Professor Laurent Pech

Those interested in the rule of law might find the European Commission’s unpublished Opinion on the Rule of Law in Poland, adopted June 1, 2016, insightful (see the Annex for the full text).

This post aims to provide context for non-experts. It will briefly outline the instrument used by the Commission to formulate its Rule of Law Opinion and then summarize why the Commission felt compelled to address rule of law concerns in Poland. This post will also touch upon the Commission’s initial reasoning for denying access to this Opinion under Regulation 1049/2001 (public access to EU documents).

(1) Overview of the EU’s Rule of Law Framework

To address what some EU officials have called a rise in rule of law crises, the European Commission introduced a new framework to bolster the rule of law in March 2014. This tool was specifically designed to tackle situations where a “systemic threat to the rule of law” emerges in a Member State. Shortly after, Frans Timmermans was appointed First Vice-President of the European Commission, responsible for areas including the Rule of Law.

Functioning as an early warning system, the Commission’s rule of law framework primarily facilitates structured dialogue with the Member State in question. The goal is to prevent any developing systemic threat to the rule of law from escalating into a serious breach of EU values outlined in Article 2 TEU. This procedure is meant to precede the initiation of what is sometimes referred to (though somewhat misleadingly) as the “nuclear option” outlined in Article 7 TEU (which involves suspending a Member State’s rights due to violating EU values). This explains why the 2014 Framework is informally dubbed the “pre-Article 7 procedure.”

This new “pre-Article 7 procedure” involves a three-step process managed by the Commission: (1) assessment; (2) recommendation; and (3) follow-up. During the assessment, the Commission may send a “rule of law opinion” to the national government of the Member State if there are clear signs of a systemic threat to the rule of law. If the situation remains unresolved, the Commission may issue a “Rule of Law Recommendation,” proposing steps and measures to rectify the situation within a specified timeframe. Lastly, the Commission monitors the implementation of any recommendations issued. If these recommendations are not satisfactorily implemented, the Commission can trigger the Article 7 TEU mechanism.

(2) Poland’s First Encounter with the Rule of Law Framework

On January 13, 2016, Frans Timmermans announced that the Commission would conduct a preliminary assessment of the situation surrounding the Polish Constitutional Tribunal under the Rule of Law Framework, marking the first-ever use of this new instrument. This unprecedented action was prompted by the Polish government’s disregard for binding rulings of the Constitutional Tribunal - “a grave issue in any state governed by the rule of law,” according to the First Vice-President of the European Commission. A period of intensive, confidential dialogue between the Commission and the Polish government followed. However, due to the Polish government’s lack of concrete action to address the concerns, the Commission felt it necessary to formalize its assessment of the situation in Poland by adopting a “Rule of Law Opinion” on June 1, 2016. The Polish government was asked to provide observations to address the Commission’s concerns within a reasonable timeframe. However, the full text of the Commission Opinion was not made public at that time; only a press release announced it.

(3) Seeking Access to the Commission Opinion’s Full Text

My initial request for full text access was denied by the Commission. They argued that disclosing the June 1, 2016 Commission Opinion would “jeopardize the ongoing investigation” and “damage the necessary climate of mutual trust between the Member State’s authorities and the Commission” needed to find a solution and prevent a systemic threat to the rule of law (my request was submitted June 7, 2016, and denied July 18, 2016). Partial access was also rejected on the same grounds.

This reasoning is understandable. The Commission’s Communication on the Rule of Law Framework itself states that “while the Commission will publicly announce the launch of the assessment and the sending of its opinion, the content of the exchanges with the Member State concerned will, as a rule, be kept confidential to facilitate a swift resolution.” While the reference to “exchanges” might imply that the Commission did not intend to keep any Opinion itself confidential, but rather only the “exchanges,” some level of confidentiality could be beneficial at this stage.

However, the Commission’s initial refusal to disclose the full June 1, 2016 Rule of Law Opinion seemed at odds with the full disclosure of the Venice Commission’s Opinion on amendments to the Act of June 25, 2015, on the Constitutional Tribunal of Poland on March 11, 2016. More importantly, it prevented external scrutiny of the Commission’s actions and deprived Polish citizens and their elected representatives of the opportunity to engage with the Commission’s assessment and collaboratively work towards solutions with their government.

