Understanding the Rule of Law in the European Union

EJTN Training on State Liability 20-21 September 2022 Liability of the Member States upon art. 258 TFEU. The requirement of the rule of law as leading condition in the new EU mechanism With financial support from the Justice Programme of the European Union

Introduction Rule of law - The concept Aristotelian origin Under the rule of law, governmental powers are limited by law and may be exercised only on the basis of law. An independent judiciary is indispensable to guaranteeing this state of affairs, and appropriate procedures, including legal remedies, must be in place to guarantee that individuals can protect their rights and trigger judicial review of governmental action. 2

Introduction Rule of law - The concept (2) 1. It is the idea of government limited by law (principle of legality) whereby officials must operate within the framework of existing law (including the principle of 'lawful administration').Any change of law must follow prescribed procedures. Limited government is considered a crucial element to reducing the arbitrariness of officials' decisions, thereby drawing the line between actual 'rule of law' and mere 'rule by law'. 2. Formal legality (or 'internal morality' of the law) requires that laws must be laid down in advance (no retroactive laws), they must be general (applicable to everyone in a similar situation), and they must be publicly available (promulgated). Some authors also add the principle of proportionality and the requirement for a hierarchical structure within legal systems, whereby inferior rules must conform to superior ones, especially constitutional ones (constitutionalism). 3

Introduction Rule of Law - The concept (3) 3. A third element is the rule of law requirement for access to an independent and unbiased judiciary enforcing these principles (legal remedies), with appropriate procedures in place allowing citizens and businesses to present their view and argue their position 4

Introduction Rule of Law - The concept (4) Speech that Walter Hallstein gave in March 1962 at the University of Padua on the European Economic Community as a Community of law, in which he stated: This Community was not created by military power or political pressure, but owes its existence to a constitutive legal act. It also lives in accordance with fixed rules of law and its institutions are subject to judicial review. In place of power and its manipulation, the balance of powers, the striving for hegemony and the play of alliances we have for the first time the rule of law. The European Economic Community is a community of law . . . , because it serves to realize the idea of law. 5

Introduction Rule of Law - The concept (5) Speech of Walter Hallstein: The founding treaty, which may not be terminated, forms a kind of a Constitution for the Community which contains rules on the establishment, composition, tasks, competences and interaction of the institutions of the Community as well as their relations with the Member States and the Community citizens . . . . But Community law not only grants powers to the Commission and the Council; at the same time, it provides for the restriction and limitation of these powers. The observance of these limits is ensured by the judicial review, which is entrusted to the European Court of Justice. The Court reviews the legality of acts of the Council and the Commission and provides legal protection in the field of Community law not only for Member States but also for Community citizens . 6

Rule of law the principles The primary law The principles of the rule of law, stemming from the common traditions of the Member States and adopted as general principles of EU law in the European Court of Justice (ECJ) case law, have been, to a great extent, codified in primary law in particular the TEU and the Charter of Fundamental Rights (CFR). In the TEU's preamble, the Member States confirm their 'attachment to the principles of the rule of law'. This idea is reiterated in Article 2 TEU which indicates that the EU 'is founded on rule of law', and that these 'values are common to the Member States . Elements of the rule of law are also codified in the Charter. In particular, Article 41 provides for the right to good administration, and Article 47 provides for the right to an effective remedy and a fair trial 7

Rule of law the principles The case law The principles of the rule of law have also been enshrined in the case law of the European Court of Justice (ECJ). The EU's very design is based on a shared responsibility for upholding and enforcing EU law, which is the joint task of the ECJ and national courts. The rule of law within the Member States, at least in areas covered by EU law, is therefore indispensable for the proper functioning of the Union and its legal system. 8

Rule of law the principles The case law (2) Case C-64/16 Associa o Sindical dos Ju zes Portugueses ['ASJP'], para. 31: The EU is a union based on the rule of law in which individual parties have the right to challenge before the courts the legality of any decision or other national measure relating to the application to them of an EU act . Respect for the rule of law as a value is the basis for common trust between the national judiciaries within the EU (para. 30). (Case C-72/15 Rosneft, para. 73). This possibility for individuals to seek effective judicial review is 'of the essence of the rule of law' in the Union 9

