EU justice commissioner Didier Reynders said at a meeting of parliamentary committees on Thursday that justice reforms in Poland “continue to be a source of serious concern”. He also assessed that “they increased the influence of the executive and legislative powers over the justice system to the detriment of the independence of judges.” Reynders also spoke about the situation of journalists, women and LGBTI people in the country.
Didier Reynders, the European Commissioner for Justice, is visiting Warsaw. Reynders spoke, inter alia, at the Thursday meeting of the Sejm’s justice and EU affairs committees, where he presented the “Report on the rule of law of 2021”. It covers four areas: justice, anti-corruption framework, media pluralism and other institutional issues related to checks and balances.
Didier Reynders on the judiciary: reforms remain a source of serious concern
Reynders emphasized that the rule of law is the legal, political and economic foundation of the EU, and that its failings affect other countries. He said that the report was part of the dialogue within the Union aimed at preventing or aggravating existing problems.
– As for the justice system [w Polsce – przyp. red.], we say in our report that reforms, including the latest developments, remain a source of serious concern, he said.
He said that “the reforms carried out since 2015 have increased the influence of the executive and legislative powers on the justice system to the detriment of the independence of judges” and prompted the European Commission to initiate a procedure under Art. 7 sec. 1 of the Treaty on European Union, which is still pending.
He recalled that in April this year, the Commission referred a case against Poland to the Court of Justice of the European Union in connection with the laws on the judiciary, which – he said – undermine the independence of judges and are inconsistent with EU law, and in July this year. The CJEU ordered interim measures in this regard. The EU Tribunal ordered the suspension of the activities of its Disciplinary Chamber, not recognized by the Supreme Court, which, in the opinion of many lawyers, judges and constitutionalists, is not a court within the meaning of the law.
Reynders pointed out that, as a result of failure to comply with this order, a daily fine was imposed on Poland, to be paid until all measures have been introduced or until a final judgment is issued in the case.
He recalled that also in July, the CJEU ruled that the disciplinary system for judges in Poland was inconsistent with EU law, and that the National Council of the Judiciary continued to operate despite questioning its independence.
He noted that there were also irregularities in the procedure for appointing judges of the Constitutional Tribunal. – The Commission is also very concerned about the recent judgments of the Polish Court of 14 July and 7 October. These judgments challenge the basis of the European Union and directly challenge the unity of the European legal order. Poles must be able to rely on fair and equal treatment by the judiciary, just like all European Union citizens. We cannot and will not allow our shared values to be put at risk, he said.
On July 14, the Constitutional Tribunal, examining a question from the unrecognized Disciplinary Chamber of the Supreme Court, ruled that the provision of the EU treaty, based on which the Court of Justice of the EU obliges Member States to apply interim measures regarding the judiciary, is unconstitutional. On October 7, the Polish Court ruled that selected provisions of the Treaty on European Union are inconsistent with the Constitution.
EU commissioner on the situation of journalists, women and LGBTI people in Poland
Reynders said that the European Commission also identified risks in the report in terms of the effectiveness of the fight against high-level corruption, including undue influence on allegations of corruption for political purposes. He emphasized that there are doubts regarding, inter alia, subordination of the Central Anticorruption Bureau to the executive power and the fact that the minister of justice is also the prosecutor general. Both of these functions are performed by Zbigniew Ziobro (Solidarna Polska, PiS club).
In addition, he said, the European Commission pointed out that although the Polish media market has so far been considered diversified, there are concerns about the “negative effects of the takeover of Polska Press by the state-owned concern Orlen” and worse conditions for foreign entities. She also noted that “since 2020, the professional environment of journalists has deteriorated due to intimidation, court proceedings, growing lack of protection and brutal actions during protests, including by the police forces.”
The Commissioner added that the EC also drew attention to the fast-track legislative path in relation to issues not related to the COVID-19 pandemic, only structural reforms, without consultation with interested parties or with very limited consultation.
He said the Commission also highlighted the key role of the Ombudsman in protecting the rule of law and pointed out that “the civil society space is still strong, but has been hit by general problems regarding women’s rights and attacks against LGBTI groups.”
Crisis on the Polish border with Belarus. Reynders: we are working on sanctions
Didier Reynders also referred to the situation on the Polish-Belarusian border. He stressed that it was the subject of talks with other European Union commissioners. – We express our solidarity towards Poles and towards the Polish authorities, because we are still working on sanctions against Belarus and we will cooperate with the countries of origin [migrantów – przyp. red.]to detain migrants in their countries of origin and with airlines, to curb this flow, he declared.
He stressed that they were considering whether international organizations such as the United Nations could gain access to people at the border who are not responding to the enormous humanitarian crisis they find themselves in.
MEPs comment on the EU report
The head of the justice committee Marek Ast (PiS) stressed that he did not agree with the theses contained in the report. He said that Poland recognizes the supremacy of European law in parts indicated in the treaties, but believes that the scope of matters not submitted to the EU remains the exclusive domain of domestic law. He argued that, similarly to the Polish Constitutional Tribunal, the constitutional courts, inter alia, France and Germany, but – in his opinion – only Poland is required to pay fines. According to him, this shows double standards applied by the EU.
PiS spokeswoman Anita Czerwińska decided that the report was not reliable and contained a lot of false information. She stated that the Polish government had strong legitimacy to implement the reform of the justice system. Other PiS MPs also protested, accusing the report of being biased and asking why it does not take into account, inter alia, the problem of “rising anti-Semitism in France and Germany”. They argued that the threat to the rule of law was the misconduct of judges, and not the changes to their discipline.
Opposition MPs, including Cezary Tomczyk (Koalicja Obywatelska), argued that “Poland is not PiS” and that it is in the interest of every Polish citizen that the justice system should function properly. Arkadiusz Myrcha (KO) spoke about “the progressive orbanization in Poland, that is the privatization of state institutions for the benefit of a narrow political group”.
Others asked about Reynders meeting with head of the Supreme Audit Office, Marian Banas, and Krzysztof Śmiszek (Left) asked how to remedy the situation after the judgments of the Constitutional Tribunal and what could be the risk of maintaining the current state.
Reynders: It is important to ensure the independence of the judges
Didier Reynders assured that the European Commission applies a uniform methodology to all countries and expects to apply the same standards. He stressed that the debate on the judiciary dimension was ongoing in many countries, but that “the main rule is that there should be no regression, so as not to worsen the situation”. He argued that the European Commission does not want to impose a uniform system in the judiciary and respects the history and legal tradition of the member states.
He noted that accession to the Union was the moment when Poland agreed to all the provisions of the treaty, including Art. 19, concerning the independence of the judiciary. – If you cede some part of your sovereignty by making commitments, then please respect them later – he said.
He stressed that “what matters is to ensure the independence of judges”. – We do not want to be able to discipline judges for the fact that one of them turned to the CJEU with a question – he added. He pointed out that a Polish judge is also a European judge and that justice and its mechanisms should be allowed to work. He emphasized that the CJEU is the highest interpretation in the EU judiciary and it is crucial to implement its judgments.
The EU commissioner spoke about the concerns raised by the judgments of the Constitutional Tribunal in Poland. – We also have other tools to react: we will control the discussion on Article 7, maybe we will turn to the Court of Justice again – he enumerated. He stressed that the primacy of European law is the basis for uniform protection of the interests of citizens in the EU.