(1)

In accordance with Article 67(3) of Regulation (EC) No 726/2004 of the European Parliament and of the Council (2), the revenue of the European Medicines Agency consists of a contribution from the Union and fees paid by undertakings for obtaining and maintaining Union marketing authorisations and for other services provided by the Agency, or by the coordination group as regards the fulfilment of its tasks in accordance with Articles 107c, 107e, 107g, 107k and 107q of Directive 2001/83/EC of the European Parliament and of the Council (3).

(2)

The inflation rate of the Union, as published by the Statistical Office of the European Union, was 0,2 % for 2015 and 1,2 % for 2016. Taking into consideration the very low inflation rate in 2015, it was not considered justified to adjust, in accordance with Article 15(6) of Regulation (EU) No 658/2014, the amounts of the fees payable to the European Medicines Agency for the conduct of pharmacovigilance activities in respect of medicinal products for human use. In view of the inflation rate of the Union for 2016, it is considered justified to adjust those amounts. A cumulative adjustment taking into account the inflation rates for 2015 and for 2016 should be applied.

(3)

For the sake of simplicity, the adjusted amounts should be rounded to the nearest EUR 10, with the exception of the annual fee for information technology systems and literature monitoring where the adjusted level should be rounded to the nearest EUR 1.

(4)

Fees laid down in Regulation (EU) No 658/2014 are due either at the date of the start of the respective procedure or, in the case of the annual fee for information technology systems and literature monitoring, on 1 July of every year. Consequently, the applicable amount will be determined by the due date of the fee and there is no need to set specific transitional provisions for pending procedures.

(5)

According to Article 15(6) of Regulation (EU) No 658/2014, where a delegated act adjusting the amounts of the fees laid down in Parts I to IV of the Annex to that Regulation enters into force before 1 July, the adjustments are to take effect as from 1 July, whereas where it enters into force after 30 June, the adjustments are to take effect from the date of entry into force of the delegated act.

(6)

The Annex to Regulation (EU) No 658/2014 should therefore be amended accordingly,

(1)

in Part I, point 1 is amended as follows:

(2)

in Part II, point 1 is amended as follows:

(3)

in Part III, point 1 is amended as follows:

(4)

in point 1 of Part IV, ‘EUR 67’ is replaced by ‘EUR 68’.

(1)

The conditions for an increase of the percentage of the budgetary resources dedicated to projects supporting the conservation of nature and biodiversity referred to in Article 9(3) of the LIFE Regulation by a maximum of 10 % are fulfilled, since the total funds requested over 2 consecutive years by way of proposals that fall under the priority area of Nature and Biodiversity and that meet minimum quality requirements exceed by more than 20 % the corresponding amount calculated for the 2 years preceding those years.

(2)

In view of the Nature Directives Fitness Check (2) conclusions concerning the need to increase funding availability to enhance the Directives implementation and Action 8 of the Commission's Action Plan for nature, people and the economy (3), the Commission decided to increase the 55 % budgetary resources allocated to projects supported by way of action grants under the sub-programme for Environment that fall under the priority area of Nature and Biodiversity.

(3)

The increase of the percentage of the budgetary resources for the priority area Nature and Biodiversity is not expected to reduce the resources devoted to projects funded under the other priority areas of the sub-programme for Environment, due to the planned increase in the annual financial envelope for the implementation of the LIFE Programme in the years 2018-2020 and the decrease of the EU co-funding rate for the majority of action grants under the other priority areas from 60 % to 55 %,

(1)

Within the context of the agreements concluded under the Uruguay Round of multilateral trade negotiations (2), the Union has committed to allowing Spain to import a quantity of 300 000 tonnes of sorghum per year.

(2)

Between 1 January 2017 and 7 August 2017, 103 967 tonnes of sorghum were imported into Spain. During that period, the import duty for sorghum was set at EUR 0 per tonne, in accordance with Commission Regulation (EU) No 642/2010 (3). Since 8 August 2017, and following the reintroduction of an import duty of more than zero for sorghum in accordance with Regulation (EU) No 642/2010, 26 250 tonnes of sorghum has been imported into Spain.

