11 Dezember 2019

Open Letter to the President of the European Commission

Open Letter to the President of the European Commission regarding Poland’s disciplinary regime for judges and the urgent need for interim measures in Commission v Poland (C-791/19)

Ever since the European Commission initiated a third infringement procedure in respect to the recurrent attacks on the rule of law by Polish authorities last April, the situation has continued to seriously deteriorate. We have now reached the unprecedented and frightening stage where Polish judges are being subject to harassment tactics in the form of multiple arbitrary disciplinary investigations, formal disciplinary proceedings and/or sanctions for applying EU law as interpreted by the ECJ or ‘daring’ to refer questions for a preliminary ruling to the Court of Justice.

In addition, Polish authorities are now openly challenging the authority of the rulings recently adopted by the ECJ and the not-yet-captured Labour and Social Security Chamber of the Supreme Court. These judgments concern both the Disciplinary Chamber of Poland’s Supreme Court, whose legality is being challenged in the pending infringement procedure previously mentioned, and the new National Council of the Judiciary, whose lack of independence had previously led to its suspension from the European Network of Councils for the Judiciary (ENCJ).

As representatives of non-governmental organisations and scholars specialising in matters relating to the rule of law and the protection of human rights, we write this open letter so as to urge you to take immediate steps to stop the rapidly increasing legal chaos in Poland.

As you yourself keep repeating, “there can be no compromise when it comes to respecting the rule of law”. This is why we are asking you to promptly submit to the European Court of Justice an application for interim measures in the infringement case C-791/19 Commission v Poland now pending before the Court of Justice. Without interim measures in place, Polish authorities evidently feel free to openly persecute judges who seek to apply and enforce EU law via the two institutions they de facto control: the Disciplinary Chamber and the National Council of the Judiciary.

The time has come to accept we are facing a situation in which EU law has broken down. Interim measures are called for before the situation gets worse and irreparable damage is done.

The prior Commission asked for interim measures in the case in which the government of Poland sought to capture the Supreme Court by retroactively lowering the retirement age of its judges (C-619/18 R). The Court of Justice agreed to grant the Commission’s request and Poland was ordered to maintain the status quo until the Court could rule in the matter.

Given that Polish authorities are now openly challenging the authority of ECJ case law and actively seeking to prevent Polish judges from applying EU law, while an infringement action that challenges their attempts to fatally undermine the independence of Polish judges through a new disciplinary regime is pending, fresh action is required. It is imperative to prevent the Commission from losing its ability to enforce any favourable ruling that it may eventually receive. Interim measures are therefore essential because, if Polish authorities succeed in intimidating and/or removing the judges who are most keen to apply EU law and to defend the rule of law more generally, it will be too late for the Commission’s pending infringement action to have any impact by the time the ECJ finds Poland to have violated – for the third time in a row – the principle of judicial independence.

This is why the Commission, in the context of interim proceedings, must request the Court to order Poland to immediately adopt the following interim measures:

–   refrain from all activities, including preliminary disciplinary investigations or formal disciplinary proceedings with respect to judges on account of the content of their judicial decisions or requests for preliminary rulings;

–   ensure both that the Disciplinary Chamber suspends all of its activities in light of the ECJ preliminary ruling (Joined cases C-585/18, C-624/18 and C-625/18) and the Supreme Court ruling finding it not to constitute a “court” within the meaning of EU and Polish law and that other authorities, including disciplinary officers and prosecutors, refrain from bringing actions to this chamber;

–   ensure both that the President of the Disciplinary Chamber (or any person acting on behalf of the President) is no longer able to establish, on an ad-hoc basis and with an almost unfettered discretion, disciplinary courts of first instance to cases brought against ordinary court judges and that the disciplinary courts already established in this way refrain from considering cases and issuing judgments;

–   ensure that the people appointed to the Disciplinary Chamber do not participate in the Supreme Court’s bodies – including the General Assembly of the Supreme Court Judges – in procedures intended to fill the office of the First President of the Supreme Court, which will be vacant in April 2020, or the presidents of the Supreme Court heading particular chambers;

–   ensure that the National Council of the Judiciary refrains from nominating any new individual to be appointed as a judge, including to the Disciplinary Chamber, and – more generally – abstains from any action or statement which undermine the judicial independence of Polish judges.

