Scholars urge EU Commission chief to take firm action regarding rule of law in Poland

36 professors and doctors from prestigious European, American and Polish universities have signed an open letter "regarding the Rule of Law Breakdown in Poland", addressed to the European Commission President Ursula von der Leyen. The signatories of the letter written on Friday (Sept. 25), seen by TVN24, have brought up von der Leyen's recent State of the Union address, in which, among other things, she promised not to tolerate breaches of the rule of law. "I will continue to defend it and the integrity of our European institutions. Be it about the primacy of European law, the freedom of the press, the independence of the judiciary or the sale of golden passports. European values are not for sale" - she pledged.

"We are sorry to say we are seeing ample evidence to the contrary" - wrote the authors of the open letter.

"The current Commission is failing to project any sense of urgency (at least, in public view) around this issue, while Polish authorities continue to openly abuse, harass and intimidate judges and prosecutors who are seeking to defend the rule of law. In addition, Polish authorities continue to openly defy the authority of the Court of Justice by refusing to follow its judgments, most recently its order regarding the so-called Disciplinary Chamber" - we read in the document.

In April, the CJEU urged Poland to immediately suspend to apply the rules regarding the Disciplinary Chamber of the Supreme Court, not recognised by the EU court. Although Poland should have observed the ruling with immediate effect, the Disciplinary Chamber is still handing down rulings.

The main part of the letter was divided into two parts: "Persecution of independent judges and prosecutors" and "Systemic violation of the Court of Justice’s rulings".

In the first one, the authors emphasise "the considerable number of judges and prosecutors being persecuted by Poland’s current authorities". "We are disappointed to see that even the most alarming examples have yet to generate any public reaction from the Commission" - the authors wrote.

They pointed out that a Warsaw judge Igor Tuleya has been called for the next hearing before the Disciplinary Chamber on October 5 "in violation of the Court of Justice’s order suspending the application of the legal provisions that allow this body to handle disciplinary cases concerning judges".

They also argued that the Disciplinary Chamber "has already shown its eagerness to help the government harass and persecute judges who are independently fulfilling their duties, of whom Judge Tuleya is a leading example".

"Poland will not stop harassing independent judges until the Commission lets Polish authorities know in no uncertain terms that violation of an ECJ order will not be tolerated" - the signatories added. They also stressed that the Warsaw judge's case "is far from the only case in which the 'Disciplinary Chamber' is being used to intimidate independent judges".

According to the authors of the letter, in Poland "judges who are attempting to apply EU law are being threatened and punished while those who flaunt violations of EU law are being rewarded".

"This is a situation that cannot stand in a Union supposedly based on the rule of law" - stressed the authors, reminding that also "the prosecutors have been subject to similar harassment". In this context they listed, among others, Prosecutor Krzysztof Parchimowicz, former chairman of the "Lex Super Omnia" Association of Prosecutors.

The authors also wrote that "the Ministry of Justice, whose interference in appointment of judges to the 'Disciplinary Chamber' has already been found contrary to EU law, has been the source of leaks that are designed to unsettle and threaten judges and prosecutors who attempt to enforce EU law".

"The disciplining of judges and prosecutors for attempting to uphold the rule of law is happening while Polish authorities have done nothing whatsoever following the revelation of the existence of a secret 'troll farm' hosted within the Ministry of Justice which was used to smear members of the judiciary via inter alia the (criminal) leaking of confidential information" - the authors brought up last year's scandal within the Ministry of Justice.

"The real rule of law violators are therefore escaping any sanction while those who defend the rule of law are being punished" - the authors concluded.

In the second part of the letter - entitled "Systemic violation of the Court of Justice’s rulings" - the scholars wrote among other things that Polish authorities were have been violating the ruling issued by the EU Court of Justice from April 8, 2020.