(3)

To ensure that import quotas are fully used, Article 6 of Commission Regulation (EC) No 1296/2008 (4) provides that a reduction may be applied to the import duty fixed in accordance with Regulation (EU) No 642/2010.

(4)

Taking the conditions of the sorghum market into account, particularly the fact that the price of sorghum on the global market is higher than that of maize, it is necessary to apply a flat-rate reduction of 100 % to the import duty fixed in accordance with Regulation (EU) No 642/2010 as regards the quantities of sorghum to be imported into Spain under the tariff quota opened on 1 January 2017 in accordance with Regulation (EC) No 1296/2008.

(5)

Taking into account the time constraints related to the adoption of a delegated act and the need to enable the full use of the import quota, it is appropriate to provide for the application of the flat-rate reduction for a period exceeding the quota year 2017,

(1)

Pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012, Croatia's application to register the name ‘Slavonski med’ was published in the Official Journal of the European Union (2).

(2)

As no statement of opposition under Article 51 of Regulation (EU) No 1151/2012 has been received by the Commission, the name ‘Slavonski med’ should therefore be entered in the register,

(1)

Pursuant to the first subparagraph of Article 53(1) of Regulation (EU) No 1151/2012, the Commission has examined France's application for the approval of amendments to the specification for the protected designation of origin ‘Oignon doux des Cévennes’, registered under Commission Regulation (EC) No 723/2008 (2), as amended by Commission Regulation (EU) No 686/2013 (3).

(2)

Since the amendments in question are not minor within the meaning of Article 53(2) of Regulation (EU) No 1151/2012, the Commission published the amendment application in the Official Journal of the European Union (4) as required by Article 50(2)(a) of that Regulation.

(3)

As no statement of opposition under Article 51 of Regulation (EU) No 1151/2012 has been received by the Commission, the amendments to the specification should be approved,

(1)

Annex II to Regulation (EC) No 1333/2008 lays down a Union list of food additives approved for use in food and their conditions of use.

(2)

That list may be updated in accordance with the common procedure referred to in Article 3(1) of Regulation (EC) No 1331/2008, either on the initiative of the Commission or following an application.

(3)

On the basis of the information provided by the Member States, the Commission has concluded that Annex II to Regulation (EC) No 1333/2008 should be amended as regards the use of E 950 Acesulfame K, E 951 Aspartame, E 952 Cyclamic acid and its Na and Ca salts, E 954 Saccharin and its Na, K and Ca salts, E 955 Sucralose, E 959 Neohesperidine DC, E 961 Neotame, E 962 Salt of aspartame-acesulfame and E 969 Advantame in ‘fine bakery products for special nutritional uses’.

(4)

The use of sweeteners in ‘fine bakery products for special nutritional uses’ was authorised by the European Parliament and Council Directive 94/35/EC (3). The food ‘fine bakery products for special nutritional uses’ covered ‘foods for persons suffering from carbohydrate metabolism disorders (diabetes)’ regulated by Council Directive 89/398/EEC (4). This Directive established a common definition for ‘foodstuffs for particular nutritional uses’ and provided that specific provisions could be adopted as regards ‘food for persons suffering from carbohydrate metabolism disorders (diabetes)’, a category of food falling within the definition of foodstuffs for particular nutritional uses.

(5)

However, as concluded in the Commission's report (5) on foods for persons suffering from diabetes, the scientific basis for setting specific compositional requirements for those foods was lacking. Furthermore, Regulation (EU) No 609/2013 of the European Parliament and of the Council (6) has abolished the concept of ‘foodstuffs for particular nutritional uses’, including that of ‘food for persons suffering from carbohydrate metabolism disorders (diabetes)’.