We wish this open letter were not necessary. Sadly, it is well established that Polish authorities have deliberately ignored the Commission’s multiple recommendations ever since the Commission’s rule of law framework was activated in respect of Poland in January 2016. Rather than taking the rule of law dialogue as a warning and an invitation to return to the rule of law, the Polish authorities have instead intensified the repression of independent judges and prosecutors.

The Rubicon has now been crossed with Polish authorities actively and purposely organising non-compliance with the ruling of the Court of Justice of 19 November 2019 and the judgment of the Supreme Court of 5 December by claiming that neither the ruling of the Court of Justice nor the judgment of the Supreme Court are of any legal significance when it comes to the continuing functioning of the Disciplinary Chamber and the National Council of the Judiciary.

Poland’s ruling party’s strategy is clear: create faits accomplis and hide behind a veneer of legality if and when required by relying on the captured Constitutional Tribunal, the so-called Disciplinary or Extraordinary Control and Public Affairs Chambers, or the ENCJ-suspended Polish National Council of the Judiciary to in effect nullify the effect of EU law in Poland whenever convenient for the ruling party.

The attacks on judicial independence we are witnessing in Poland are unprecedented in the history of the EU and legal chaos is bound to ensue and spread because Polish authorities are openly and purposefully ignoring their duties and obligations as a matter of Polish as well as EU law. If not promptly addressed through interim measures, we have no doubt this will mark the beginning of the end of the EU’s common and interconnected legal order.

A Europe that protects must also stand up for justice and for values. Threats to the rule of law challenge the legal, political and economic basis of our Union. The rule of law is central to President von der Leyen’s vision for a Union of equality, tolerance and social fairness,” says the European Commission’s website.

Time has come to put words into action by urgently applying for interim measures so as to preserve what is left of the rule of law in Poland while there is still time to prevent its complete abolition.

Yours faithfully,

Professor Laurent Pech, Middlesex University

Professor Kim Lane Scheppele, Princeton University

Professor Wojciech Sadurski, University of Sydney, University of Warsaw

Professor Alberto Alemanno, HEC Paris

Professor Leszek Balcerowicz, SGH Warsaw School of Economics

Professor Ryszard Balicki, University of Wrocław

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 Paweł Filipek, Kraków University of Economics

Professor Monika Florczak-Wątor, Jagiellonian University in Kraków

Professor Gábor Halmai, European University Institute

Professor R. Daniel Kelemen, Rutgers University

Professor Dimitry Kochenov, Groningen University

Professor Tomasz Tadeusz Koncewicz, University of Gdańsk

Professor Marcin Matczak, University of Warsaw

Professor John Morijn, Groningen University

Professor Steve Peers, University of Essex

Professor Sébastien Platon, Bordeaux University

Professor Tomasz Pietrzykowski, University of Silesia in Katowice

Professor Anna Rakowska-Trela, University of Łódź

Maximilian Steinbeis, Verfassungsblog

Professor Roman Wieruszewski, Polish Academy of Sciences

Professor Jerzy Zajadło, University of Gdańsk

Amnesty International

Association for the Defense of Human Rights in Romania – the Helsinki Committee (APADOR-CH)

Association of Judges “THEMIS” (Poland)

Bulgarian Helsinki Committee

Campaign Against Homophobia (KPH) (Poland)

Civil Development Forum (FOR) (Poland)

Civil Liberties Union for Europe (Liberties)

Estonian Human Rights Centre

Foundation Prof. Bronisław Geremek Centre (Poland)

Free Courts (Poland)

Helsinki Foundation for Human Rights (Poland)

Homo Faber (Poland)

Human Rights Monitoring Institute (Lithuania)

