Council of the
Brussels, 27 November 2018
No. prev. doc.:
16007/17; 10354/18; 11458/18; 12060/18
Rule of Law in Poland / Article 7(1) TEU Reasoned Proposal -
Hearing of Poland on 11 December 2018
On 20 December 2017, the Commission adopted a reasoned proposal with regard to the
rule of law situation in Poland which it submitted to the Council, thus triggering the
mechanism set out in Article 7(1) TEU. This was preceded by a dialogue between the
Commission and Poland since 13 January 2016 which continued in parallel to the
triggering of the Article 7 procedure.
The reasoned proposal (doc. 16007/17) contains a detailed explanatory memorandum as
well as a proposal for a Council decision under which the Council would (i) determine
that there is a clear risk of a serious breach by Poland of the rule of law and (ii) make
recommendations for Poland to bring its judicial reform into line with rule of law
On 27 February 2018, the Commission presented its reasoned proposal to the Council
(General Affairs), and informed on the state of play and on the on-going dialogue with
Thereafter, the Commission informed the Council on the situation in Poland and on the
ongoing dialogue on 20 March, 17 April and 14 May 2018. During the information item
on 14 May 2018, the Commission presented its assessment that, despite some progress,
key concerns, identified in the Commission’s reasoned proposal, remained unaddressed.
At Coreper on 7 June 2018, when discussing the provisional agenda for the meeting of
the Council (General Affairs) on 26 June 2018, the Commission requested that a
hearing, which constitutes a necessary step of the process under Article 7(1) TEU1
place at that meeting. Following this request, Poland was heard by the Council (General
Affairs) on 26 June 2018 in accordance with Article 7(1) TEU. The modalities and the
substantive scope of this hearing (as set out in 10354/18) were endorsed by Coreper on
20 June 2018.
On 4 July 2018, a majority of delegations requested hearing Poland also during the next
meeting of the General Affairs Council on 18 September 2018. The updated modalities
and the substantive scope of the second hearing (as set out in 11458/18) were prepared
by Coreper on 5 and 12 September 2018. On 18 September 2018, Poland was heard by
the Council (General Affairs) in accordance with Article 7(1) TEU.
On 16 October and 12 November, the Council (General Affairs) took note of the state of
play regarding the rule of law situation in Poland. The Commission requested that
another hearing take place at the next meeting of the Council (General Affairs) on 11
Article 7(1) TEU provides that "before making such a determination, the Council shall hear
the Member State in question and may address recommendations to it, acting in accordance
with the same procedure
The hearing foreseen in Article 7 (1) TEU is, essentially, a peer review exercise, which
will enable Council Members to have a more in-depth exchange with Poland on the key
concerns identified. Poland will have the possibility to adapt the format of its delegation
to the specificity of the meeting and will be offered sufficient, up to eight, seats (in a
3 + 2 + 3 format).
It is proposed that the substantive scope of the hearing would cover the topics set out in
the Annex, which correspond to those on which the Commission regularly informed the
Council and on which the Reasoned Proposal of the Commission from 20 December
2017 is based.
10. At the outset of the hearing, the Commission will have the possibility to provide a latest
update on the key areas of concern covered by this hearing.
11. Poland will be given the opportunity to make a statement with regard to the said areas.
12. Subsequently, delegations will be invited to put up to two questions each to Poland,
limited to the substantive scope indicated above. One question should not exceed two
minutes. Poland will be given the opportunity to respond after each question without
time limitation. If additional clarification is needed, delegations can ask follow-up
questions, while respecting the same time limit of two minutes. Where necessary,
Poland will have the possibility to further elaborate its answers in writing.
13. At the end, the Commission will be given the opportunity to make observations on the
facts provided by Poland, and Poland will be given the opportunity to present its own
observations and remarks.
14. The Presidency will then present procedural conclusions. No assessment on the
substance of the issues will be made at this stage.
15. The Council could decide to continue the hearing at a next meeting of the General
Minutes of the hearing will reflect the procedural conclusions. In addition, a formal
report will be made by the GSC.
LIST OF TOPICS FOR THE HEARING
: retirement regime of current Supreme Court judges, including the First
President, and regime for prolongation of judicial mandates.
National Council for the Judiciary
: election regime of the judges-members of the
National Council, premature termination of the mandates of the former judges-members.
Ordinary Court Judges
: retirement regime of current Ordinary Court judges, regime for
prolongation of judicial mandate and situation of Ordinary Court judges already affected by
the new retirement regime.
, including the new autonomous disciplinary chamber in the Supreme
Extraordinary appeal procedure
: situations of Court Presidents already affected by the dismissal and
: publication of the 2016 judgments and the recomposition of the
Tribunal, including the procedure to appoint a new president