(6)

Therefore, the authorisation of those sweeteners in ‘fine bakery products for special nutritional uses’ in accordance with Article 7(c) of Regulation (EC) No 1333/2008 is no longer justified and those products should not continue to be marketed.

(7)

Furthermore, uniform application of the conditions for authorisation of use of sweeteners would ensure clarity and the proper functioning of the internal market.

(8)

Therefore, the entries for food additives E 950 Acesulfame K, E 951 Aspartame, E 952 Cyclamic acid and its Na and Ca salts, E 954 Saccharin and its Na, K and Ca salts, E 955 Sucralose, E 959 Neohesperidine DC, E 961 Neotame, E 962 Salt of aspartame-acesulfame and E 969 Advantame referring to the use in ‘only fine bakery products for special nutritional uses’ in food category 07.2 fine bakery wares should be deleted.

(9)

Annex II to Regulation (EC) No 1333/2008 should therefore be amended accordingly.

(10)

In order to allow economic operators to adapt to the new rules, it is appropriate to provide for a transitional period during which fine bakery products for special nutritional uses containing any of those sweeteners may continue to be marketed.

(11)

The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

(1)

Annex II to Regulation (EC) No 1333/2008 lays down a Union list of food additives approved for use in foods and their conditions of use.

(2)

Annex III to Regulation (EC) No 1333/2008 lays down a Union list of food additives approved for use in food additives, food enzymes, food flavourings, nutrients and their conditions of use.

(3)

Commission Regulation (EU) No 231/2012 (2) lays down specifications for food additives that are listed in Annexes II and III to Regulation (EC) No 1333/2008.

(4)

Calcium sorbate (E 203) is a substance authorised as a preservative in a variety of foods, as well as in food colour preparations and food flavourings, in accordance with Annexes II and III to Regulation (EC) No 1333/2008.

(5)

Article 32(1) of Regulation (EC) No 1333/2008 provides that all food additives that were already permitted in the Union before 20 January 2009 are subject to a new risk assessment by the European Food Safety Authority (‘the Authority’).

(6)

For that purpose, a program for the re-evaluation of food additives is laid down in the Commission Regulation (EU) No 257/2010 (3). Pursuant to Regulation (EU) No 257/2010 the re-evaluation of preservatives had to be completed by 31 December 2015.

(7)

On 30 June 2015 the Authority delivered a Scientific Opinion on the re-evaluation of sorbic acid (E 200), potassium sorbate (E 202) and calcium sorbate (E 203) as food additives (4). The opinion stated that there was a lack of genotoxicity data on calcium sorbate. Consequently the Authority was not able to confirm the safety of calcium sorbate as a food additive and concluded that it should be excluded from the group Acceptable Daily Intake (ADI) defined for sorbic acid (E 200) and potassium sorbate (E 202). The opinion stated that genotoxicity studies on calcium sorbate need to be performed in order to consider including calcium sorbate in that group ADI.

(8)

On 10 June 2016 the Commission launched a public call for scientific and technological data on sorbic acid (E 200), potassium sorbate (E 202) and calcium sorbate (E 203) (5), targeting the data needs identified in the Scientific Opinion on the re-evaluation of those substances as food additives. However, no business operator committed to providing the requested genotoxicity data for calcium sorbate (E 203). Without those data the Authority cannot complete the re-evaluation of the safety of calcium sorbate as a food additive and consequently it cannot be determined whether that substance still fulfils the conditions pursuant to Article 6(1) of Regulation (EC) No 1333/2008 for inclusion in the Union list of approved food additives.

(9)

It is therefore appropriate to remove calcium sorbate (E 203) from the Union list of approved food additives.

(10)

Pursuant to Article 10(3) of Regulation (EC) No 1333/2008, the Union list of approved food additives shall be amended in accordance with the procedure referred to in Regulation (EC) No 1331/2008 of the European Parliament and of the Council (6).

(11)

Article 3(1) of Regulation (EC) No 1331/2008 provides that the Union list of food additives may be updated either on the initiative of the Commission or following an application.