Nevertheless, the Commission’s subsequent publication of a Rule of Law Recommendation on July 27, 2016 prompted me to request a review of their initial refusal. I argued, among other things, that the period of “mutual trust” had not yielded good-faith cooperation from the Polish government or produced the desired results expected by both the European Commission and the Venice Commission. I emphasized that disclosing the Opinion would not hinder the Commission’s investigation, especially after publicly releasing the Rule of Law Recommendation.

Upon review, the Secretariat General of the Commission granted access to the Opinion’s full text. They determined that the exception stipulated in Article 4(2) of Regulation 1049/2001 no longer applied following the “Commission’s issuance, on July 27, 2016, of a Recommendation regarding the rule of law in Poland.”

Those familiar with the July 27, 2016 Commission Recommendation will quickly notice its close alignment with the Opinion’s content. However, it places greater emphasis on the effective functioning of the Polish Constitutional Tribunal, particularly following the Polish Parliament’s adoption of the law on the Constitutional Tribunal on July 22, 2016.

Professor Kochenov and I plan to provide a more comprehensive analysis of the Commission’s Rule of Law Framework as applied to Poland in November, after the deadline for implementing the Commission’s recommendations has passed (evidence suggests that the Polish government has chosen confrontation over compromise with the EU and will not implement them). In the meantime, readers may find this special rule of law issue of the Journal of Common Market Studies and its articles particularly relevant.

Barnard & Peers: chapter 8

Photo credit: www.dw.com

Annex

COMMISSION OPINION of 1.6.2016 regarding the Rule of Law in Poland

1. Introduction

1. This opinion outlines the European Commission’s concerns regarding the rule of law in Poland and provides the Republic of Poland an opportunity to respond.

2. The European Union is built on shared values enshrined in Article 2 of the Treaty on European Union, particularly respect for the rule of law. The Commission, in addition to ensuring compliance with EU law, is also responsible for safeguarding the Union’s shared values alongside the European Parliament, Member States, and the Council.

3. Therefore, considering its responsibilities under the Treaties, the Commission adopted the Communication “A new EU Framework to Strengthen the Rule of Law” on March 11, 2014, [1 COM(2014) 158 final, hereinafter “the Communication”.] This Rule of Law Framework outlines the Commission’s response to threats to the rule of law in a Member State and explains the principles underpinning the rule of law.

4. After careful consideration, the Commission believes that the following issues in Poland raise serious concerns regarding these principles.

Rule of Law Framework

5. The Rule of Law Framework guides dialogue between the Commission and the Member State to prevent the escalation of systemic threats to the rule of law.

6. This dialogue aims to help the Commission and the Member State find a solution, preventing the emergence of a systemic threat to the rule of law that could become a “clear risk of a serious breach” potentially triggering the ‘Article 7 TEU Procedure’. When there are clear indicators of a systemic threat to the rule of law in a Member State, the Commission can initiate dialogue with that Member State under the Rule of Law Framework.

7. Case law from the Court of Justice of the European Union and the European Court of Human Rights, along with documents from the Council of Europe (drawing on the Venice Commission’s expertise), provide a non-exhaustive list of these principles, defining the core meaning of the rule of law as a shared value of the Union under Article 2 of the Treaty on European Union (TEU). These principles include legality, requiring a transparent, accountable, democratic, and pluralistic lawmaking process; legal certainty; prohibiting arbitrary executive power; ensuring independent and impartial courts; guaranteeing effective judicial review respecting fundamental rights; and upholding equality before the law2. [2 See COM(2014) 158 final, section 2, Annex I.] Besides upholding these principles and values, state institutions also have a duty of loyal cooperation.

8. The Framework is triggered when a Member State’s authorities take measures or tolerate situations likely to systematically and negatively impact the integrity, stability, or proper functioning of its institutions and mechanisms safeguarding the rule of law3. [3 See para 4.1 of the Communication.] The goal is to address systemic threats to the rule of law4. [4 See para 4.1 of the Communication.] The threat must affect a Member State’s political, institutional, and/or legal order, its constitutional structure, separation of powers, the independence or impartiality of the judiciary, or its system of judicial review (including constitutional justice where applicable)5. [5 See para 4.1 of the Communication.] The Framework is activated particularly when national “rule of law safeguards” seem incapable of effectively addressing these threats.