"In addition, the muzzle law of 20 December 2019 has legalised the structural violation of most fundamental principles underlying the whole EU legal order" - the authors wrote, referring to the amended law on courts ratified by President Andrzej Duda on February 4. The legislation curbs the judges' right to expressing opinions and allows for them to be disciplined. It also introduced changes in the procedure of appointing the Supreme Court's Chief Justice. The institutions that had earlier issued critical opinions on the amendment include the EU Commission, the Venice Commission, Poland's Supreme Court, the Sejm Bureau of Research, and many lawyers.

"In essence, Poland has already exited the EU’s legal order and yet your Commission is seemingly focusing its energy and limited resources on the production of yet more reports which will not change the situation on the ground by one iota unless you begin actually enforcing EU law rather than simply pointing without effect or real urgency to the sorry state of affairs" - reads the letter addressed to Ursula von der Leyen.

"We urge you once more to promptly and meaningfully act before the point of no return is reached" - the authors called. In their view, "the only way to contain the increasing lawlessness that we are witnessing in Poland is for your Commission to step up to the task it is given under the Treaties to enforce EU law".

The authors of the letter also explained what they meant by "point of no return".

"Other Member States’ courts have, appropriately, already begun to doubt whether they can trust the operation of the Polish courts. So far this has been limited to refusals to comply with European Arrest Warrants originating from Poland, but will soon spread to the refusal of other Member States’ courts to enforce Polish judgments across the board and may lead to more non-EU countries to end their cooperation in the justice sector with Poland" - they argued.

The signatories added that "this is instead a time for the Commission to aggressively wield its power to bring infringement actions and with those, to ask for interim measures to prevent the situation from getting worse while the legal issues are resolved". "This is necessary to prevent the situation not just from going bad to worse but to prevent the situation from going bad to beyond control" - they explained.

Furthermore, they said that "we have now a black hole in the EU legal order following the structural dismantling of the independence of all Polish courts".

"The only way to contain the increasing lawlessness that we are witnessing in Poland is for your Commission to step up to the task it is given under the Treaties to enforce EU law" - the authors stressed. "Do not further delay action in the name of dialogue. One simply cannot engage in dialogue with a pyromaniac who is actively adding fuel to a blaze" - they warned.

The scholars issued a call they summarised in four points. "First, we urge you to return to the Court of Justice to apply for a penalty payment regarding the continuing violation of its order of 8 April 2020" - they wrote.

"Second, the Commission must urgently issue its reasoned opinion in relation to the muzzle law and give the Polish government the minimum possible time to reply. It must then seek to lodge its infringement action with the Court of Justice without delay and apply simultaneously for interim measures to neutralise the effects of the muzzle law" - reads the second point.

"Third, as recommended by the European Parliament, the Commission should launch an infringement procedure in relation to the unlawfully composed Constitutional Tribunal; the unconstitutionally established and unlawfully composed 'Chamber of Extraordinary Review' of the Supreme Court which suffers from the same lack of judicial independence as the 'Disciplinary Chamber'; and act also against the similarly unconstitutionally established and unlawfully composed National Council of the Judiciary" - the authors suggested.

"Fourth, we urge you to publicly denounce and act against the team put in place by Poland’s ruling coalition that has been harassing judges and prosecutors" - they explained, adding that "a body in charge of initiating disciplinary procedures against members of the judiciary should at the very least demonstrate some degree of operational and investigative independence, which is patently not the case in Poland".

"The rule of law in Poland is not merely being attacked. It is being destroyed in plain sight. We are concerned that the Commission is blind to violations of European law, when it is entrusted in the Treaties to act as the guardian of EU law" - reads the letter.

Among the signatories are: French expert on European Law Prof. Laurent Pech (Middlesex University London), Prof. Kim Lane Scheppele and Prof. Jan-Werner Müller (Princeton University), Prof. Paul Craig (University of Oxford), Prof. Marlene Wind (University of Copenhagen), Dr Maarten Hillebrandt (University of Helsinki), Prof. Christophe Hillion (Oslo University), Prof. Sébastien Platon (Bordeaux University), Prof. Petra Bárd (Central European University), as well as Prof. Marcin Matczak from the University of Warsaw and Prof. Wojciech Sadurski (University of Warsaw and University of Sydney).