Rule of Law Report 2023. EU Commission has "serious concerns" regarding Poland

The Commission published on Wednesday (July 5) its fourth annual Rule of Law Report, examining the rule of law situation in each Member State. This is the fourth yearly summary prepared in response to accusations - cast by Poland and Hungary - that the EU treats the question of the rule of law selectively and points out problems only in those two countries.

That is why the EU Commission publishes its remarks on rule of law deficiencies in each Member State separately. The report has been approved during Wednesday's meeting of the College of Commissoners.

The nearly 30-page chapter devoted to Poland lists problems regarding the judiciary, anti-corruption measures, media freedom, and other issues related to checks and balances.

According to the report, "serious concerns persist related to the independence of the Polish judiciary.

"The Court of Justice has further clarified EU requirements on judicial independence, notably as regards the disciplinary regime for judges in Poland. On 5 June 2023, in an infringement procedure, the Court of Justice of the EU (Court of Justice) has held that all contested provisions of the Law adopted in December 2019 infringe EU law, in particular the principle of judicial independence and of effective judicial protection," the report said.

Furthermore, the report said the CJEU "has held in particular that Poland infringed Article 19(1) TEU by conferring to the Disciplinary Chamber – the independence of which was not guaranteed – the power to hear the cases of all judges concerning the lifting of their immunity in order to start criminal proceedings".

The EU Commission also stressed "serious concerns remain relating to the lack of implementation of final judgments and interim measures of the European Court of Human Rights regarding judicial independence". It added that "a number of judges continue to be subject to disciplinary investigations and proceedings related to the content of their judicial decisions and forced transfers".

"There are serious doubts whether a number of Supreme Court judges, including its First President, comply with the requirement of a tribunal established by law" - the Commission noted.

The EU executive acknowledged that "Poland adopted legislation to raise the standard of certain aspects of judicial independence and engaged in a further reform of the disciplinary regime for judges". "On 1 June 2022, the Commission issued a positive assessment of Poland’s Recovery and Resilence Plan (RRP), which was approved by the Council of the European Union on 17 June 2022.  It contains several commitments from Poland to improve the investment climate, including a comprehensive reform of the disciplinary regime applicable to judges, aimed at strengthening certain aspects of the independence of the judiciary."

Furthermore, Poland made a number of improvements aimed to "ensure functional independence of the prosecution service from the Government," stressing that "the functions of the Minister of Justice and the Prosecutor General are still not separate".

The report also mentions that "serious concerns persist related to the Constitutional Tribunal". It was reminded that the Commission had "decided to refer Poland to the Court of Justice for violations of EU law by the Constitutional Tribunal and its two rulings issued in 2021".

"The level of perceived judicial independence in Poland continues to be very low among both the general public and companies," we read.

The authors noted, however, "the digitalisation of justice is progressing well" and that "the overall performance of ordinary and administrative courts in terms of efficiency remains stable".

The Commission said "the perception among experts and business executives is that the level of corruption in the public sector remains relatively high". It pointed out "there has been no announcement yet to renew Poland’s anti-corruption commitments under a new Anti-Corruption Programme," and "no progress yet to strengthen Poland’s lobbying rules".

"The 2018-2020 anti-corruption programme ended and there is currently no new programme in place. No further steps were taken to strengthen lobbying rules and to standardise the asset declaration control system."

It was also mentioned that although "Poland’s criminal code was amended to increase the level of penalties for corruption," no steps have been made yet "to enable a robust track record of addressing high-level corruption, as previously identified institutional and practical barriers persist".

The report on Poland also mentions that "broad immunities of top executives who are also members of Parliament have not yet been limited". Moreover, "new impunity provisions have been adopted, jeopardising the efficient fight against high-level corruption".

"New measures have entered into force increasing the transparency of political party finance, yet concerns remain regarding party donations and election campaigns," the EU officials said, adding that "concerns of corruption risks exist in public procurement".

According to the EU Commission, "in spite of positive changes introduced in 2021, some concerns have been raised on the functional independence of the media regulator". "The 2021 amendments to the Broadcasting Act modified the procedure for the rejection of the annual report of the KRRiT by the Sejm and the Senate, which results in the automatic expiry of the mandate of the KRRiT’s members."