Human Rights Watch

Hungarian Helsinki Committee

Hungarian Civil Liberties Union

Italian Coalition for Civil Liberties and Rights (CILD)

Institute for Law and Society INPRIS (Poland)

Institute of Public Affairs (Poland)

International Federation for Human Rights (FIDH)

Irish Council for Civil Liberties

“Lex Super Omnia” Association of Prosecutors (Poland)

Open Dialogue Foundation

Open Society European Policy Institute (Belgium)

Panoptykon Foundation (Poland)

Polish Judges’ Association “Iustitia” (Poland)

Polish National Association of Judges of Administrative Courts (Poland)

Polish Society of Anti-Discrimination Law

Presidium of the Judges‘ Cooperation Forum (Poland)

Professor Zbigniew Hołda Association (Poland)

Rafto Foundation for Human Rights (Norway)

Rights International Spain

Stefan Batory Foundation (Poland)

Wiktor Osiatyński Archive (Poland)

SUGGESTED CITATION  Pech, Laurent, Scheppele, Kim Lane; Sadurski, Wojciech: Open Letter to the President of the European Commission, VerfBlog, 2019/12/11, https://verfassungsblog.de/open-letter-to-the-president-of-the-european-commission/, DOI: 10.17176/20191211-180829-0.


  1. Alice Stollmeyer Mi 11 Dez 2019 at 16:38 - Reply

    Defending Democracy

    • Łukasz Głowacki Sa 21 Dez 2019 at 20:43 - Reply

      I fully supper!

      • Łukasz Głowacki Sa 21 Dez 2019 at 20:43 - Reply

        I fully support!

  2. Michał Przybylski Mi 11 Dez 2019 at 19:27 - Reply

    Michał Przybylski

  3. Anita Fogler Do 12 Dez 2019 at 06:01 - Reply

    Anita Fogler, Warsaw.

  4. Judges4Judges Do 12 Dez 2019 at 07:12 - Reply

    Important initiative, we are happy to co-sign this open letter!

  5. Christophe Hillion Do 12 Dez 2019 at 11:08 - Reply

    Christophe Hillion

  6. Marcin Skubiszewski Do 12 Dez 2019 at 14:41 - Reply

    The Polish association Obserwatorium Wyborcze (the Election Observatory) signs this letter. Could you, please, add our signature? I am the chairman of the management board of this association.

  7. Bartosz Pilecki Do 12 Dez 2019 at 22:07 - Reply

    Very important initiative. I respectfully urge the Commission to consider and act on the letter as soon as possible – especially considering new law proposal (removing judges from office for implementing the CJEU rulings!)

  8. Anna Wallerman Ghavanini Fr 13 Dez 2019 at 06:39 - Reply

    Anna Wallerman Ghavanini

  9. Andrzej Drzemczewski Fr 13 Dez 2019 at 21:32 - Reply

    A.Drzemczewski, Strasbourg

  10. Hans Petter Graver Sa 14 Dez 2019 at 09:01 - Reply

    Hans Petter Graver, University of Oslo

    • Taszer Sa 21 Dez 2019 at 18:38 - Reply

      Thank you for having written his letter. This issue is o vital importance.

  11. Claudina Richards Sa 14 Dez 2019 at 13:34 - Reply

    Prof Claudina Richards, University of East Anglia, UK

    • Katarzyna Banasik Do 19 Dez 2019 at 11:58 - Reply


  12. Prof David Mead, University of East Anglia Sa 14 Dez 2019 at 14:00 - Reply

    Happy to sign

  13. Prof. Thomas Giegerich, Europa-Institut, Saarland University, Saarbrücken, Germany So 15 Dez 2019 at 17:40 - Reply

    I fully support the Open Letter.

  14. Iwona Szymaniak Do 19 Dez 2019 at 11:30 - Reply

    Thank you for having written his letter. This issue is o vital importance.

  15. Democracy and rule of law cannot be taken for granted. Populism and nationalism across the globe endangered them. We cannot be passive observers and must protect them. This is our watch.