(12)

Therefore, Annexes II and III to Regulation (EC) No 1333/2008 and the Annex to Regulation (EU) No 231/2012 should be amended by deleting calcium sorbate (E 203) from the Union list of authorised food additives since due to the absence of appropriate genotoxicity data its inclusion in the list can no longer be justified.

(13)

In order to enable food business operators to adapt to the new requirements or to find alternatives to calcium sorbate (E 203), this Regulation should apply 6 months after its entry into force.

(14)

The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

(1)

Article 23(3) of Directive 2011/16/EU provides for a yearly assessment of the effectiveness of the automatic exchange of information to be communicated by the Member States to the Commission.

(2)

Article 23(4) of Directive 2011/16/EU provides for a list of statistical data to be provided by the Member States for the purposes of evaluating that Directive.

(3)

The list does not include statistical data as regards the mandatory exchange of information pursuant to Article 8a of Directive 2011/16/EU as such data will be gathered by the Commission from the central directory established pursuant to Article 21(5) of Directive 2011/16/EU.

(4)

Commission Implementing Regulation (EU) 2015/2378 (2) should therefore be amended accordingly.

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Committee on Administrative Cooperation for Taxation,

(1)

the following Articles 2c and 2d are inserted:

(2)

Annexes VIII, IX, X, XI and XII are added as set out in the Annex to this Regulation.

(1)

Commission Directives 2003/90/EC (3) and 2003/91/EC (4) were adopted to ensure that the varieties the Member States include in their national catalogues comply with the protocols established by the Community Plant Variety Office (CPVO) as regards the characteristics to be covered as a minimum by the examination of the various species and the minimum conditions for examining the varieties, as far as such protocols had been established. For the species not covered by CPVO protocols those Directives provide that guidelines of the International Union for Protection of New Varieties of Plants (UPOV) are to apply.

(2)

Since the last amendment to Directives 2003/90/EC and 2003/91/EC by Commission Implementing Directive (EU) 2016/1914 (5) the CPVO and UPOV have established further protocols and guidelines and have updated existing ones.

(3)

Directives 2003/90/EC and 2003/91/EC should therefore be amended accordingly.

(4)

The measures provided for in this Directive are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

(1)

The European Security Strategy adopted by the European Council on 12 December 2003 outlines five key challenges to be addressed by the Union: terrorism, the proliferation of weapons of mass destruction, regional conflicts, state failure, and organised crime. The consequences of the uncontrolled circulation of conventional weapons are central to four of those five challenges. That Strategy underlines the importance of export controls to contain weapons proliferation. The new Global Strategy for the Union's foreign and security policy, titled ‘Shared Vision, Common Action: A Stronger Europe’, which was presented by the High Representative on 28 June 2016, confirms the Union's support for the universalisation, full implementation and enforcement of multilateral disarmament, non-proliferation and arms control treaties and regimes.

(2)

On 5 June 1998, the Union adopted a politically binding Code of Conduct on Arms Exports, which sets common criteria to regulate the legal trade in conventional weapons.

(3)

The Union Strategy to combat illicit accumulation and trafficking of small arms and light weapons (SALW) and their ammunition, adopted by the European Council on 15 and 16 December 2005, provides that the Union, at regional and international levels, supports the strengthening of export controls and the promotion of the criteria of the Code of Conduct on Arms Exports by, inter alia, helping third countries to draft relevant national legislation and to promote measures to improve transparency.

(4)

The Code of Conduct on Arms Exports was replaced on 8 December 2008 by Council Common Position 2008/944/CFSP (1), which establishes eight criteria against which applications for the export of conventional arms are to be assessed. It also includes a notification and consultation mechanism for arms exports denials, and transparency measures such as the yearly publication of an EU annual report on arms exports. A number of third countries have aligned themselves with Common Position 2008/944/CFSP.