Rule of law - the protection mechanisms Soft mechanisms Legal mechanisms Soft mechanisms 1. Special cooperation and verification mechanism' (included in the Act of Accession for Bulgaria and Romania) > Non binding recommendations 2. The Commission's rule of law framework > Non binding recommendations 3. The Commission s rule of law mechanism 4. The Council's annual dialogues on the rule of law 10

Rule of law - the protection mechanisms Soft mechanisms Special cooperation and verification mechanism: Temporary mechanism, set up in 2007, on the assumption that the two then-new Member States 'still had progress to make in the fields of judicial reform, corruption and (for Bulgaria) organised crime'. The mechanism is still in place, and the Commission regularly publishes progress reports. The mechanism is 'soft', as no sanctions are provided for in case of lack of progress. In October 2019, the Commission indicated that Bulgaria had now met all its commitments, however, the final decision on ending the mechanism will be for the current Commission 11

Rule of law - the protection mechanisms Soft mechanisms The Commission's rule of law framework (1): In 2014, the Commission introduced a 'rule of framework' providing a space for structured dialogue with MS suspected of rule of law breaches. The framework encompasses 3 stages and does not, as such, give rise to binding legal effects: Assessment Recommendations Follow-up by the Commission. . 12

Rule of law - the protection mechanisms Soft mechanisms The Commission's rule of law framework (2): The framework was activated for the first time with regard to Poland in 2016. Under the rule of law framework, the Commission engaged in an exchange of views with the Polish government and issued 4 recommendations: In the Commission's view, some Polish Constitutional Court (PCC) judges had been unlawfully elected and the PCC's independence and legitimacy had allegedly been compromised by the parliament and government. The Commission also criticized the reform of the Supreme Court, the National Council of the Judiciary (NCJ), and of the ordinary courts, and demanded that they be reversed. 13

Rule of law - the protection mechanisms Soft mechanisms The Commission's rule of law framework (3): Communication on 'Further strengthening the Rule of Law within the Union (2019): Under the rule of law, all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts. The rule of law includes, among others, principles such as legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibiting the arbitrary exercise of executive power; effective judicial protection by independent and impartial courts, effective judicial review including respect for fundamental rights; separation of powers; and equality before the law . 14

Rule of law - the protection mechanisms Soft mechanisms The Commission's rule of law framework (4): In its July 2019 rule of law communication, the Commission put forward the idea of a 'rule of law review cycle'. It proposed to promote a 'rule of law culture' within the EU through various measures, and to prevent rule of law backsliding in Member States by deepening its monitoring of Member States' compliance with the rule of law through a 'rule of law review cycle'. The cycle would cover all Member States and culminate in the adoption of an annual rule of law report that would summarise the situation in Member States as regards the rule of law. 15

Rule of law - the protection mechanisms Soft mechanisms The Commission's rule of law mechanism Preventive role: The European Rule of Law Mechanism provides a process for an annual dialogue between the Commission, the Council and the European Parliament together with Member States as well as national parliaments, civil society and other stakeholders on the rule of law. The Rule of Law Report is the foundation of this new process. A core objective of the European Rule of Law Mechanism is to stimulate inter-institutional cooperation and encourage all EU institutions to contribute in accordance with their respective institutional roles.. 16

Rule of law - the protection mechanisms Soft mechanisms The Commission's rule of law mechanism (2) The Rule of Law Report and the preparatory work with Member States takes place annually as part of the Mechanism, and will serve as a basis for discussions in the EU, preventing problems from emerging or deepening further. Identifying challenges as soon as possible and with mutual support from the Commission, other Member States, and stakeholders including the Council of Europe and the Venice Commission, could help Member States in finding solutions to safeguard and protect the rule of law. The Report monitors significant developments, both positive and negative, relating to the rule of law in Member States. 3 reports already published: 2020-2021-2022 17

