Insight: “Judges’ Associations in Europe pushed to the edge: proposal to expel Polish Judicial Council from the European Network of Councils for the Judiciary” by Anjum Shabbir
European Network of Councils for the Judiciary: Proposed expulsion due to lack of independence of Polish judiciary and effect on the rule of law
The European Network of Councils for the Judiciary (ENCJ) is composed of national institutions of Member States of the European Union which are independent of the executive and legislature, or which are autonomous, and which ensure the final responsibility for the support of the judiciary in the independent delivery of justice.
The ENCJ’s Executive Board’s Statement explains that having ‘expressed repeatedly its serious concerns about developments regarding the independence of the judiciary in Poland’ by sending several statements in January, July, October, and December 2017, and again in September 2018, it noted that ‘no steps were taken to allay the concerns expressed or to redress the problem identified’.
On 17 September 2018, the ENCJ suspended the current Polish Council for the Judiciary from membership of the ENCJ because it considered that it did not meet the condition for membership that a Judicial Council must be independent from the executive branch of the relevant Member State.
Now, one could say it has been pushed to the edge: the ENCJ has proposed the expulsion of the Polish Judicial Council in a draft Position Paper that was sent to the latter on 22 April 2020, along with a letter requesting a response to that Position Paper within a month (in line with Article 6(4) of its own Statutes).
Once that response has been received, the ENCJ’s Board will finalise its Position Paper, and decide if and when to go ahead with the expulsion at a General Assembly meeting.
European Association of Judges: public expression of support against infringement of rule of law and violation of EU Treaties
The European Association of Judges (EAJ) Board, made up of 44 national associations, the largest judges’ association in Europe, has publicly expressed its support for the ENCJ in the measures it is taking, with President José Igreja Matos publishing a letter of 4 May 2020 to that effect.
It too, can be described as having been pushed to the edge, having ‘repeatedly condemned’ the ‘reforms’ of the judiciary made by the Polish Government, and its infringement of basic principles of the rule of law, and violations of the EU Treaties. It published an open letter in July 2017, passed resolutions in May 2018, October 2018, May 2019 and September 2019, and issued statements from its President in November 2019 and February 2020 (read the Statement of 5 February 2020 here).
International and European actors: Protection for rule of law and independence of judiciary
The above two judges’ groupings are not alone in such expressions of condemnation: they are joined by other such judges’ associations and networks, including Poland’s own association of judges – Iustitua, the International Association of Judges, networks of the presidents of Supreme Courts in Europe, association of the Councils of States and Supreme Administrative Jurisdictions of the EU, the European Bar Association, the Association of Judges of Ireland, and individual judges from various EU Member States and non-EU countries including those who took part in a protest in January 2020 (the ‘Thousand Scarlet Robes’ March). On 21 February 2020, the Bar Associations in Vienna also issued a resolution during the European Presidents’ Conference, urging the EU Institutions and national authorities to protect the independence of the judiciary and administration of justice in Europe and to maintain the strict autonomy and independence of members of the legal professions, especially with regard to disciplinary proceedings, and for the ability to request interim measures from the Court of Justice of the European Union to be protected.
International and European organisations with greater legal powers to address the situation have not by any means been silent, such as the United Nations (ODIHR), and the Council of Europe (Greco, the Venice Commission and the Parliamentary Assembly), which is monitoring Poland for ‘severely’ damaging ‘the independence of the judiciary and rule of law’.
European Union Institutions: legal actions to protect rule of law and independence of judges (Article 2 and 19 TEU)
Specifically in the domain of the European Union, that also includes various EU Institutions: the Council of the European Union, the European Parliament, the Court of Justice of the European Union (for example see its rulings in C-619/18, C-192/18, C-791/19, C-216/18, joined cases C-585/18, C-624/18 and C-625/18 and C-791/19 R), and the European Commission (which has commenced various infringement actions under Article 258 TFEU, most recently on 29 April 2020). Indeed, the proposed expulsion can be seen as the culmination of condemnations from judges, their associations and networks, which mirror the legal actions emanating from the EU to safeguard fundamental and common values underpinning the European Union: the rule of law, enshrined in Article 2 of the Treaty on European Union; and the independence of the judiciary.
In order to drive home the severity of the rule of law crisis, and contextualise the actions of a flurry of judges all across Europe and the world in response to this situation, read EU Law Live’s Editorial Comment on the Rule of Law crisis, and an analysis of the legal claims that are ping-ponging between Polish courts and the Court of Justice of the European Union by Piotr Bogdanowicz and Maciej Taborowski in our second Weekend Edition, which includes the main rulings delivered up to the end of January 2020.
What are the consequences of expulsion?
So far the ENCJ has only proposed expulsion from its European Union network of judges, but given the above lack of action on the side of Poland, expulsion does not seem altogether unlikely. While some may consider whether this is relevant, as it would not have legal consequences, and there is no concrete sanction, or legally binding declaration of unlawful behaviour, this is still legally significant, because the ENCJ’s actions and EAJ’s support demonstrate the gravity of the situation. Indeed, the EAJ has been invited by the European Commission to take part in its Annual Rule of Law Report.
Their actions are far from futile when viewed in the wider legal and factual back-and-forth in one of the most serious and fundamental issues affecting the European Union today: it is at a level equivalent to the COVID-19 pandemic, Brexit, and Europe’s serious migration challenges. The ENCJ’s and EAJ’s actions should be seen as reflective of, and not be a step divorced from, the other actions taken by several other European and international actors.
Anjum Shabbir is an Assistant Editor at EU Law Live