9. The Rule of Law Framework has three stages:

· Commission assessment: The Commission gathers and analyzes relevant information to determine if there are clear indications of a systemic threat to the rule of law. If the evidence suggests a systemic threat, the Commission initiates dialogue with the Member State by sending a “rule of law opinion” outlining its concerns. This opinion may stem from correspondence and meetings with relevant authorities and be followed by further exchanges.

· Commission Recommendation: If the issue remains unresolved, the Commission can issue a “rule of law recommendation” to the Member State, recommending solutions within a specific timeframe and requesting information on steps taken. The Commission will make its recommendation public.

· Follow-up to the Commission Recommendation: The Commission monitors the Member State’s implementation of the recommendation. If implementation is unsatisfactory within the set timeframe, the Commission may resort to the ‘Article 7 Procedure’.

The entire process relies on continuous dialogue between the Commission and the Member State.

Factual context

10. In November 2015, the Commission became aware of a dispute in Poland concerning the composition of the Constitutional Tribunal, including the shortening of the mandates of its President and Vice-President. The Constitutional Tribunal issued two judgments on these matters on December 3 and 9, 2015.

11. Additionally, the Commission observed that the Sejm adopted a law amending the law on the Constitutional Tribunal on December 22, 2015, impacting the Tribunal’s functioning and the independence of its judges6. [6 Law of 22 December 2015 amending the Law of 25 June 2015 on the Constitutional Tribunal. The amending Law was published in the Official Journal on 28 December; item 2217.]

12. In a letter dated December 23, 2015, to the Polish Government7, [7 Letter of 23 December 2015 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski and Minister of Justice Mr Ziobro.] the Commission requested information about the constitutional situation in Poland, including the authorities’ intended actions regarding the two Constitutional Tribunal judgments. Regarding the amendments within the December 22, 2015 Law on the Constitutional Tribunal, First Vice President Timmermans stated his expectation that the law would not be finalized or enacted until all questions regarding its impact on the independence and functioning of the Constitutional Tribunal were thoroughly assessed. The Commission also recommended close collaboration between the Polish authorities and the Council of Europe’s Venice Commission8. [8 European Commission for Democracy through Law (Venice Commission)].

13. On December 23, 2015, the Polish Government requested an opinion from the Venice Commission on the December 22, 2015 Law. However, the Polish Parliament proceeded without awaiting the opinion, publishing the law in the Official Journal and enacting it on December 28, 2015.

14. On December 30, 2015, the Commission wrote to the Polish Government9, [9 Letter of 30 December 2015 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski and Minister of Justice Mr Ziobro.] seeking additional information regarding proposed reforms to the governance of Poland’s Public State Broadcasters. First Vice President Timmermans inquired about the consideration given to relevant EU law and media pluralism during the drafting of the new “small media law.”

15. On December 31, 2015, the Polish Senate adopted the “small media law,” concerning the management and supervisory boards of Polish public television and radio broadcasters. This law transferred control over appointments to these boards from an independent body to the Treasury Minister. It also mandated the immediate dismissal of existing Supervisory and Management Boards.

16. On January 7, 2016, the Polish Government responded10 [10 letter of 7 January 2016 from Undersecretary of State Mr Stepkowski to First Vice President Timmermans] to the letter regarding the media law, denying any negative impact on media pluralism. On January 11, the Commission received the Polish Government’s response regarding the Constitutional Tribunal reform11. [11 letter of 11 January 2016 from Minister of Justice Mr Ziobro to First Vice President Timmermans] These responses failed to alleviate existing concerns.

17. On January 13, 2016, the College of Commissioners held an initial orientation debate to assess the situation in Poland. The Commission decided to examine the situation under the Rule of Law Framework and tasked First Vice President Timmermans with engaging in dialogue with Polish institutions to clarify the issues and identify potential solutions.

