Open Letter to the President of the European Commission regarding Poland’s “Muzzle Law”
Dear President von der Leyen,
As experts specialising in the rule of law, we wrote to you on 11 December to urge you to apply for interim measures to put an end to the persecution of Polish judges and prosecutors both by Polish authorities and by the two (unlawful) bodies they de facto control, the so-called Disciplinary Chamber and the new National Council of the Judiciary. We were gratified that you acted at that time.
But now there are new and even more pressing dangers to the integrity of the European Union presented by the Polish situation, and we urge you to take further action.
The Polish Government has enacted a “muzzle law” that bars judges from ensuring observance of the right to a fair trial and from guaranteeing rights deriving from the EU Treaties, including effective judicial protection. The law also prevents judges from controlling the validity of judicial appointments and from criticizing authorities, at the risk of being sent for disciplinary action to the very chamber of the Supreme Court which has already been found to constitute an unlawful body by the Supreme Court itself following a ruling from the European Court of Justice.
In response to this “muzzle law”, which itself must be understood as the Polish government openly refusing to obey the case law of the ECJ, the German District Court of Appeals in Karlsruhe has now refused to extradite a person sought by Polish authorities because of its assessment that Polish courts can no longer act independently given that Polish judges can now be subject at any point to arbitrary disciplinary proceedings and sanctions. This follows on the heels of Norwegian government support for the decision of its national Board of Court Administration to withdraw from planned cooperation with the Polish judiciary for the same reason.
The European Union is an integrated matrix of laws and interrelated systems, with frontline enforcement done by national courts. If the other member states can no longer rely on the independence of national courts in a particular country, mutual trust must be suspended as mutual trust is and cannot be “blind trust”. The decisions by the German judiciary and the Norwegian Court Administration are a sign that the EU’s legal system is already unravelling, and if judicial cooperation can no longer be assured, a major pillar that holds up the EU will soon collapse.
We commend the Commission for following our December letter with action on 14 January 2020 asking the European Court of Justice to suspend the functioning of the Disciplinary Chamber. But the action came late. Had interim measures been requested last October when the Commission finally announced its decision to refer Poland to the ECJ regarding its extraordinary and scandalous new disciplinary regime for judges, it might have prevented the damage that we now see.
Alarmingly but not surprisingly, the situation has continued to deteriorate further with irreparable damage now being done following the entry into force of the “muzzle law” on 14 February 2020. We urge the Commission to learn from these events. Waiting to bring infringement actions and to fail to simultaneously seek interim measures when the rule of law in a Member State is so obviously and blatantly deteriorating on an industrial scale only means that the Commission faces a far more serious and intractable problem to deal with later. The problem does not disappear by ignoring it.
This is an urgent moment for action. The Commission must quickly bring an expedited infringement action against this “muzzle law” and must at the same time consider requesting additional interim measures to prevent the “muzzle law” from being enforced by connecting these measures to the already pending infringement action with respect to Poland’s new disciplinary regime for judges. We also ask the Commission to seek to get out ahead of Polish authorities’ obvious attempts to destroy the independence of the Supreme Court which, on current trajectory, will have been crushed by early May due to the rigging of the rules on the basis of which the next First President of Poland’s Supreme Court will be selected when the term of the current incumbent expires.
Furthermore, the time has come for two infringement actions directly targeting the Constitutional Tribunal, which was unlawfully captured in December 2016 and is now being increasingly used to undermine the application of EU law in Poland, and also targeting the new National Council of the Judiciary, which was established on the back of an evident violation of the Polish Constitution and whose active complicity in destroying judicial independence has been established beyond any reasonable doubt by the European Network for Councils of the Judiciary and Poland’s Supreme Court.
As Věra Jourová and Didier Reynders themselves have both correctly pointed out, we are not dealing with “judicial reforms” but are facing “a case of carpet bombing” which aims to destroy the Polish judiciary by creating a chilling effect on Polish judges, that is, to scare them into submission by threatening them with politically tilted disciplinary action. Given the dangers involved, the Commission’s failure to promptly bring an infringement action against the “muzzle law” is irresponsible if not unforgivable in a situation where multiple judges have already been and continue to be repeatedly harassed, vilified, sanctioned and threatened with dismissals, jail time and even death for seeking to uphold the rule of law.