(5)

Article 11 of Common Position 2008/944/CFSP states that Member States are to use their best endeavours to encourage other States which export military technology or equipment to apply the criteria contained in that Common Position.

(6)

The Arms Trade Treaty (ATT) was adopted by the UN General Assembly in April 2013 and entered into force on 24 December 2014. The Treaty aims to strengthen transparency and responsibility in the arms trade. As with Common Position 2008/944/CFSP, the ATT lays down a number of risk assessment criteria against which arms exports have to be assessed. The Union concretely supports the effective implementation and universalisation of the ATT through its dedicated programmes adopted under Council Decision 2013/768/CFSP (2) and Council Decision (CFSP) 2017/915 (3). Those programmes assist a number of third countries, where they so request, in strengthening their arms transfer control systems in line with the requirements of the Treaty.

(7)

It is therefore important to ensure complementarity between the outreach and assistance activities provided for in the present Decision and those provided for in Decision (CFSP) 2017/915.

(8)

Union activities to promote effective and transparent arms export controls have developed since 2008 under Joint Action 2008/230/CFSP (4) and Council Decisions 2009/1012/CFSP (5) and 2012/711/CFSP (6) and Council Decision (CFSP) 2015/2309 (7). The activities carried out have notably supported further regional cooperation, enhanced transparency and greater responsibility, in line with the principles of Common Position 2008/944/CFSP and the risk assessment criteria enshrined therein. The activities in question have traditionally addressed third countries of the eastern and southern neighbourhoods of the Union.

(9)

In recent years, the Union has also provided assistance to improve export controls on dual-use goods in third countries, and effective coordination should be ensured between the arms export control activities covered by this Decision and those activities on export controls of dual-use goods.

(10)

The German Federal Office for Economic Affairs and Export Control (‘BAFA’) has been entrusted by the Council with the technical implementation of Decisions 2009/1012/CFSP and 2012/711/CFSP and Decision (CFSP) 2015/2309. BAFA is also an implementing agency for projects supporting the effective implementation of the ATT under Decision 2013/768/CFSP and Decision (CFSP) 2017/915. BAFA is the competent agency for arms control of an EU Member State, and has developed a large body of knowledge and expertise on outreach activities, in addition to sharing its core competencies with other states,

(1)

Directive 91/68/EEC defines the animal health conditions governing trade in the Union in ovine and caprine animals. It lays down the conditions whereby Member States or regions thereof may be recognised as being officially free of brucellosis (B. melitensis).

(2)

Commission Decision 93/52/EEC (2) lists, in Annex II thereto, the regions of Member States which are recognised as officially free of brucellosis (B. melitensis) in accordance with Directive 91/68/EEC.

(3)

Spain has submitted to the Commission documentation demonstrating compliance for the Autonomous Communities of Aragon and Catalonia with the conditions laid down in Directive 91/68/EEC for officially brucellosis (B. melitensis)- free status as regards ovine and caprine herds.

(4)

Following the evaluation of the documentation submitted by Spain, the Autonomous Communities of Aragon and Catalonia should be recognised as being officially free of brucellosis (B. melitensis) as regards ovine and caprine herds.

(5)

The entry for Spain in Annex II to Decision 93/52/EEC should therefor be amended accordingly.

(6)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

(1)

On 27 July 2016, the Commission adopted a Recommendation regarding the rule of law in Poland (1), setting out its concerns on the situation of the Constitutional Tribunal and recommending how these should be addressed. On 21 December 2016 and on 26 July 2017, the Commission adopted complementary Recommendations regarding the rule of law in Poland (2).

(2)

The Recommendations of the Commission were adopted under the Rule of Law Framework (3). The Rule of Law Framework sets out how the Commission will react should clear indications of a threat to the rule of law emerge in a Member State of the Union and explains the principles which the rule of law entails. The Rule of Law Framework provides guidance for a dialogue between the Commission and the Member State in order to prevent the emergence of a systemic threat to the rule of law that could develop into a ‘clear risk of a serious breach’ which would potentially trigger the use of the ‘Article 7 TEU Procedure’. Where there are clear indications of a systemic threat to the rule of law in a Member State, the Commission can initiate a dialogue with that Member State under the Rule of Law Framework.

