC 1.0 is not a lawful court. In addition, by presenting the decisions of an unlawful body as “rulings” to be reviewed, the Commission has violated the resolution of Poland’s Supreme Court of 23 January 2020, which applied the Court of Justice’s judgement of 19 November 2019 in AK, and held that all of its past and future decisions “deserve no [legal] protection”!

In a nutshell, President von der Leyen has made the Commission complicit in the continuing violation of Polish judges’ right to effective judicial protection. It is therefore no wonder that the European Commissioner for Justice has expressed his “substantial doubts … notably as regards the re-instatement of suspended judges”.

Gaslighting MEPs

Having initially declined to appear before the European Parliament, President von der Leyen finally relented and gave a speech which however betrayed a serious misunderstanding – feigned or otherwise – of her own milestones. To begin with, MEPs were told it is enough to replace the DC with a “substantially different” chamber – a term von der Leyen attributed to the ECJ but which the ECJ has never used. She then refers to “controversial disciplinary offences” but these are not “controversial” but incompatible with EU law as established by the ECJ…

It gets worse. President von der Leyen claimed that all of her rule of law related milestones “must be fulfilled before any payment can be made” only to contradict herself by subsequently stating that a first payment will be made when a new law enters into force and unlawfully suspended judges are still unlawfully suspended.

In yet another instance of gross misrepresentation, President von der Leyen stated that “Poland must demonstrate by the end of 2023 that all unlawfully dismissed judges have been reinstated”. This is not what her (legally flawed) milestone provides for. Her own officials have admitted that some may never be reinstated. In fact, von der Leyen herself later admits she has only secured “a perspective” of seeing judges “being reinstated”. A “perspective” of seeing unlawful measures adopted by an unlawful body remedied. What a brilliant new legal approach for judges who have been “driven out of office without justification” according to von der Leyen herself last October.

Adding yet more insult to injury, the President of the Commission painted an infringement picture completely disconnected from reality omitting to mention for instance that after almost 12 months of open violation of the ECJ ruling of 15 July 2021, the Commission is yet to refer to matter back to the ECJ. Instead, MEPs were served some vague gibberish about her milestones being “a safety net to the legal procedures of the Court”. What about activating the Rule of Law Conditionality Regulation, getting on with the infringement action regarding Poland’s kangaroo constitutional “court” and finally acting against the unconstitutional neo-NCJ? Actions speak louder than (empty) words.

Appeasement, ad infinitum

Writing a few weeks before VDL’s Kapitulation deal, Professor Kelemen warned us to “never underestimate the European Commission’s willingness to appease” autocrats and its capacity “to contrive excuses for refusing to enforce the EU rule of law norms”.

In light of the above, one may be tempted to add a complementary warning: never underestimate the President of the Commission’s willingness to fake her commitment to the rule of law and the Council’s willingness to support her enabling of those engaged in its systemic violation.