We are alarmed that the Commission has yet to act.
Adding to our growing sense of alarm, we were disheartened to read that you have yet to find the time to meet with the Presidents of the European Network of Councils for the Judiciary, the Network of Presidents of the Supreme Courts of the EU and the European Judges Association to discuss the worsening rule of law crisis in Poland. To make a bad situation worse, media reports are suggesting that Commission action against the “muzzle law” may have been purposefully delayed so as to be used as a bargaining chip to ease ongoing negotiations regarding the EU’s future Multiannual Financial Framework and to generate support for the Commission’s climate change legislative proposal. Adding insult to injury, it was recently suggested the Commission may not even discuss any eventual infringement action against Poland for several more weeks.
The Commission over which you preside has still a chance to avoid the mistakes made by the Barroso and Juncker Commissions, so let us repeat the key lesson of the past ten years: When it comes to the deliberate and systemic dismantling of checks and balances in a Member State’s constitutional order, time is absolutely of the essence. Autocrats always move in quickly to change the facts on the ground so as to present the EU with faits accomplis such as the unlawful appointment of individuals masquerading as judges and establishment of new bodies masquerading as courts. Unless the Commission is prepared to seek the removal of sitting “judges,” require the rehiring of suspended and fired formerly independent judges and demand the dismantling of existing “judicial” institutions, it must act before these changes become entrenched and before the Member State has the chance to complete its thorough destruction of the rule of law.
Following the belated but positive decision of your Commission in finally applying for interim measures in respect of the “Disciplinary Chamber”, we had assumed the lesson has been learned that it is important to stop unlawful changes before they occur. It would seem we were wrong. We therefore urge you to promptly initiate an expedited infringement action whose scope ought to be as wide as possible so as to also prevent the forthcoming planned capture of both Poland’s Supreme Court and Supreme Administrative Court, for instance, by targeting the new rules which have essentially rigged the election of the next President of the Supreme Court.
The current procrastination is akin to dereliction of duty.
We are indeed talking about the first EU Member State to be simultaneously subject to both the EU’s exceptional monitoring process following the Commission’s activation of the Article 7 procedure and to the Council of Europe’s Parliamentary Assembly’s special monitoring procedure. Both were launched due to the relentless destruction of judicial independence we have seen since the end of 2015. The process of judicial destruction has been going on for more than four years now and yet the Commission appears not to have fully grasped how close Poland is to politically capturing its entire judiciary and ending the rule of law in a Member State of the EU. It is similarly difficult to understand the ongoing delay to bring an infringement action against the “muzzle law” considering the already existing comprehensive legal assessments of this law, whose only parallels can be found in authoritarian states. One may for instance refer to the legal opinions produced by Polish Commissioner for Human Rights, the OSCE-ODIHR or the Venice Commission.
The Commission under your Presidency must develop a sense of urgency in this broader and unprecedented context in which, according to the Commission itself, the end result of the changes pushed by Poland’s ruling party “is that the executive and legislative powers now can interfere throughout the entire structure and output of the justice system.”
This is not merely a clear and present danger as far as the Polish legal order is concerned but represents an existential threat to the functioning of the EU’s interconnected legal system as a whole. To borrow an analogy from computer programming, the rule of law may be considered the EU’s legal order’s “operating system”. What is happening in Poland and also in Hungary constitutes a system threat which will sooner or later corrupt and cause the failure of the EU’s entire system network.
If the Commission does not act, then Member States (and other) judiciaries will have to act to defend themselves by withdrawing judicial cooperation with the Polish judiciary and ultimately, failing to recognise and enforce the decisions of Polish courts. To prevent further unravelling of the EU’s core legal system, it is imperative for the Commission to act without delay.