(3)

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.

(4)

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’), provides a non-exhaustive list of these principles and hence defines the core meaning of the rule of law as a common value of the Union in accordance with Article 2 TEU. Those principles include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law (4). In addition to upholding those principles and values, State institutions also have the duty of loyal cooperation.

(5)

In its Recommendation of 27 July 2016, the Commission explained the circumstances in which it decided, on 13 January 2016, to examine the situation under the Rule of Law Framework and in which it adopted, on 1 June 2016, an Opinion concerning the rule of law in Poland. The Recommendation also explained that the exchanges between the Commission and the Polish Government were not able to resolve the concerns of the Commission.

(6)

In its Recommendation, the Commission found that there was a systemic threat to the rule of law in Poland and recommended that the Polish authorities take appropriate action to address this threat as a matter of urgency.

(7)

In its Recommendation of 21 December 2016, the Commission took into account the latest developments in Poland that had occurred since the Commission's Recommendation of 27 July 2016. The Commission found that whereas some of the issues raised in its last Recommendation had been addressed, important issues remained unresolved, and new concerns had arisen in the meantime. The Commission also found that the procedure which had led to the appointment of a new President of the Tribunal raised serious concerns as regards the rule of law. The Commission concluded that there continued to be a systemic threat to the rule of law in Poland. The Commission invited the Polish Government to solve the problems identified as a matter of urgency, within two months, and to inform the Commission of the steps taken to that effect. The Commission noted that it remained ready to pursue a constructive dialogue with the Polish Government on the basis of the Recommendation.

(8)

On 26 July 2017, the Commission adopted a third Recommendation regarding the Rule of Law in Poland, complementary to its Recommendations of 27 July and 21 December 2016. In its Recommendation, the Commission took into account the developments that had occurred in Poland since the Commission's Recommendation of 21 December 2016. The concerns of the Commission relates to the lack of an independent and legitimate constitutional review and to 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. In its Recommendation, the Commission considers that the situation of a systemic threat to the rule of law in Poland as presented in its Recommendations of 27 July 2016 and 21 December 2016 has seriously deteriorated.

(9)

In particular, the Recommendation underlines that the law on the National Council for the Judicary of 15 July 2017 and the law on the Supreme Court of 22 July 2017, should they enter into force, would structurally undermine the independence of the judiciary in Poland and would have an immediate and concrete impact on the independent functioning of the judiciary as a whole. Given that the independence of the judiciary is a key component of the rule of law, these new laws increase significantly the systemic threat to rule of law as identified in the previous Recommendations. The Recommendation underlines that the dismissal of Supreme Court judges, their possible reappointment and other measures contained in the law on the Supreme Court would very seriously aggravate the systemic threat to the rule of law. Among the recommended action, the Commission recommends that the Polish authorities ensure that the two laws on the Supreme Court and on the National Council for the Judiciary do not enter into force and that any justice reform uphold the rule of law and comply with EU law and with European standards on the independence of the judiciary and is prepared in close cooperation with the judiciary and all interested parties. The Commission also asked the Polish authorities not to take any measure to dismiss or force the retirement of the Supreme Courts judges as these measures will very seriously aggravate the systemic threat to the rule of law. The Commission stated that should the Polish authorities take any measure of this kind, it would stand ready to immediately activate Article 7(1) TEU.

(10)

The Commission invited the Polish Government to solve the problems identified in this Recommendation within one month of receipt of the Recommendation.

(11)

On 31 July 2017, the Sejm was formally notified about the decision of the President of the Republic to veto the law amending the Law on National Council for the Judiciary and the Law on the Supreme Court.

