The Polish president put under oath several Constitutional Court judges presented by the new PiS government, deposing judges assigned by the previous government. The actions have triggered an investigation by the European Commission under an early warning mechanism of serious or systemic violations of EU rule of law.

European Commission building in Brussels

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Margaritis Schinas, the EC’s spokesperson, was asked whether the EC sees cause for concern in connection with the selection of judges of the Constitutional Court in Poland.

The Commission is following the situation and is currently trying to establish the facts

– said Schinas at a press conference in Brussels.

He announced that the European Commission Vice-President Frans Timmermans, who is responsible for issues related to the rule of law and observance of the Charter of Fundamental Rights, would inform the Commission of his findings and an EC representative would be ready for a possible debate with the European Parliament on this subject, if such a discussion would be held.

Schinas also recalled that the European Commission has adopted rules of conduct for the “systemic threats to the rule of law”.

Clearly this is a systemic threat – observed the spokesman.

The rules adopted in April 2014 are an early warning mechanism of serious and systemic violations of the rule of law in the EU. They provide a three-step approach. In the first instance the Commission, which considers that the rule of law in one EU country is seriously threatened, issues an opinion and communicates a warning. The second step is to issue recommendations to the authorities of that country, and then monitoring how these recommendations are implemented.

The final step is a request to initiate the procedure under Article 7 of the EU Treaty, under which a serious violation of democratic principles can involve sanctions, including the suspension of voting rights in the EU Council. The adoption of these rules was a reaction to controversial reforms in the justice system, implemented in Hungary and Romania.

It is not excluded that the events in Poland will be the topic of discussion of the European Parliament. It has been requested by the European People’s Party, the Socialists and the Liberals. The decision in this matter is to be taken today at the Conference of Presidents of the European Parliament, which is a meeting of the EP President and the heads of the political groups. The European Parliament undertook such initiatives in the case of the changes, including constitutional, introduced in Hungary by the country’s Prime Minister Viktor Orban. The next plenary session is on 14 December in Strasbourg.

On November 25th the Polish Parliament of the new term, with the votes of PiS (Law and Justice) and Kukiz’15, found that the October election of five judges of the Constitutional Tribunal had no legal force. On December 2nd the Parliament chose new judges of the Court from five people presented by PiS. The president put four of them under oath. Last Thursday the Constitutional Court decided that the choice of three judges chosen by the previous term Parliament was constitutional, and of the other two – not. In addition, the CC found that a provision of the Act concerning the oath of the Court judges before the President, understood not as obliging him to promptly put judges under oath, was unconstitutional.

Last week, without waiting for the decision of the Constitutional Court, the President took the oath of four judges of the Constitutional Court, chosen on 25th November in place of those selected on the previous term. The last fifth judge has been put under oath today.

On December 5th, in turn, entered into force a Counstitutional Court Act amendment passed in November by PiS and Kukiz’15. It introduces the principle that the term of office of a Judge begins on the date of taking the oath before the President of the Republic, within 30 days of their election. The amendment also assumes that three months after the entry into force of the amendment the terms of Andrzej Rzepliński and Stanisław Biernat, as the President and Vice President of the Court, will be terminated.

This novella has been so far challenged by the members of PO (Civic Platform), the Ombudsman, the National Judiciary Council and the first president of the Supreme Court. The Constitutional Court is to look into the matter on Wednesday, December 9th, which is today.

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