Yours faithfully,
Professor Laurent Pech, Middlesex University London
Professor Kim Lane Scheppele, Princeton University
Professor Wojciech Sadurski, University of Sydney, University of Warsaw
Professor Alberto Alemanno, HEC Paris
Professor Leszek Balcerowicz, Warsaw School of Economics
Professor Petra Bárd, Central European University
Professor Gráinne de Búrca, New York University
Professor Paul Craig, University of Oxford
Dr Tom Gerald Daly, Melbourne School of Government
Dr Joelle Grogan, Middlesex University London
Professor Gábor Halmai, European University Institute
Professor R. Daniel Kelemen, Rutgers University
Professor Dimitry Kochenov, Groningen University
Professor Tomasz Tadeusz Koncewicz, University of Gdańsk
Dr. Kriszta Kovács, WZB Berlin Social Science Center
Professor John Morijn, Groningen University
Professor Jan-Werner Müller, Princeton University
Professor Vlad Perju, Boston College
Professor Sébastien Platon, Bordeaux University
To co-sign this open letter, please leave a comment with your name and affiliation!
Max Steinbeis, Verfassungsblog
I will co-sign this open letter.
Dr. Andrew Watt, Macroeconomic Policy Institute, Hans-Böckler Foundation
I support this letter, action is needed.
My short comment
I fully agree with the contents of this letter, and strongly support it
I strongly support this letter.Please add my name to the signatories:
Dr Jacek Kucharczyk, President, Institute of Public Affairs, Poland.
I strongly support this letter!
Please help to polish judges to be not independent from politicians.
I strongly support this letter.Please add my name to the signatories:
Signed!
Signed
I fully support the contents of this letter
I fully support the contents of this letter.
I agree with this letter
I fully support this letter
I fully support this letter.
I fully support this letter!!!
Dr Jacob Thaisen, University of Oslo
Action. Not words. ASAP
I fully support and sign the open letter.
István Hegedűs
Alice Stollmeyer, Defending Democracy, Brussels
I fully support the Letter.
I fully support the letter.
I fully support the letter and urge Commission to duly perform their duties and protect the rule of law in Europe. Lawless Europe is of no use to us.
I fully support this letter.
I fully support the letter, Francesco Costamagna, University of Turin
I fully support this effort. The European Commission ought finally perform their duty and protect the rule of law in the EU
I strongly support this letter.
Quite right: the Commission has been acting too slowly for at least five years.
I agree with this letter.
I support this letter.
I fully support this letter.
I fully support this letter
Maciej Kozlowski
Former ambassador of Poland to Israel. Currently lecturer Collegium Civitas Warsaw
Maciej Kozlowski
Former ambassador of Poland to Israel. Currently lecturer Collegium Civitas Warsaw
I fuloly support the letter and I signe it
I fully support this letter!
I fully support the letter.
I fully support this letter!
I fully support this letter!
I support the letter.
I fully support this motion
Y fully support this letter
I agree with this letter
I fully support this.
Dr. Rune Linding
Humboldt Universität zu Berlin
Excellent argumentation addressing a pressing and urgent matter. I fully support thuis letter!
I fully support the letter and urge Commission to duly perform their duties and protect the rule of law in Hungary also as well as in whoole Europe.
Hungarian Europe Society
I fully support this letter.
I fully suport this!
Grzegorz Borys, Komitet Obrony Demokracji
I fully agree with the contents of this letter.
Help us!
I strongly support this letter.Please add my name to the signatories.
I fully support the letter and strongly support the action to be taken by European Commission and TSUE against the government of PiS. Poland is not PiS. We want to be the part of UE.
I also strongly support the letter
Mikael Rask Madsen
ICourts, Copenhagen
I support this letter. An ordinary citizen of Poland and EU.
Marcin Matczak, University of Warsaw
I fully support the letter and strongly support the action to be taken by European Commission and TSUE.
Please help to polish judges to be not independent from politicians. I fully support this letter.
I fully support the letter and urge the Commission to act without any further delay.
I fully support the contents of this letter
I strongly support this letter
I fully support this letter
My full support for this necessary letter.
I co-sign this open letter.
I fully support this letter
Retired professor, Warsaw School of Economics
I fully support this letter
I fully support this letter.
I support this letter.Please add my name to the signatories
I support this letter.Please add my name to the signatories.
An independent judiciary is one of the key foundations of liberty and true democracy. I express my full support for this letter.