18. On the same day, First Vice-President Timmermans informed the Polish Government in writing12 [12 Letter of 13 January 2016 from First Vice President Timmermans to Minister of Justice Mr Ziobro.] about the Commission’s examination of the situation under the Rule of Law Framework and its desire for dialogue with Polish institutions to clarify the issues and find solutions.

19. On January 19, 2016, the Commission offered its expertise and proposed discussions with the Polish Government13 [13 Letter of 19 January 2016 from Commissioner Oettinger to Minister of Justice Mr Ziobro.] regarding the new media law.

20. The Polish Government responded to the Commission on January 19, 201614, [14 Letter of 19 January 2016 from Minister of Justice Mr Ziobro to First Vice President Timmermans.] presenting its views on the judicial appointment dispute, referencing a constitutional custom related to such appointments. The letter highlighted the positive impacts of the amendment to the Act on the Constitutional Tribunal.

21. The Commission wrote to the Polish Government again on February 1, 201615, [15 Letter of 1 February 2016 from First Vice President Timmermans to Minister of Justice Mr Ziobro.] noting the lack of implementation of the Constitutional Tribunal’s judgments on judicial appointments. The letter emphasized the need to further examine the amendment to the Act on the Constitutional Tribunal, especially its “combined effect,” requesting more detailed explanations. The Commission also sought information about other recently adopted laws (specifically the new Civil Service Act, the Act amending the law on the Police, certain other laws, and the Law on the Public Prosecution Service) and anticipated legislative reforms, particularly those concerning media legislation.

22. On February 29, 2016, the Polish Government provided further clarifications16 [16 Letter of 29 February 2016 from Minister of Foreign Affairs Mr Waszczykowski to First Vice President Timmermans.] to the Commission regarding the mandate of the President of the Constitutional Tribunal. The letter clarified that the Tribunal’s December 9, 2015 judgment deemed the amending law’s interim provisions (ending the President’s mandate) unconstitutional and void. As a result, the current President would continue in his role based on previous legislation until December 19, 2016. The letter stated that the next President’s term would last three years. It also requested clarification on the Commission’s stance regarding the implementation of the Constitutional Tribunal’s binding and final judgments and its view that the December 2, 2015 resolutions electing three Constitutional Tribunal judges contradicted the Tribunal’s subsequent judgment.

23. On March 3, 2016, the Commission responded to the Polish Government’s request for clarification17 [17 Letter of 3 March 2016 from First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski.] regarding the judicial appointments outlined in the February 29, 2016 letter. Regarding the amendment to the Act on the Constitutional Tribunal, the letter noted a preliminary assessment suggesting that certain amendments, both individually and collectively, hindered the Constitutional Tribunal’s ability to review the constitutionality of new laws and requested further detailed explanations. Information was also sought regarding other recently adopted laws and anticipated legislative reforms.

24. The Constitutional Tribunal ruled the December 22, 2015 Law unconstitutional on March 9, 2016. This judgment has yet to be published in the Official Journal.

25. The Venice Commission adopted its opinion “on amendments to the Act of 25 June 2015 on the Constitutional Tribunal” on March 11, 201618. [18 Opinion no. 833/2015, CDL-AD(2016)001.]

26. On March 21, 2016, Poland’s Minister of Foreign Affairs, Mr. Waszczykowski, invited First Vice President Timmermans to a meeting in Poland to discuss the ongoing dialogue between the Polish Government and the Commission and determine how to proceed impartially, constructively, and collaboratively.

27. On March 31, 2016, Secretary of State for European Affairs Mr Szymanski wrote to FVP Timmermans with updates and legal assessments regarding the Polish Constitutional Tribunal dispute. The letter included a note from Undersecretary of State Mr Stępkowski titled “Polish Constitutional Tribunal and the current controversy around it”.

28. On April 5, 2016, First Vice-President Timmermans met with Minister of Foreign Affairs Mr Waszczykowski, Minister of Justice Mr Ziobro, Deputy Prime Minister Mr Morawiecki, and the President and Vice-President of the Constitutional Tribunal, Mr Rzepliński and Mr Biernat, in Warsaw.

