Study: Rule of law mechanism should have been triggered before the elections against Poland
The so-called ‘judicial reforms’ of the Polish PiS government constitute serious violations of the rule of law. This entails considerable risks for the financial interests of the EU. The European Commission should therefore have triggered the rule of law mechanism against Poland by the end of 2021 at the latest. These are the main findings of a legal opinion by the renowned lawyers Laurent Pech, Anna Wójcik and Patryk Wachowiec, which was presented yesterday in the European Parliament. The report was commissioned by the Greens/EFA Group.
Daniel Freund, MEP for the Greens, comments:
‘With last weekend’s election defeat, the Polish PiS government has left behind the rule of law in a complete mess. The new government must now quickly restore the independence of the judiciary in order to gain access to the frozen EU funds and prevent the rule of law mechanism from being triggered. It is absolutely negligent that the European Commission did not trigger the mechanism against Poland as early as 2021 – despite clear evidence. The European Commission knew that there were legal grounds to trigger the mechanism. Nevertheless, it decided against it for political reasons. The Commission’s reluctance has put Polish democracy in a dangerous position. The protection of the rule of law in Europe must not be subordinated to political considerations. Ursula von der Leyen cannot rely on problems of the rule of law being solved by elections, as is now the case in Poland. In some member states – like Hungary – it is probably too late for that. The rule of law mechanism is the most effective means of protecting European values. It must be used far more proactively in the future.’
An overview of the study’s main findings:
What are the gravest rule of law violations in Poland?
Since 2015, PiS has systematically dismantled the judicial system and its independence: By now, all apex courts are composed irregularly, investigation and prosecution services have been instrumentalised, every single judicial appointment procedure is inherently defective, and key EU and ECHR provisions have been held “unconstitutional”, resulting in Polish authorities no longer recognising orders and judgments of both the European Court of Justice and the European Court of Human Rights as binding.
Why does this pose a risk to the EU budget?
The PiS government’s disregard for the rule of law has seriously affected three institutions that are crucial for the management of EU funds and the protection of the EU’s financial interests in Poland: It has compromised the functioning of the Supreme Audit Office (SAO), unbiased investigations by prosecution services, and the efficacy of judicial review in matters concerning the financial management of the EU budget. Additionally, under PiS, Poland refuses any cooperation with the European Public Prosecutor’s Office and cooperation with the EU anti-fraud agency OLAF has been problematic.
When should the Commission have triggered the Rule of Law conditionality?
After sending a request for additional information to the Polish authorities on 17 November 2021, the Commission has not undertaken any more steps towards triggering the conditionality, despite the continuing deterioration of the rule of law situation. As the study shows, the case for activating the mechanism was already compelling at the time of this request – and has become more pressing with every further step PiS took to undermine the independence of the judiciary.
The full study can be found here:
The Commission's reluctance has put Polish democracy in a dangerous position.