Rule of law - the protection mechanisms Soft mechanisms The Commission's rule of law mechanism (3) The European rule of law mechanism is a response to the criticism that the European institutions are using the rule of law for political purposes. This new annual cycle, which opens with country reports and continues with their examination in the Council, aims to ensure impartiality of assessments through criteria applied to all countries. The reports cover four areas: the justice system the anti-corruption framework media pluralism institutional checks and balances. 18

Rule of law - the protection mechanisms Soft mechanisms The Commission's rule of law mechanism (4) This is a step forward as the cycle institutionalises these four criteria for defining the rule of law. According to the European Commission: "The approach is based on close dialogue with national authorities and stakeholders, bringing transparency and covering all Member States on an objective and impartial basis", hoping to prevent "rule of law problems from emerging or deepening". 19

Rule of law - the protection mechanisms Soft mechanisms The Council's annual dialogues on the rule of law In December 2014, the Council decided to establish its own annual peer-to-peer dialogues on the rule of law. In their conclusions, the Council and the Member States agreed to set up an annual dialogue in the General Affairs Council, to be prepared by COREPER (the Committee of Permanent Representatives to the EU of the governments of the Member States). The dialogue is to be based on the principles of objectivity, non-discrimination and equal treatment of all Member States, conducted on a non- partisan and evidence-based approach and without prejudice to the principle of conferred competences, as well as in respect of the national identities of Member States. 20

Rule of law - the protection mechanisms Legal mechanisms 1. The breach of values procedure can be triggered, possibly leading to the suspension of a Member State's membership rights (art. 7 TEU) 2. Infringement proceedings can be brought by the Commission (art. 258 TFEU) if the alleged breach could also amount to the violation of a specific rule of EU law. 3. National courts from a Member State in which the rule of law is breached may refer preliminary questions to the ECJ, seeking guidance on the interpretation of EU law with a view to assessing the compatibility of national legislation. 21

Rule of law - the protection mechanisms Legal mechanisms Cutting funding: In May 2018, the Commission put forward a proposal for a regulation on the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States, based on Article 322(1)(a) TFEU. The proposal defines generalised deficiencies as regards the rule of law as including, in particular, endangering judicial independence, failing to prevent, correct and impose sanctions for arbitrary or unlawful public authority decisions, and limiting the availability and effectiveness of legal remedies. If the Commission finds generalised deficiencies in one of the Member States as regards the rule of law as described above, it may resort to protective measures, including the suspension or reduction of payments from the EU budget and the prohibition to enter into new legal commitments. 22

Rule of law - the protection mechanisms Legal mechanisms Cutting funding: The Regulation on a general regime of conditionality for the protection of the Union budget allows for the reduction or suspension of EU funds to Member States where breaches of the rule of law no longer guarantee the proper use of EU taxpayers' money. Adopted in December 2020 after a compromise with Warsaw and Budapest, which were threatening to block the EU's multi-annual budget, the mechanism came into force in January 2021. The Court of Justice, which was referred to by Hungary and Poland in March, has ruled positively on its conformity with the treaties (C-156/21). In September 2022, the Commission proposed the suspension of 65% of the commitments for 3 operational programmes under cohesion policy for Hungary. 23

Rule of law - the protection mechanisms Legal mechanisms Breach of values procedure (art. 7 TEU) The Article 7 TEU procedure is concerned, strictly speaking, not only with the rule of law, but also breaches of EU values. In fact, there are two distinct procedures the preventive mechanism (Article 7(1) TEU), and the sanctions mechanism (Article 7(2)-(3) TEU). Both mechanisms are independent of each other, meaning that the sanctions mechanism can be triggered without going through the preventive mechanism, and the preventive mechanism does not necessarily entail any sanctions 24

Rule of law - the protection mechanisms Legal mechanisms Breach of values procedure (art. 7 TEU) (2) Preventive mechanism (Article 7(1) TEU) > the Council may determine that there is a clear risk of a serious breach of EU values by a Member State. The procedure can be initiated by the Parliament, Commission or one third (1/3) of EU Member States. The Council issues a decision by a majority of four fifths (4/5) of its members after having received Parliament's consent which, in turn, requires a two-thirds (2/3) majority of the votes cast, representing an absolute majority of all Members (Article 354(4) TFEU). The Member State incriminated may not vote in the Council. 25

