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The rule of law in Poland: reports from the Council's September and December hearings
21.1.19
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Statewatch is today publishing the two most recent reports produced by the Council on its 'hearings' on the situation of the rule of law in Poland, which have been held in the General Affairs Council (GAC).

The dispute between EU institutions and the Polish government, led by the Law and Justice (PiS) party, has now been rumbling on for three years.

Discussions between Poland and the other EU Member States within the Council have been opaque to the public, which is rather unfortunate given that the hearings concern the rule of law and basic democratic standards - in particular the independence of the judiciary.

For example, following the GAC on 18 September 2018, the Council's public record of the meeting (link to pdf) simply said:

"The Council held a hearing under Article 7(1) TEU on the rule of law in Poland.

The modalities for the hearing were the same as for the session at the meeting of the General Affairs Council on 26 June 2018.

Ministers continued their in-depth exchange with Poland on the concerns identified in the Commission's reasoned proposal under Article 7(1) TEU.

The Council will return to this issue."

However, a more lengthy report was produced by the Council, which has not been available to the public until now: Report of the hearing held by the Council on 18 September 2018 (12970/18, LIMITE, 5 November 2018, pdf)

Equally, following the next hearing at the GAC on 11 December 2018, the Council's public record of the meeting (link to pdf) stated:

"The Council held a hearing under Article 7(1) TEU on the rule of law in Poland. The modalities for the hearing were the same as at the meetings of the General Affairs Council on 26 June and 18 September 2018.

At the start of the hearing, the Commission gave ministers an update on the situation regarding the rule of law in Poland. Poland presented its position. Ministers were then given the opportunity to ask Poland questions on the topics raised in the Commission's reasoned proposal.

The Council will continue the Article 7(1) TEU proceedings concerning Poland under the Romanian presidency."

Again, a more detailed report remains publicly inaccesible: Report on the hearing held by the Council on 11 December 2018 (15469/18, LIMITE, 20 December 2018, pdf)

Both documents contain reports of the questions asked by other Member States, the Polish delegation's answers and copies of lengthy presentations made by the Polish delegation in defence of the government's actions.

So far the only publicly accessible report from the GAC concerns the hearing held on 26 June 2018 (pdf), which was made available on 8 August 2018.

A detailed overview of the situation to date concerning the EU and the rule of law in Poland was recently published by Verfassungsblog: 1095 Days Later: From Bad to Worse Regarding the Rule of Law in Poland (Part I) and Part II (by Laurent Pech and Patryk Wachowiec).

The authors conclude (emphasis added):

"...the situation of a systemic threat to the rule of law in Poland... has deteriorated further to the point of threatening the functioning of the whole EU legal order and therefore, the future of the EU’s internal market itself. This means that the ongoing Article 7(1) TEU procedure must continue. It is however time for the Commission to accept that stand-alone dialogue, still presented as its “preferred channel for resolving the systemic threat to the rule of law in Poland”, will lead nowhere when dealing with would-be autocrats acting in bad faith. The Commission should therefore launch accelerated infringement proceedings regarding every single issue mentioned in its Article 7(1) reasoned proposal not yet covered by any of the pending infringement or preliminary reference actions.

Should the Commission fail to do so, it is time for national governments which take the rule of law seriously and are keen to protect the EU’s internal market, to rediscover Article 259 TFEU and bring their own infringement actions against Poland. They should also seek to systemically intervene in every single ECJ action where the systemic threat to the rule of law in Poland is the key issue.

As for the Council, our key recommendation would be for it to ensure full transparency of Article 7 proceedings by systematically publishing any connected document it produces or receives from the EU Commission and national governments.

National courts have also a role to play. We would want to see as many of them refer as many preliminary requests as possible to the ECJ should they be faced with cases which, directly or indirectly, raise issues relating to the rule of law situation in Poland, if only to prevent a situation where the ECJ is unable to issue rulings because the Commission has withdrawn its infringement actions and/or the Polish authorities have been able to “kill off” all requests via formal and informal means."

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