Ref. Ares(2024)1934674 - 13/03/2024
Warsaw, 18 February 2024
Rule of Law in Poland
Action Plan
Polish Government acknowledges systemic problems with the rule of law and considers
restoration of the values enshrined in Article 2 TEU as a priority. This Action Plan presents the
steps that will be taken to resolve issues identified in the COM's reasoned proposal in
accordance with Article 7(1) TEU, judgments of the EU Court of Justice and the European Court
of Human Rights. Polish Government is determined to implement this Action Plan without any
delay. However, the complexity and the scope of issues to be resolved implies that all actions
must be taken transparently and involve public consultations as well as a dialogue with
representatives of judiciary and civil society. All the measures announced below will be
designed and implemented in full respect of the principle of the rule of law, as enshrined in
Article 2 TEU.
Since 13 December 2023, the Polish Government has taken number of non-legislative and
practical steps to secure that Polish judges are not subject of any pressure for the use of the EU
law and for making preliminary references to the EU Court of Justice. It is the primary interest
of the Polish Government to create conditions, where judicial independence, as protected by
Article 19 TEU and the Polish Constitution, may be fully secured.
I. National Council of the Judiciary
According to the case-law of the CJEU and ECHR, as well as reasoned proposal of the COM,
politicians exert strong influence on election of members of the National Judicial Council (NCJ).
Consequently, since 2018 NCJ is considered as a politicized body, which undermines
independence of judiciary.
In order to remedy this urgent problem, Minister of Justice presented a draft law amending
rules for the selection of 15 judicial members of the NCJ (out of total 25 members). The draft
law introduces the rule that the judicial members of the NCJ will be elected by peers (other
judges) in universal and secret voting, without any influence of politicians. This amendment
will eliminate the problems addressed in the CJEU and the ECHR case-law, and in point 4.2 of
the reasoned proposal of the COM.
On 20 February 2024 the Council of Ministers will adopt the draft law. In long-term perspective
of the overall reform of the NCJ is foreseen, especially the status of judicial nominations made
upon recommendation of the NCJ in years 2018-2023.
II. Constitutional Court
Composition of the Constitutional Court and status of its President are challenged in the
reasoned proposal of the COM, in the ongoing infringement procedure before the CJEU, and
in the case-law of ECHR. The origin of the problem is the election of three judges of the
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Constitutional Court by the Sejm of VIII term, while those positions have already been filled by
Sejm of VII term.
On 31 January 2024 Poland submitted to the CJEU its position in which we acknowledged
allegations regarding the incorrect composition of the Constitutional Court and the
irregularities in the selection of its President.
In order to eliminate those irregularities Poland plans to:
adopt resolution of the Sejm (lower chamber of the Parliament) on the status of
the Constitutional Court,
introduce changes to the Law on the Constitutional Court.
Realization of those plans will eliminate problems identified in the point 3.1 and 3.3 of the
COM reasoned proposal, as well as in the CJEU case C-448/23 and in the ECHR case-law.
III. Supreme Court
According to the reasoned proposal of the COM, as well as CJEU and ECHR case-law, the
Disciplinary Chamber and Chamber of Extraordinary Control and Public Affairs of the Supreme
Court are not independent courts established by law. COM has also expressed doubts as
regards institution of the extraordinary appeal. This legal institution has also been questioned
by the ECHR pilot judgments in case of
Wałęsa v. Poland.
Polish Government is fully aware of the necessity to address the problems raised in the
reasoned proposal and case law of the Courts.
The Disciplinary Chamber of the Supreme Court has been already abolished by the Act of 9
June 2022 and replaced by the Professional Liability Chamber.
In order to strengthen the independence of the Supreme Court Poland plans to:
- introduce changes to the Act on Supreme Court, including the Chamber of
Extraordinary Control and Public Affairs;
- eliminate from the legal system institution of the extraordinary appeal.
Realization of those plans will eliminate problems identified in the point 4.1.3 and 4.1.4 of the
COM reasoned proposal, as well as in the CJEU and ECHR case-law.
IV. Common courts
According to numerous CJEU rulings (especially judgment of 5 June 2023, C-204/21), the Law
on the System of Common Courts contains numerous provisions that undermines judicial
independence and effective judicial protection. Given the principle of primacy of EU law those
provisions, i.a. the “muzzle-law”, are no longer applicable by the courts and the judges are not
facing any risk of disciplinary liability for applying EU law. Consequently, there are no legal
obstacles for judges to ensure the right to independent, impartial court established by law as
set forth in CJEU case-law. It also includes examination of the status of other judges.
In long-term perspective, the Ministry of Justice plans to present draft laws with rules that
strengthen guaranties of independence of the courts and address secondment of judges,
judicial self-governance, appointment of presidents of courts and operation of disciplinary
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commissioners for judges. Those reforms will comprehensively regulate system, organization
and functioning of common courts. They will also cover working conditions of the non-judicial
employees of courts and prosecutor's offices in terms of i.a. of remuneration.
V. Prosecution service
The reasoned proposal of the COM addresses union of the Prosecutor General and the
Minister of Justice (point 4.4.2). The status of the prosecutor service in Poland was also subject
of comprehensive legal opinion of the Venice Commission (opinion of 11 December 2017, CDL-
AD(2017)028).
To resolve this issue, the government plans to make a separation of the Prosecutor General
and the Minister of Justice. Relevant basic conditions of the planned law have been already
presented by the Ministry of Justice. Please note that Poland has also made an official
notification to the European Commission to join the European Public Prosecution Office. This
action aims to make the operation of the Polish prosecution service more transparent and
independent.
VI. Cases before CJEU and ECHR
Judicial “reforms” introduced by the previous government resulted in surge of cases before
the CJEU and the ECHR. The current Polish Government endorses negative assessment of
those “reforms” provided in the case-law of those courts.
In consequence, the Polish Government amended its positions in the cases before the CJEU
and ECHR by admitting the irregularities. It committed to ensure that laws will comply with EU
laws and ECHR jurisprudence. Moreover, the Polish Government aims to fully compensate
victims of those “reforms”, and to implement relevant individual and general measures.
Given the number of judgments of the ECHR and vast number of the ongoing cases Polish
Government plans to create a new institutional system for the enforcement of judgments of
the ECHR, as a response to Recommendations of the Committee of Ministers of the ECHR,
resolutions of the Parliamentary Assembly of the ECHR.
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