Rule of law - the protection mechanisms Legal mechanisms Breach of values procedure (art. 7 TEU) (3) Sanctions mechanism > Under Article 7(2)-(3) TEU, sanctions can be triggered with a proposal from the Commission or one third (1/3) of Member States, but not by the Parliament. In a first step, on such a proposal, the European Council (i.e. Heads of State or Government) determines, by unanimity and after obtaining Parliament's consent (by a two-thirds majority of the votes cast, and an absolute majority of Members under Article 354(4) TFEU), the existence of a serious and persistent breach of EU values by a Member State. The incriminated Member State may not vote in the European Council. 26

Rule of law - the protection mechanisms Legal mechanisms Breach of values procedure (art. 7 TEU) (4) Sanctions mechanism > In a second step, the Council may suspend certain membership rights of the MS concerned, including voting rights in the Council. This decision is adopted by qualified majority (354(1) TFEU) and the Council enjoys discretion as to the choice of sanctions to be imposed. Parliament's consent is necessary only for the first phase of the sanctions mechanism, but not for the second phase (decision on the suspension of membership rights). The representatives of the MS concerned do not take part in the votes in the Council and European Council, and are not counted in calculating the majorities necessary to trigger sanctions or a preventive determination, or to adopt other decisions (Article 354(1) TFEU). 27

Rule of law - the protection mechanisms Legal mechanisms Infringement proceedings art. 258 TFEU As 'guardian of the Treaties', the European Commission is empowered to commence infringement proceedings (Article 258 TFEU) against a Member State suspected of breaching the rule of law principles, if they are directly enshrined in the Treaties. The most important rules of primary EU law concerning the rule of law are Article 19(1) TEU & 47 CFR. The infringement proceedings can lead to the ECJ. ECJ rulings are binding on the Member States, which are subject to fines and financial penalties if they fail to take them into account. 28

Rule of law - the protection mechanisms Legal mechanisms infringement proceedings art. 258 TFEU The procedure If the MS concerned fails to communicate measures that fully transpose the provisions of directives, or doesn t rectify the suspected violation of EU law, the Commission may launch a formal infringement procedure. The procedure follows a number of steps laid out in the EU treaties, each ending with a formal decision: a) The Commission sends a letter of formal notice requesting further information to the MS concerned, which must send a detailed reply within a specified period, usually 2 months. 29

Rule of law - the protection mechanisms Legal mechanisms Infringement proceedings art. 258 TFEU The procedure b) If the Commission concludes that the MS is failing to fulfil its obligations under EU law, it may send a reasoned opinion: a formal request to comply with EU law. It explains why the Commission considers that the MS is breaching EU law. It also requests that the country inform the Commission of the measures taken, within a specified period, usually 2 months c) If the MS still doesn't comply, the Commission may decide to refer the matter to the ECJ. Most cases are settled before being referred d) If the court finds that a MS has breached EU law, the national authorities must take action to comply with the Court judgment. 30

Rule of law - the protection mechanisms Legal mechanisms Infringement proceedings art. 258 TFEU The procedure Non compliance with an ECJ decision: If, despite the court's judgment, the MS still doesn't rectify the situation, the Commission may refer the country back to the court. Financial penalties: When referring an EU MS to the ECJ for the second time, the Commission proposes that the ECJ imposes financial penalties, which can be either a lump sum and/or a daily payment. These penalties are calculated taking into account: the importance of the rules breached and the impact of the infringement on general and particular interests the period the EU law has not been applied the country's ability to pay, ensuring that the fines have a deterrent effect The amount proposed by the Commission can be changed by the court in its ruling. 31

