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On Wednesday, the main hearing before the CJEU on the European Commission's complaint against the disciplinary rules for judges and the activities of the Disciplinary Chamber of the Polish Supreme Court took place.
On March 18 2021, the Advocate General of the CJEU will issue a written recommendation, which will be the basis for the court's judgment.
In my opinion, this is a groundbreaking case. In addition to the European Commission, Belgium, Denmark, the Netherlands, Sweden and Finland joined the proceedings against Poland.
Each Member State has the right to join the proceedings in any case before the CJEU if it considers that it is of particular importance for the EU law. However, such a step is rarely taken by the countries, and it is particularly unusual for five countries to join, as is the case this time. I read this as an expression of Europe's concern for what is currently happening in Poland.
The speeches before the Court were very strong and firm. Many of them had the same tone - that in the field of the rule of law, the European Union cannot settle for any compromises. All states agreed that the activity of the Disciplinary Chamber violates judicial independence and runs contrary to the principles of the EU rule of law. They also stated that judicial reform in Poland is not transparent. They believe that changes in the justice system are exploited politically.
EU Member States are closely following what is happening in Poland and were very well prepared for the meeting. They have sympathy for Poles and want to help us. The tireless grassroot work of Polish NGOs and the legal community is visible and effective in Europe.
The deputy minister of justice Anna Dalkowska, representing the Polish state, repeated the government's usual line of defence. She argued that the Polish judiciary requires decommunization and that reforms are expected by society. She also stated that in the current Polish legal system, judicial independence is mainly threatened by the rotten comradery pervasive within the judicial profession, and not by politics.
It is difficult to say what position the Advocate Generale will take on March 18. However, after the questions I heard from the CJEU judges today, I am optimistic. They asked, among other things, why the Disciplinary Chamber continues to rule, when in April - at the request of the Commission - the CJEU impose an interim measure suspending it for the duration of the court proceedings.
Nevertheless, I fear that even if the Court in its judgment admits that the new system of disciplinary measures undermines the independence of judges in Poland and does not provide the necessary guarantees to protect judges from political control, the government will not withdraw from the reform. This has been the case so far.
In the long run, this would inevitably result in financial penalties being imposed on Poland. The CJEU uses them as a means of mobilizing the member states' governments to comply with the ruling. Furthermore, judges suspended by the Disciplinary Chamber will be able to sue for damages. The final cost of these reforms will be borne by each of us.
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