The KRRiT (Krajowa Rada Radiofonii i Telewizji) is Poland's National Broadcasting Council.

"There has been no further progress to ensure fair, transparent and non-discriminatory procedures for the granting of operating licences to media outlets," the report adds. In was reminded that the previous Rule of Law Report recommended to Poland to "ensure that fair, transparent and non-discriminatory procedures are adhered to for the granting of operating licences to media outlets".

It was also noted that "while legal safeguards for editorial independence are in place, there are claims of political influence over the media in practice".

"The Polish legal order includes a set of provisions related to editorial independence enshrined in the Press Law and the Law on Broadcasting. Nonetheless, stakeholders have highlighted several allegedly politically-inspired cases of interference in editorial decisions of media outlets," we read. In order to exemplify said interference, the Commission mentioned "the deletion of an interview critical towards the governmental tax reforms from the online website of a regional media outlet owned by Polska Press, bought by state-owned oil giant PKN Orlen".

Moreover, the report points out "there has been no progress to enhance the independent governance and editorial independence of public service media, amid ongoing concerns related to the independent reporting by public broadcasters".

What is more, "state controlled entities allocated advertising mainly to pro-government media" and "challenges are reported with regard to the right of access to information by journalists".

The fourth part of the report pertains to "other institutional checks and balances".

It mentions that "the practice of adopting laws through procedures not providing for adequate consultations persists" and that as of January 1, 2023, "Poland had 46 leading judgments of the European Court of Human Rights pending implementation, an increase of eight compared to the previous year".

"There has been no progress as regards the appointment of members of the College of the Supreme Audit Office," which it the EU executive's opinion was "putting at risk its effective functioning".

In its report, the European Commission also commented on the so-called "Lex Tusk". "A law empowering an administrative committee to assess and decide whether individuals should be deprived of the right to hold public office related to the handling of public funds for up to 10 years, raises serious concerns and triggered amendments". The authors reminded that the Commission had opened an infringement procedure against Poland on June 8, 2023, to which Poland had replied on June 30.

"Amendments have been adopted to the Criminal Code, which stakeholders consider incompatible with national and international law," for instance the introduction of life imprisonment without a possibility of parole.

At the same time it was acknowledged that "some progress has been made to improve the framework in which the Ombudsperson operates in relation to funding".

The Rule of Law Report also includes a list of recommendations. In the case of Poland, the Commission advised Poland to "separate the function of the Minister of Justice from that of the Prosecutor-General and continue efforts to ensure functional independence of the prosecution service from the Government".

Other recommendations include strengthening of "the existing integrity rules by introducing lobbying rules and a standardised online system for asset declarations of public officials and Members of Parliament," ensuring "independent and effective investigations and prosecutions" as well as "that fair, transparent and non-discriminatory procedures are adhered to for the granting of operating licences to media outlets".

The Commission also advised Poland to "strengthen the rules and mechanisms to enhance the independent governance and editorial independence of public service media taking into account European standards on public service media".

Poland should also "ensure a more systematic follow-up to findings by the Supreme Audit Office and ensure, as a matter of urgency, the appointment of the College Members of the Supreme Audit Office in order to ensure its effective functioning".

TVN24 correspondent in Brussels Maciej Sokołowski pointed out that - since the publication of the previous report last year - there had been no progress in implementing of the recommendations for Poland. Furthermore, he added the recommendations were virtually repeated this year.

Maciej Sokołowski explained the report does not directly impose duties on Member States, nor does it trigger sanctions in case the EU Commission recommendations are ignored. However, the publication is indirectly used by the Commission in other infingement procedures, and its provisions are often quoted as arguments in relations between Brussels and Warsaw.

The reporter added the report is used as a basis for regularly held discussions on the rule of law situation in Member States as well as in European Parliament debates on the rule of law in the EU.

The TVN24 correspondent in Brussels stressed that Poland and Hungary had rejected the report in the previous years, accusing it of bias and double standards. The two countries also claimed the EU Commission had been overstepping its authority.