I support this letter.
I support this letter.Please add my name to the signatories.
I am a former policeman and I’ve been in the first social group affected by the repression of the PiS (I am suprimarily of the part of the acquired pension rights)I care about fair and objective courts, that’s why,I fully support the letter and strongly support the action to be taken by European Commission and TSUE against the government of PiS. Poland is not PiS. We want to be the part of UE.
Indifference is not an option.
I strongly support this letter.
I support this letter: this is an urgent moment for action!
The Commission must quickly bring an expedited infringement action against this “muzzle law”!
I fully support this letter.Please add my name to the signatories.
I strongly support this letter.
I do agree with this open letter and fully support its points.
I agree with the line of reasoning.
Artur Kozłowski, Wroclaw University
I support this letter.
Piotr Zagórski, Universidad Autónoma de Madrid
I support this very much.Help us to regain fair Poland.With respect and hope.
I strongly support this letter.Please add my name to the signatories:
Dr Michał Lewoc
Judge
I support this letter.
I support this letter.
Tadeusz Kowalczyk
Judge
I support this letter
I support this letter!
Mariusz Malinowski
Film director
I fully support the content of the letter.
I support the letter to the Commission
Supporting, unaffiliated.
I fully support the content of the letter, but one sentence in the text stands out for me: “The current procrastination is akin to dereliction of duty.”. I do hope that, in spite of all appearences, the Commission has not abandoned those Polish citizens who wanted Poland to become the member of EU and who still believe in European institutions.
I also strongly support the letter.
I fully support this letter
I fully support this letter.
I fully and strongly support this letter.
The Constitutional Tribunal has been unlawfully captured by the previous majority (now opposition), just put one fact for the thesis, instaed of bla bla bla.
I fully support this letter and wish to join the voices urging for immediate action.
Pablo Castillo-Ortiz, University of Sheffield
Benedikt Pirker, University of Fribourg
I fully support this letter. This is not only about Poland, this is about Europe.
Frau von der Leyen,
es ist die höchste Zeit aktiv zu werden. Wir, demokratische Bürgerinnen und Bürger Polens warten auf Ihr Engagement, um die Demokratie in Polen zu verteidigen. Das ist Ihre Pflicht. Zögern Sie nicht, tun Sie, was zu tun ist.
I fully agree with the content of this letter and strongly support it
Support the letter
I support this letter
I support this letter.
Agnieszka Niklas-Bibik,
Judge
prof. Monika Całkiewicz, Kozminski University
I support this letter.
I support this letter, strongly
I support this letter.
I fully support the content of this important contribution to defend the liberal democray of all EU member states.
I fully support the letter.
I fully support this letter
Patrick Wodecki, University of Warsaw
I fully support this letter
I strongly support this letter.Please add my name to the signatories.
Eugeniusz Smolar – Center for International Relations, Warsaw.
I support this letter.
The only way to stop breaking democracy in Poland,my country,is to ban “muzzle law”.
Therefore please add my signature as I fully support the opinion expressed in the letter
As an entrepreneur, I strongly support the initiative presented. The independence of the judiciary in Poland and other European Union countries is of the utmost importance.
I fully support this letter
I strongly support.
I strongly support this letter!
Dorota Buchwald, Polish Theatre Encyclopedia
I support this letter. Please add my name to the signatories.
Pls, speed up to support us to delete the Muzzle Law, otherwise it might spread across Europe.
You have my support!
My also
I fully support the letter!
I strongly support
I support this letter
Let us hope that it helps!
I fully support
I do support and sign this letter
I do support and sign this letter
I fully support that letter!
I fully and strongly support this letter!
I fully support the letter.
I support this letter with all my will.
I suport this letter with all my mind.
I support this letter
I strongly support this letter.
I support and sign this letter.
Christoph Flügge
former Judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), Den Haag
former Justiz-Staatssekretär, Berlin
I fully support and sign this letter.
Anna Czaplinska, University of Lodz
J support this letter
Full support for this letter.
This petition to the European Commission has the full support of Pulse of Europe-Canarias.
Long live an independent judiciary, the rule of law. Long live Europe.
I support the contents of this letter.