  16. Gavin Barett Do 19 Dez 2019 at 13:22 - Reply

    Professor Gavin Barrett, University College Dublin.

    Happy to sign

  17. Edward Cieslar Do 19 Dez 2019 at 16:53 - Reply

    I support this innitiative.

  18. Piotr Czejkowski Do 19 Dez 2019 at 18:10 - Reply

    I support fully this request

  19. Dorota Zarembecka Do 19 Dez 2019 at 20:51 - Reply


  20. Agnieszka Robotka-Michalska Do 19 Dez 2019 at 21:36 - Reply


  21. Katarzyna Kazmierczak Do 19 Dez 2019 at 21:42 - Reply


  22. Piotr Pikinski Do 19 Dez 2019 at 21:45 - Reply

    We need normal courts in Poland.

  23. Piotr Pikinski Do 19 Dez 2019 at 21:53 - Reply


  24. ANNA FAFINSKA Do 19 Dez 2019 at 22:13 - Reply


  25. Jolanta Budzianowska Do 19 Dez 2019 at 22:37 - Reply


  26. Karol Sosnowski Do 19 Dez 2019 at 22:40 - Reply


  27. Monika Do 19 Dez 2019 at 22:48 - Reply


  28. Vesco Paskalev Do 19 Dez 2019 at 23:09 - Reply

    please add my name

  29. Malgorzata Kaminska Do 19 Dez 2019 at 23:15 - Reply

    Please help us defend democracy and freedom in Poland. Thank you

  30. Urbańska Do 19 Dez 2019 at 23:19 - Reply


  31. Bogusław Małysiak Do 19 Dez 2019 at 23:19 - Reply

    Just do it! #InterimMeasures

  32. Paweł Sawicki Do 19 Dez 2019 at 23:20 - Reply


  33. Etanol Do 19 Dez 2019 at 23:21 - Reply


  34. Andrzej Libiszewski Do 19 Dez 2019 at 23:28 - Reply

    You are our last, best hope. #InterimMeasures

  35. Ludomira Szerszenowicz Do 19 Dez 2019 at 23:28 - Reply


  36. Izabela Jakusz-Dygulska Do 19 Dez 2019 at 23:33 - Reply


  37. Tomasz Urbaś Do 19 Dez 2019 at 23:35 - Reply


  38. Barbara Mali Do 19 Dez 2019 at 23:39 - Reply

    I support fully this request

  39. Leszek Grabarczyk Do 19 Dez 2019 at 23:48 - Reply

    #InterimMeasures @vonderleyen

  40. Marta Balicki Fr 20 Dez 2019 at 00:05 - Reply


  41. Artur Grzybowski Fr 20 Dez 2019 at 00:21 - Reply


  42. Anna Kopycińska Fr 20 Dez 2019 at 00:50 - Reply

    I support this request with all my heart. Here in Poland people are fighting to keep democratic system and independent judiciary. Please help us

  43. MAŁGORZATA STEFANIUK Fr 20 Dez 2019 at 01:16 - Reply


  44. Sebastian Dudek Fr 20 Dez 2019 at 07:57 - Reply

    I support this request with all my heart. Here in Poland people are fighting to keep democratic system and independent judiciary. @vonderleyen

  45. Rafał Słowicki Fr 20 Dez 2019 at 08:15 - Reply


  46. Bona Jerzy Fr 20 Dez 2019 at 08:19 - Reply

    Jerzy Bona
    Fr. 20 Dez.

  47. Jarek Włodarczyk Fr 20 Dez 2019 at 08:39 - Reply

    I support this request!

  48. Joanna Dudek Fr 20 Dez 2019 at 09:36 - Reply

    I support this!!!!!!

  49. Tomasz Czajewicz Fr 20 Dez 2019 at 10:58 - Reply


  50. Ben Crum Fr 20 Dez 2019 at 11:03 - Reply

    I completely agree with this urgent call!

  51. Adam Pawłowski Fr 20 Dez 2019 at 11:17