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The term of the Polish Ombudsman for human rights, Adam Bodnar, expired in September of this year. While Article 3.6 of the Polish Law on the Ombudsman clearly states that “the current Ombudsman can perform his duties until his position is filled”, the candidacy of Zuzanna Rudzińska-Bluszcz, the only person applying for his position, has not been approved by the Polish Parliament, and the ruling Law and Justice party issued a motion to the politicized Constitutional Tribunal to rule the extension of Mr. Bodnar’s term unconstitutional.

Last week, the Venice Commission already expressed its concern that such actions may effectively block the Ombudsman from performing his duties and interrupt the continuity of the institution. 

A new front line

During yesterday’s press briefing, the EU Commission emphasized that “it is well aware of the concerns expressed by the Office of Democratic Institutions and Human Rights and the Venice Commission”. An EU official asking to remain anonymous told us that the Commission is now hoping that Poland will hold itself back from “drawing a new front line in the battle for the rule of law” with the EU.

“It is extremely important that the office of the Polish Ombudsman retains its independence and its operations are not hindered. It is important that it continues to function. Especially during a pandemic crisis” –the EU Commission spokesperson, Christian Wigand, said during the press conference. The Vice-President of the Commission, Vera Jourová, doubled down on the opinion in a post on Twitter.

Wigand also recalled the Commission's opinion that the Polish Ombudsman "plays an important role in defending the rule of law and fundamental rights" and is "key to protecting the principle of equal treatment of all citizens”.

MEPs to the EU Commission: it’s time to act!

Despite its public appeal to the Polish government regarding the institution of the Ombudsman, yesterday, the EU Commission has also come under fire from MEPs- they criticized it for lack of action in relation to Poland’s violations of the rule of law.

Juan F. Lopez Aguilar, Chair of the EU Committee on Civil Liberties, Justice and Home Affairs (LIBE), asked the Commission to clarify its „worrisome” lack of action regarding the infringement proceedings it has launched against Poland.  

As an example, in his letter to Vice-President Jourová and Commissioner Reynders, Mr. Lopes Aguilar mentions the so-called “muzzle law”. Brussels initiated the infringement proceedings against Poland for concerns over its violation of judicial independence, but the Polish government rejected all charges at the end of June. The procedures in such a situation are clear: should the Commission still have any objections, it should move on to the second stage of the proceedings, and then possibly file a complaint against Poland with the EU Court of Justice. Yet, as of now, none of this happened.

Moreover, Mr. Lopez Aguilar referred to the recent case of Justice Beata Morawiec whose immunity had been revoked by the Disciplinary Chamber of the Polish Supreme Court.  Mentioning it as another example of Poland’s failure to implement the CJEU’s April decision to suspend the chamber (as an „interim measure”), Mr. Lopez Aguilar points out that the Commission did not request the CJEU to impose financial sanctions on Poland, and is still analyzing the official position of the Polish government.

According to our sources, the EU Commission lawyers are prepared to enter the second phase of the proceedings regarding the "muzzle law". Already in the summer, they concluded that Poland has indeed not fully implemented the order to suspend the Disciplinary Chamber. However, any decisions on taking further steps (especially on the latter issue) are now directly in the hands of Ursula von der Leyen, the President of the Commission. Thus far, she decided not to take further action.

Von der Leyen doesn’t want to escalate the tensions

Some of our informants explain President von der Leyen’s general unwillingness to escalate the tensions between the Commission and the Polish government as being the result of, among other things, the already difficult process of implementing the “rule of law mechanism”- a conditionality instrument that would cut or limit the access to EU’s financial resources when in cases when a Member State breaches the rule of law.

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