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1 EN EXPLANATORY MEMORANDUM 1.

INTRODUCTION (1) The European Union is founded on a common set of values enshrined in Article

2 of the Treaty on European Union ('

TEU'

), which include the respect for the rule of law. The Commission, beyond its task to ensure the respect of EU law, is also responsible, together with the European Parliament, the Member States and the Council, for guaranteeing the common values of the Union. (2) Case law of the Court of Justice of the European Union and of the European Court of Human Rights, as well as documents drawn up by the Council of Europe, building notably on the expertise of the European Commission for Democracy through Law ('

Venice Commission'

), provide a non-exhaustive list of these principles and hence define the core meaning of the rule of law. Those principles include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws;

legal certainty;

separation of powers;

prohibition of arbitrariness of the executive powers;

independent and impartial courts;

effective judicial review including respect for fundamental rights;

and equality before the law1 . In addition to upholding those principles and values, State institutions also have the duty of loyal cooperation. (3) According to Article 7(1) TEU, on a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. 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. (4) The present reasoned proposal sets out, in accordance with Article 7(1) TEU, the concerns of the Commission with regard to the rule of law in Poland. It invites the Council to determine, on the basis of the same provision, that there is a clear risk of a serious breach by the Republic of Poland of the rule of law which is one of the values referred to in Article

2 TEU. (5) The concerns of the Commission relate to the following issues: (1) the lack of an independent and legitimate constitutional review;

(2) the adoption by the Polish Parliament of new legislation relating to the Polish judiciary which raises grave concerns as regards judicial independence and increases significantly the systemic threat to the rule of law in Poland: (a) the law on the Supreme Court;

approved by the Senate on

15 December 2017. (b) the law amending the law on the Ordinary Courts Organisation ('

law on Ordinary Courts Organisation'

);

published in the Polish Official Journal on

28 July

2017 and in force since

12 August 2017;

1 See section 2, Annex I of the Communication from the Commission to the European Parliament and the Council of

11 March 2014, '

A new EU Framework to Strengthen the Rule of Law'

, COM(2014)

158 final. EN

2 EN (c) the law amending the law on the National Council for the Judiciary and certain other laws ('

law on the National Council for the Judiciary'

);

approved by the Senate on

15 December 2017;

(d) the law amending the law on the National School of Judiciary and Public Prosecution, the law on Ordinary Courts Organisation and certain other laws ('

law on the National School of Judiciary'