Rule of law - the protection mechanisms Legal mechanisms Infringement proceedings art. 258 TFEU Case law - Recent and ongoing cases on the rule of law Since 2017, the Commission has launched 4 infringement proceedings regarding justice reforms in Poland. 3 have resulted in judgments of the ECJ. In June 2019, it deemed that the reduction of the age of retirement of judges at the Supreme Court infringed the principle of the tenure of judges and thus the independence of the judiciary. In November 2019, it issued the same judgement regarding all of judges and magistrates. Anticipating these decisions, the Polish government had already revised these measures. Two proceedings opened in 2020 in relation to the new disciplinary regime for judges, one is still on-going. 32

Rule of law - the protection mechanisms Legal mechanisms Infringement proceedings 258 TFEU Case law - Recent and ongoing cases on the rule of law 1. Early retirement of judges in Hungary (Case C-286/12) The first infringement case brought to the ECJ on a rule of law issue was Case C-286/12 Commission v Hungary (Compulsory retirement of judges), regarding the lowering of the retirement age of Hungarian judges and other legal professionals from 70 to 62 years. Technically, the Commission based its case on the Equal Treatment Directive (2006/54), but from the context, it appeared to observers that the removal of judges, prosecutors and notaries had adverse implications for judicial independence. The ECJ agreed with the Commission that the Hungarian compulsory retirement scheme violated the principle of proportionality, and therefore was illegal under the Directive. 33

Rule of law - the protection mechanisms Legal mechanisms Infringement proceedings 258 TFEU Case law - Recent and ongoing cases on the rule of law 2. Early retirement of ordinary judges in Poland (C-192/18) On 15 March 2018, the Commission took Poland to the ECJ on the issue of differentiated pension ages for male and female judges, as well as on the discretionary power of the Minister of Justice to extend the length of service for individual judges, issues that had been addressed in the Commission's earlier recommendations. The Commission not only based its case on the Equal Treatment Directive, but also Article 19(1) TEU on judicial remedies and Article 47 CFR on access to justice. In the meantime, Poland modified its laws, providing for the same pension age for female and male judges, and transferring the power to extend service from the Minister of Justice to the NCJ. 34

Rule of law - the protection mechanisms Legal mechanisms Infringement proceedings art. 258 TFEU Case law - Recent and ongoing cases on the rule of law Early retirement of ordinary judges in Poland (C-192/18) (2) Before the Court, Poland argued that the case is inadmissible because the national rules had already been amended. Concerning the allegation of a breach of Article 19 TEU, Poland argued that the Commission's application is generalised, hypothetical and abstract, as well as encroaching upon Poland's competence to organise its own system for the administration of justice. In its judgment (11/2019), ECJ held that Poland had failed to fulfil its obligations under EU law by establishing a different retirement age for men and women who were judges or public prosecutors in Poland and by lowering the retirement age of judges of the ordinary courts while conferring on the Minister for Justice the power to extend the period of active service of those judges. 35

Rule of law - the protection mechanisms Legal mechanisms Infringement proceedings art. 258 TFEU Case law - Recent and ongoing cases on the rule of law 3. Early retirement of Supreme Court judges in PL (C-619/18) A separate case against Poland was filed by the Commission concerning the lowering of the retirement age of Supreme Court judges (C-619/18), an issue also addressed earlier in the Commission's recommendations (see above). On the other hand, the Polish legislation gave the President of Poland the power to extend, at his discretion, the period in office of judges affected by the new legislation, thereby enabling the President to allow judges to remain in their posts for the period of their original appointment (i.e. until the previously applicable retirement age). 36

Rule of law - the protection mechanisms Legal mechanisms Infringement proceedings art. 258 TFEU Case law -Recent and ongoing cases on he rule of law Early retirement of Supreme Court judges in PL (C-619/18) (2) The Commission argued that the Polish legislation breaches the combined provisions of the second subparagraph of Article 19(1) TEU and Article 47 CFR. The ECJ introduced interim measures, effectively suspending the application of the Polish legislation and reinstating the Supreme Court judges. However, the measures were implemented by a separate act of the Polish Parliament of 21 November 2018, reinstating the judges in question on the authority of the Polish legislature. Poland subsequently asked the Court to close the case as devoid of purpose (since the judges had already been reinstated by the act of 21 November 2018) - the Court did not agree. 37