29. Following these meetings, several more took place between the Polish Government (represented by the Ministry of Justice) and the Commission.

30. Since its March 9, 2016 judgment, the Constitutional Tribunal resumed adjudicating cases. The Polish Government has not participated in these proceedings, and the Tribunal’s judgments since March 9, 2016, remain unpublished by the Government in the Official Journal19. [19 Since 9 March 2016 nine judgments have been rendered by the Constitutional Tribunal which have not been published.]

31. On April 6, 2016, the President of the Constitutional Tribunal revealed a letter from Minister of Justice Mr Ziobro (dated April 5, 2016) stating that the Tribunal was legally bound to follow the December 22, 2015 Law. The letter declared that the Minister of Justice, as Prosecutor-General, would not legitimize any attempts by the Tribunal to act outside the framework of the Constitution and the December 22, 2015 Law and would monitor the legality of such attempts.

32. On April 20, 2016, the Commission met with representatives from the Network of Presidents of Supreme Judicial Courts of the EU and the Conference of European Constitutional Courts to discuss the situation in Poland. Chief Justice Denham, President of the Network of Presidents, provided written contributions for this meeting.

33. On April 26, 2016, the General Assembly of the Supreme Court of Poland adopted a resolution confirming the validity of the Constitutional Tribunal’s rulings, even without publication in the Official Journal by the Polish Government.

34. On April 28-29, 2016, a delegation from the Venice Commission visited Warsaw to discuss recent amendments to the Law on the Police and certain other laws20 [20 Law of 15 January 2016 amending the Law on Police and other laws, published in Official Journal on 4 February 2016, item 147.] in preparation for issuing an opinion on June 10-11, 2016.

35. An expert group was formed within the Sejm to draft a new law on the Constitutional Tribunal. On April 29, 2016, a group of Sejm members submitted a legislative proposal for a new Constitutional Tribunal Act to replace the existing one. This proposal includes several provisions criticized by the Venice Commission in its March 11, 2016 opinion and deemed unconstitutional by the Tribunal in its March 9, 2016 ruling. This includes requiring a two-thirds majority for decisions on the “abstract” constitutional review of newly adopted laws.

36. On May 5, 2016, the President of the Constitutional Tribunal, Mr. Rzepliński, disclosed a letter from Poland’s Minister of Finance, Mr. Szałamacha, dated May 2, 2016. The letter urged restraint in public statements regarding the situation surrounding the Tribunal until May 13, 2016, due to a pending credit rating decision for Poland by a credit rating agency.

37. On May 24, 2016, First Vice-President Timmermans held meetings in Warsaw with Prime Minister Ms Szydło, President and Vice-President of the Polish Constitutional Tribunal Mr Rzepliński and Mr Biernat, Ombudsman Mr Bodnar, Mayor of Warsaw Ms Gronkiewicz-Waltz, and members of the Sejm’s opposition parties. First Vice-President Timmermans met with Deputy Prime Minister Mr Morawiecki in Brussels on May 26, 2016. Further exchanges and meetings between the Commission and the Polish government followed.

38. Despite the detailed and constructive nature of these exchanges, the Commission’s concerns remain unresolved.

2. Scope of the opinion

39. This opinion outlines the Commission’s current concerns regarding the rule of law in Poland, focusing on:

· appointing judges to the Constitutional Tribunal and implementing its December 3 and 9, 2015 judgments on these matters21; [21 The Commission considers the issue of the shortening of the mandate of the President and the Vice-President of the Constitutional Tribunal as resolved in view of the judgment of the Tribunal of 9 December 2015 and the clarifications received from the Polish Government.]

· the December 22, 2015 Law amending the Law on the Constitutional Tribunal, the Tribunal’s March 9, 2016 judgment on this law, and respect for the Tribunal’s judgments issued since March 9, 2016;

· the effectiveness of constitutional review of new legislation, particularly the new media law and other laws adopted and enacted in 2016.

3. Appointment of judges of the Constitutional Tribunal

I. The Facts

40. Leading up to the October 25, 2015 general elections for the Sejm, the outgoing legislature nominated five individuals for ‘appointment’ as judges of the Constitutional Tribunal by the President of the Republic on October 8. Three judges were to fill vacancies arising during the outgoing legislature’s term, while two were for vacancies occurring during the incoming legislature’s term (commencing November 12, 2015).

