In an unprecedented move, the European Commission has triggered Article 7 of the Treaty on the European Union against Poland, calling for a vote of EU member states on whether the Polish government’s changes to its judiciary violate EU fundamental rights.

“[T]he Commission has today concluded that there is a clear risk of a serious breach of the rule of law in Poland,” the European Commission said in a statement Wednesday. “Judicial reforms in Poland mean that the country’s judiciary is now under the political control of the ruling majority.”

If 22 of the 28 member states and the European Parliament agree that Poland has violated the EU’s fundamental values, including the rule of law, Poland could be sanctioned and have its EU voting rights suspended.

Background: Poland became a member of the EU in 2004. In recent years, Poland has changed the structure of its judiciary, including lowering the retirement age of Supreme Court judges from 70 to 65 (60 for female judges), allowing lawmakers to choose judges, and allowing cases from the past 20 years to be reopened.

The Commission set out actions that Poland needs to take to reverse the changes and restore the judiciary’s independence in order to address the Commission’s concerns.

BAL Analysis: The Commission expressed its concern that without judicial independence, EU law would not be protected on a range of issues from family law to business investments to criminal law. However, even if Poland were to lose EU voting rights, such sanctions would not affect immigration or mobility between Poland and the EU, as free movement is one of the fundamental principles that could only be infringed by the loss of EU membership.

This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.

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