(12)

On 4 August and on 16 August 2017 the Polish Government wrote to the Commission with a request for clarifications to its Recommendation of 26 July 2017, to which the Commission responded by letters of 8 August and 21 August 2017 respectively.

(13)

On 28 August 2017, the Polish Government sent a reply to the Recommendation of 26 July 2017. The reply disagreed with all the issues raised in the Recommendation and did not announce any new action to address the concerns identified by the Commission.

(14)

On 30 August 2017, the opinion of the OSCE Office for Democratic Institutions and Human Rights (ODIHR) concluded that the suspended law on the Supreme Court does not comply with international standards on judicial independence (5).

(15)

On 11 September 2017, the Polish Government initiated a campaign named ‘Fair Courts’ aimed at gaining social support for the ongoing judicial reform. The National Council for the Judiciary and ordinary courts published several statements rectifying allegations directed against courts, judges and the Council during the campaign.

(16)

On 11 September 2017, the Constitutional Tribunal in a panel of five judges declared the unconstitutionality of certain provisions of the Code of Civil Procedure allowing ordinary courts and the Supreme Court to assess the legality of the appointment of the President and the Vice-President of the Tribunal (6).

(17)

On 13 September 2017, the Minister of Justice started exercising the powers to dismiss court presidents and vice-presidents pursuant to the new law on Ordinary Courts Organisation.

(18)

On 15 September and 18 October 2017, the National Council for the Judiciary criticised the Minister of Justice's decisions to dismiss court presidents. The Council indicated that such an arbitrary power of the Minister of Justice violates the constitutional principle of independence of courts and might adversely affect the impartiality of judges.

(19)

On 15 September 2017, the Sejm appointed a person to an already occupied position of the Constitutional Tribunal, and the President of the Republic accepted the oath on 18 September 2017.

(20)

On 15 September 2017 the Sejm adopted the law on the National Freedom Institute – Centre for Civil Society Development which centralises the distribution of funds including for civil society organisations.

(21)

On 22 September 2017, the United Nations Human Rights Council discussed the reports on Poland submitted within the framework of the third periodic review which contain recommendations on judicial independence and the rule of law.

(22)

On 25 September 2017, the Commission informed the Council on the situation of the rule of law in Poland. There was broad agreement on the fact that the Rule of Law is a common interest and a common responsibility and on the need for Poland and the Commission to engage in a dialogue in order to find a solution.

(23)

On 26 September 2017, the President of the Republic transmitted to the Sejm two new draft laws on the Supreme Court and on the National Council for the Judiciary.

(24)

On 3 October 2017, the Sejm sent the two presidential draft laws on the Supreme Court and the National Council for Judiciary for consultation to relevant stakeholders, including the Ombudsman, the Supreme Court and the National Council for the Judiciary.

(25)

On 6 and 25 October 2017, the Supreme Court published its opinions on the two new draft laws on the Supreme Court and the National Council for the Judiciary. The opinions consider that the draft law on the Supreme Court would substantially curb its independence and that the draft law on the Council for the Judiciary cannot be reconciled with the concept of a democratic state governed by the rule of law.

(26)

On 11 October 2017, the Parliamentary Assembly of the Council of Europe adopted a resolution on new threats to the rule of law in Council of Europe member States, expressing concerns also about developments in Poland, which put at risk respect for the rule of law, and, in particular, the independence of the judiciary and the principle of the separation of powers (7).

(27)

On 13 October 2017, the European Network of Councils for the Judiciary (ENCJ) issued an opinion (8) on the new draft law on the National Council for the Judiciary, underlining its inconsistency with European standards on Councils for the Judiciary.

(28)

On 23 October 2017, following the third cycle of the Universal Periodic Review of Poland, the UN High Commissioner for Human Rights requested that the Polish authorities accept the UN recommendations on upholding judicial independence.

(29)

On 24 October 2017, the Constitutional Tribunal in a panel including two unlawfully appointed judges declared the unconstitutionality of provisions of the law on the Supreme Court, on the basis of which, inter alia, the current First President of the Supreme Court had been appointed.