41. On November 19, 2015, the new legislature amended the Law on the Constitutional Tribunal via an accelerated procedure, allowing for the annulment of judicial nominations made by the previous legislature and the nomination of five new judges. The amendment also reduced the President and Vice-President of the Tribunal’s terms from nine years to three, with the current terms automatically ending within three months of the amendment’s adoption. On November 25, 2015, the new legislature annulled the five nominations by the previous legislature and nominated five new judges on December 2.

42. The Constitutional Tribunal addressed the decisions of both legislatures. It issued two judgments on December 3 and 9, 2015.

43. In its December 3 judgment22, [22 K 34/15] the Constitutional Tribunal ruled that the previous Sejm legislature had the right to nominate three judges to replace those whose terms ended on November 6, 2015. However, the Tribunal clarified that the Sejm was not entitled to elect judges for positions expiring in December. The judgment specifically mentioned the President of the Republic’s obligation to immediately swear in judges elected by the Sejm.

44. On December 923, [23 K 35/15.] the Constitutional Tribunal invalidated the legal basis for the new Sejm legislature’s nomination of three judges for the vacancies (occurring on November 6, 2015) for which the previous legislature had already made lawful nominations. The Constitutional Tribunal also deemed the reduction of the President and Vice-President’s term from nine to three years constitutional only if applied to future mandates and if renewal was impossible.

45. Despite these judgments, the three judges nominated by the previous legislature have not assumed their roles in the Constitutional Tribunal, nor have they been sworn in by the President of the Republic. Conversely, the President has sworn in the three judges nominated by the new legislature without a valid legal basis.

46. Meanwhile, the two judges elected by the new legislature to replace those departing in December 2015, Ms. Przyłębska and Mr. Pszczółkowski, have assumed their positions in the Constitutional Tribunal.

47. On April 28, 2016, the President of the Republic swore in Mr. Jędrzejewski, nominated earlier that month by the new legislature to succeed Mr. Granat, whose term as judge had ended.

II. Assessment

Appointment of judges of the Constitutional Tribunal

48. The Commission believes that the binding and final judgments of the Constitutional Tribunal (dated December 3 and 9, 2015) regarding the appointment of judges have not been implemented. These judgments necessitate loyal cooperation between Polish state institutions to ensure that the three judges nominated by the previous Sejm legislature can assume their roles in the Constitutional Tribunal, and the three judges nominated without a valid legal basis by the new legislature do not. The lack of implementation raises serious concerns regarding the rule of law, as adhering to final judgments is crucial.

49. In correspondence, the Polish Government cited a constitutional custom in Poland regarding judicial nominations, justifying the new Sejm legislature’s position. However, the Commission notes, as did the Venice Commission24, [24 Opinion, para 112.] that interpreting and applying national constitutional law and custom falls to the Constitutional Tribunal, which did not reference such a custom in its judgments. Invoking an alleged constitutional custom that the Tribunal did not recognize cannot overturn the December 3 judgment validating the nominations of three judges by the previous Sejm for positions vacant as of November 6.

50. Furthermore, limiting these judgments’ impact to mere publication (as suggested by Polish authorities) would deny their legal and operational effect. Specifically, it disregards the President of the Republic’s obligation to swear in the judges, as confirmed by the Constitutional Tribunal.

51. Lastly, the Commission notes that the Venice Commission also believes that resolving the conflict surrounding the Constitutional Tribunal’s composition “must be based on the obligation to respect and fully implement the judgments of the Constitutional Tribunal” and thus “calls on all State organs and notably the Sejm to fully respect and implement the judgments"25. [25 Opinion, para 136.]

Conclusion

52. Therefore, the Commission believes that the Polish authorities must respect and fully implement the Constitutional Tribunal’s December 3 and 9, 2015 judgments. These judgments require state institutions to cooperate to ensure that the three judges nominated by the previous legislature can assume their positions in the Constitutional Tribunal and that the three judges nominated without a valid legal basis by the new legislature cannot.