Rule of law - the protection mechanisms Legal mechanisms Infringement proceedings art. 258 TFEU Case law - Recent and ongoing cases on the rule of law Early retirement of Supreme Court judges in Poland (C-619/18) (3) On the substance, Poland, supported by Hungary, argued that that the contested national rules do not fall within the scope of Article 19(1) TEU nor Article 47 CFR. The latter article does not apply, according to the two Member States, because no fundamental rights were violated and the law on organisation of justice does not implement any EU legal act. Concerning the specific issues, Poland argued that early retirement cannot be equated with dismissal, as the judges in question continue to receive their salary (as a 'judge in state of retirement'). 38

Rule of law - the protection mechanisms Legal mechanisms Iinfringement proceedings art. 258 TFEU Case law -Recent and ongoing cases on the rule of law Early retirement of Supreme Court judges in PL (C-619/18) (4) Furthermore, PL argued that the reform aims at aligning the judicial retirement age with the standard retirement age. The President's discretional power to prolong a judge's mandate does not affect the judge's independence, which is guaranteed through the secrecy of deliberations and rules on composition of the Supreme Court's chambers. Finally, PL pointed to the absence of EU-wide standards on judicial self-government bodies participating in the appointment of judges. The Court found that by lowering the retirement age of the judges of the Supreme Court for judges in post appointed to that court before 3.4.2018 and, by granting the President the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age, PL has failed to fulfil its obligations under the 2nd subpara of 19(1) TEU. 39

Rule of law - the protection mechanisms Legal mechanisms infringement proceedings art. 258 TFEU Case law -Recent and ongoing cases on the rule of law 4. Disciplinary regime for Polish judges (C-791/19) Grand Ch. According to ECJ, Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU: by failing to guarantee the independence and impartiality of the Disciplinary Chamber of the Sup. Court, responsible for reviewing decisions issued in disciplinary proceedings against judges by conferring on the President of the Disciplinary Chamber of the Supreme Court the discretionary power to designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of the ordinary courts and, therefore, by failing to guarantee that disciplinary cases are examined by a tribunal established by law ; 40

Rule of law - the protection mechanisms `Legal mechanisms infringement proceedings art. 258 TFEU Case law -Recent and ongoing cases on the rule of law Disciplinary regime for Polish judges (C-791/19) (2) by failing to guarantee that disciplinary cases against judges of the ordinary courts are examined within a reasonable time and by providing that actions relating to the appointment of defence counsel and the taking up of the defence by that counsel do not have a suspensory effect on the course of the disciplinary proceedings (and that the disciplinary tribunal is to conduct the proceedings despite the justified absence of the notified accused judge or his or her defence counsel (and, therefore, by failing to guarantee respect for the rights of defence of accused judges of the ordinary courts ECJ (art. 260 TFEU) imposed a fine of 1 million per day on PL until it complies with a ruling to suspend its disciplinary chamber for judges 41

Rule of law - the protection mechanisms Legal mechanisms infringement proceedings art. 258 TFEU Case law -Recent and ongoing cases on the rule of law 5. Disciplinary regime for Polish judges (C-204/21 pending) New law (Dec. 2019) amending a series of legislative acts governing the functioning of the justice system in PL, entered into force on 14.02.2020 The Commission decided to refer Poland to the ECJ regarding the above law on the judiciary. The Commission also decided to ask the ECJ to order interim measures until it has issued a final judgment in the case. The Commission considers that the Polish law on the judiciary undermines the independence of Polish judges and is incompatible with the primacy of EU law. Moreover, the law prevents Polish courts, including by using disciplinary proceedings, from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the Court of Justice. 42

Rule of law - the protection mechanisms Legal mechanisms infringement proceedings art. 258 TFEU Case law -Recent and ongoing cases concerning the rule of law Disciplinary regime for Polish judges (C-204/21 pending) (2) n addition, the Commission considers that PL violates EU law by allowing the Disciplinary Chamber of the Sup. Court the independence of which is not guaranteed to take decisions which have a direct impact on judges and the way they exercise their function. These matters include cases on the lifting of immunity of judges with a view to bringing criminal proceedings against them or detain them, and the consequent temporary suspension from office and the reduction of their salary. The mere prospect for judges of having to face proceedings before a body whose independence is not guaranteed creates a chilling effect' for judges and can affect their own independence. The Commission considers that this seriously undermines judicial independence and the obligation to ensure effective legal protection, and thus the EU legal order as a whole 43

