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In early January, Mateusz Morawiecki's government rejected all of the European Commission's arguments in a formal "letter of formal notice," so the College of Commissioners decided on Wednesday to move to the second stage of the disciplinary proceedings against the breach of the EU law.

Brussels is showing that all actions of the Supreme Court's Disciplinary Chamber against judges, and not only those narrowly defined as being "disciplinary" -  violate EU rules. The European Commission wants to make sure that no other judges will face the fate as Igor Tuleya and Beata Morawiec, who have been suspended from the bench.

- For judges, the mere prospect of proceedings being brought against them by a body whose independence is not guaranteed has a "chilling effect" on their independence," Commissioner Dubravka Šuica explained

She also stated that the Commission is closely following new developments in Poland concerning the reassignment of prosecutors to remote workplaces (which critics of the government see as a punishment for their independence).

- We have previously expressed our concern that Justice Minister Zbigniew Ziobro is also the Prosecutor General," Commissioner Šuica clarified.

If Poland does not comply with Wednesday's decision by the College of Commissioners decision within a month, the European Commission will decide when and how to refer the next rule of law case against Poland to the Court of Justice of the EU.

Already back in autumn 2019, Berlaymont announced that the new Polish disciplinary regime for judges threatens judicial independence in its entirety, inter alia due to the improper formation of the Disciplinary Chamber created from scratch with the involvement of the new National Council of the Judiciary composed solely of judges appointed by the ruling majority.

In April 2020, the CJEU ordered an interim suspension of the Disciplinary Chamber pending a full verdict on the disciplinary system, which is expected in several months.

Małgorzata Gersdorf, whose term as First President of the Supreme Court was coming to an end around that time, saw the interim measure of the CJEU as an clear order to fully suspend all activities of the Disciplinary Chamber, but her Law and Justice-appointed successors have changed that decision. And although the Chamber has not yet conducted disciplinary proceedings against any judges, it has already lifted the immunity of judges Igor Tuleya and Beata Morawiec using other procedures.

Why did the Commission wait for so long?

The Commission's long lack of reaction to this legal ploy on the part of the Disciplinary Chamber provoked sharp criticism against Ursula von der Leyen, among others from multiple MEPs, judges' organizations and groups defending the rule of law.

Since last autumn, open letters have been written urging the Commission not to give in to Warsaw's restrictive interpretation of the interim measure and to urgently ask the CJEU to impose a financial penalty on Poland, which would be increasing with every day that the court measure remained void.

For a long time, however, Brussels chose only to send subsequent requests for explanations to Warsaw. To this day, it is unclear how much of this was political postponement of tensions with Warsaw and how much was due to real doubts of the Commission's lawyers whether the request for a fine for Poland would be assessed positively by the CJEU.

In the end, the European Commission decided in early December to open

another front in its proceedings against Poland, resulting in Wednesday's "reasoned opinion" by the College of Commissioners

If Poland rejects the opinion, the case will most likely be included in a joint complaint to the CJEU along with the entire "muzzling law" that forbids judges from prioritizing the EU legal order over Polish legislation, since in December 2020 the government of Morawiecki rejected any objections from Brussels on this issue as well.

Council of Europe adopts a resolution against Poland

On Tuesday, the Parliamentary Assembly of the Council of Europe, which consists of delegates from the parliaments of the member countries,  condemned "the campaign of intimidation conducted by Polish authorities against some critical judges and against the judiciary in general." in its resolution.

It also called on Warsaw, among other things, to review changes made to the functioning of the Polish Constitutional Tribunal and the Supreme Court's Disciplinary Chamber, as well as to return to the previous system of appointing members of the National Council of the Judiciary.


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