(30)

On 24 October 2017, the Constitutional Tribunal, in a panel comprising two unlawfully appointed judges, declared the constitutionality of provisions of the three laws on the Constitutional Tribunal of December 2016, including the provisions on the basis of which the two unlawfully appointed judges adjudicating in the case had been allowed to adjudicate in the Constitutional Tribunal. The motion of the Polish Ombudsman on recusal of the two unlawfully appointed judges from this case had been rejected by the Constitutional Tribunal.

(31)

On 27 October 2017, the United Nations Special Rapporteur for the Independence of Judges and Lawyers, Mr Diego García-Sayán, presented his preliminary observations (9), according to which the two draft laws on the Supreme Court and the National Council for the Judiciary raise a series of concerns as regards judicial independence.

(32)

On 31 October 2017, the National Council of the Judiciary adopted an opinion on the new draft law on the National Council for the Judiciary presented by the President of the Republic. The Council observes that the draft law is fundamentally inconsistent with the Polish Constitution by providing the Sejm with the power to appoint judges-members of the Council and by prematurely terminating constitutionally protected terms of office of the current judges-members of the Council.

(33)

On 10 November 2017, the Consultative Council of European Judges (CCJE) adopted a statement raising concerns on the judicial independence in Poland (10).

(34)

On 11 November 2017, the Ombudsman sent a letter to the President of the Republic comprising an assessment of the two new draft laws on the Supreme Court and on the National Council for the Judiciary and recommending that they should not be adopted as they would not guarantee that the judicial branch will remain independent from the executive branch and that citizens will be able to exercise their constitutional right to have access to an independent court.

(35)

On 13 November 2017, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) adopted an opinion on the new draft law on the Supreme Court asserting that the reviewed provisions are incompatible with international standards on judicial independence (11).

(36)

On 15 November 2017, the European Parliament adopted a resolution on the situation of the rule of law and democracy in Poland, expressing support for the Rule of Law Recommendations issued by the Commission, as well as for the infringement proceedings, and considering that the current situation in Poland represents a clear risk of a serious breach of the values referred to in Article 2 of the TEU (12).

(37)

On 24 November 2017, the Council of Bars and Law Societies of Europe (CCBE) called on Polish authorities not to adopt the two draft laws on the Supreme Court and on the National Council for the Judiciary as they could undermine the separation of powers guaranteed by the Polish constitution (13). On 29 November 2017, the Organisation of Judges ‘Iustitia’, the Helsinki Foundation for Human Rights and Amnesty International issued a joint statement criticising the legislative procedure on the two presidential draft laws.

(38)

On 5 December 2017 the European Network of Councils for the Judiciary (ENCJ) adopted an opinion criticising the draft law on the National Council for the Judiciary for not respecting the ENCJ's standards (14).

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On 8 December 2017, the Venice Commission, at the request of the Parliamentary Assembly of the Council of Europe, adopted an opinion on the draft law on the National Council for the judiciary, the draft law on the Supreme Court, and the law on the Ordinary Courts Organisation, as well as opinion on the law on the public prosecutor's office (15). The Venice Commission has come to the conclusion that the law and the draft laws, especially taken together and seen in the context of the 2016 law on the public prosecutor's office, enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a grave threat to the judicial independence as a key element of the rule of law. It calls on the President of the Republic to withdraw his proposals and start a dialogue before the procedure of legislation continues. It also urges the Polish Parliament to reconsider the recent amendments to the law on Ordinary Courts Organisation.

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On 8 December 2017, the Council of Europe Commissioner for Human Rights issued a statement regretting the adoption by the Sejm of the laws on the Supreme Court and on the National Council for the Judiciary which would further undermine the independence of the judiciary.

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On 8 December 2017, the two draft laws were adopted by the Sejm. On 15 December 2017, the two laws were approved by the Senate.