4. Amendment of 22 December 2015 to the Law on the Constitutional Tribunal

I. The Facts

53. On December 22, 2015, the Sejm amended the Law on the Constitutional Tribunal through an accelerated procedure26. [26 Law of 25 June 2015 on the Constitutional Tribunal, published in Official Journal on 30 July 2015, item 1064, as amended. The Law of 22 December 2015 was published in the Official Journal on 28 December; item 2217.] These amendments included changes such as an increased attendance quorum for judges hearing cases27, [27 See Article 1(9) new, replacing Article 44(1-3).] higher majorities needed for judgments in full configuration28, [28 See Article 1(14) new, replacing Article 99(1).] mandatory handling of cases in chronological order29, [29 See Article 1(10) new, inserting a new Article 80(2).] and a minimum delay for hearings30. [30 See Article 1(12) new, replacing Article 87(2).] Some amendments31 [31 See Article 1(5) new, inserting a new Article 28a and Article 1(7) new, inserting a new Article 31a.] increased the involvement of other state institutions in disciplinary proceedings against Tribunal judges. These amendments are detailed below.

Attendance quorum

54. The amended Article 44(3) states that “Adjudicating in full bench shall require the participation of at least 13 judges of the Court.“32 [32 This new attendance quorum also applies for resolutions of the General Assembly, unless otherwise provided in the Law, see Article 1(3) new, amending Article 10(1).] The amended Article 44(1) under 1) states that the Constitutional Tribunal shall rule in full configuration unless otherwise specified by law, particularly in “abstract cases” involving constitutional reviews of new laws. The amended Article 44(1) under 2) and 3) outlines exceptions, such as individual complaints or cases submitted by ordinary courts. Previously, the law required at least nine judges for a full bench decision (Article 44 (3), item 3, before amendment).

Voting majority

55. The amended Article 99(1) requires a two-thirds majority of judges for judgments issued by the Constitutional Tribunal in full configuration (for “abstract cases”). With the new (higher) attendance quorum, at least nine judges must approve a judgment when the Constitutional Tribunal adjudicates in full configuration33. [33 According to the amendment, the same rules - attendance quorum and a two-third majority of votes - also apply to the General Assembly of the Court.] A simple majority is only required when the Tribunal adjudicates in a panel of seven or three judges (for individual complaints and preliminary requests from ordinary courts). Previously, a simple majority sufficed for a full bench decision (Article 99(1) before amendment).

Handling of cases in chronological order

56. Amended Article 80(2)34 [34 See Article 1(10) new, inserting a new Article 80(2).] mandates that hearings or in-camera proceedings concerning applications for abstract constitutional review “shall be established by order in which the cases are submitted to the Court.” No exceptions are outlined, and this rule applies to all pending cases without a scheduled hearing35. [35 See Article 2 new.] This rule was absent in the previous version.

Minimum delay for hearings

57. Amended Article 87(2)36 [36 See Article 1(12) new.] dictates that hearings “may not take place earlier than after three months from the day the notification on the date of the hearing has been delivered to the participants of the proceedings, and for cases adjudicated in full bench – after six months”. The previous version stipulated a minimum 14-day notice period.

Disciplinary proceedings

58. Amended Article 28a37 [37 See Article 1(5) new.] states that “disciplinary proceedings may also be instituted further to an application from the President of the Republic of Poland or the Minister for Justice no later than three weeks after the date of receipt of the application, unless the President of the Court decides that the application is unfounded.” Additionally, the new Article 31a(1)38 [38 See Article 1(7) new.] states that “in particularly gross cases, the General Assembly shall apply to the Sejm to depose the judge of the Court.” This action by the General Assembly could be initiated by the President of the Republic or the Minister of Justice under Article 31a(2), although the Constitutional Tribunal retains its decision-making authority. The Sejm makes the final decision. Previously, the Executive branch could not initiate disciplinary proceedings, nor could the Sejm dismiss a judge. The Constitutional Tribunal had the sole power to remove a judge.

Judgment of 9 March 2016 of the Constitutional Tribunal

59. On March 9, 2016, the Constitutional Tribunal ruled that the December 22, 2015