Rule of law - the protection mechanisms Legal mechanisms Infringement proceedings 258 TFEU Case law -Recent and ongoing cases concerning the rule of law Disciplinary regime for Polish judges (C-204/21 pending) (3) On 31.03.2021, the Commission decided to refer PL to ECJ and asked for the interim measures. On 14.07.2021, the ECJ imposed interim measures on Poland, related to the functioning of the Disciplinary Chamber of the S. Court granting the request of the Commission on all points. The Court ordered Poland: To suspend the provisions by which the Disciplinary Chamber can decide on requests for the lifting of judicial immunity, as well as on matters of employment, social security and retirement of Supreme Court judges; To suspend the effects of decisions already taken by the Disciplinary Chamber on the lifting of judicial immunity; and To suspend the provisions preventing Polish judges from directly applying EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the ECJ 44

Conclusions on case law Legal mechanisms - infringement proceedings 258 TFEU Case law concerning the rule of law conclusions Procedures take too long -The Commission has stressed the following: "The longer [problems] take to resolve, the greater the risk of entrenchment and of damage to the EU, as well as to the Member State concerned Justice takes time, but in the case of breaches of the rule of law, the fait accompli can create situations that are difficult to reverse. A country subject to an infringement procedure generally has 2 months to respond to the letter of formal notice and, if its response is unsatisfactory, a further 2 months to respond to the reasoned opinion sent to it. But in urgent cases, the Commission can impose shorter deadlines. It has already done so, but not systematically. 45

Conclusions on case law Legal mechanisms - infringement proceedings art. 258 TFEU Case law concerning the rule of law conclusions (2) In addition, the Commission can ask the Court of Justice to impose interim measures (278 TFEU) and order the suspension of the contested measures. The Commission has used this provision 3 times: in 2018 for the reform of the Polish judges' pension, in April 2020 for the new competences of the Disciplinary Chamber of the Supreme Court, and in March 2021 for the competences of the Disciplinary Chamber. 46

Conclusions on case law Legal mechanisms - infringement proceedings art. 258 TFEU Case law concerning the rule of law conclusions (3) The Court may decide, on request of the applicant or by decision of its President, to deal with certain cases under an accelerated procedure "where the nature of the case requires that it be dealt with within a short time". The Commission and the Court, as guardian of the Treaties and "guarantor of the protection of European law", can use this possibility to limit as much as possible the infringement of countervailing powers in the Member States 47

Rule of law and Member state liability for breaches of EU law The links In accordance with the rule of law principle, if a State body causes damage to an individual as a result of an unlawful act, the former is obliged to compensate the latter for the harm suffered Member State liability for breaches of EU law was established by case-law. The recognition and structuring of the said doctrine was initially developed in the principles of Francovich (1991), further clarified in Brasserie du P cheur (1996) and extended in K bler (2003), in order to also cover breaches by the judiciary as enriched in Traghetti (2006). 48

Rule of law and Member state liability for breaches of EU law The impact on the conditions for establishing MS liability The liability is triggered by breaches of any state body, i.e. the executive, legislature and judiciary. A manifest breach of EU law by any state body leads to the civil liability of the respective Member State, as a means of compensating private parties for damage suffered. In particular, according to the case law, the following conditions trigger MS liability: A sufficiently serious breach of EU law through an act or omission by the national legislator, administration, judiciary The EU legislation must confer rights to the individuals; There must exist a the breach committed by the MS and the resulting damage. direct causal link between 49

Rule of law and Member state liability for breaches of EU law The impact on the conditions for establishing MS liability It follows that an infringement proceeding (art. 258 TFEU) based on a violation of the rule of law principle would constitute a serious breach conducive to the establishment of the MS liability 50