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On Wednesday, the European Commission decided to yet again refer Poland to the European Court of Justice. The decision, deemed too important to be postponed until the next summit in mid-April, has been made via a written urgency procedure.

- I am deeply concerned about the continued actions that undermine judicial independence in Poland. Despite the rulings of the European Court of Justice and our numerous attempts to remedy the situation, the pressure on Polish judges continues to increase and their independence is under constant erosion. This is why we have decided to again refer Poland to the European Court of Justice and ask for interim measures-  said Vera Jourová, the Vice President of the European Commission.

What does the EU Commission ask for?

The Commission’s request for interim measures (i.e. temporarily preventing the Polish government from implementing the contested national legislation before the CJEU can issue its final verdict) includes a request to suspend the provisions empowering the Disciplinary Chamber of the Polish Supreme Court to decide on requests for the lifting of judicial immunity, as well as on matters of employment, social security and retirement of Supreme Court judges.

Moreover, the Commission has asked the Court to suspend the effects of decisions already taken by the Disciplinary Chamber of the Supreme Court on the lifting of judicial immunity.

The request also includes the suspension of the provisions preventing Polish judges from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the Court of Justice as well as the provisions qualifying action taken by judges in that respect as disciplinary offenses.

-We expect the Chamber to stop its operations immediately and we request the suspension of its decisions already taken, especially when it comes to the lifting of judicial immunity Polish judges are also European judges; they apply EU law and contribute to the mutual trust on which Europe is built– VP Jourová said on Wednesday.

The case of Judge Igor Tuleya or: a race against time

Brussels is hoping for a CJEU decision on interim measures as early as mid-April. The issue is a race against time, especially in the case of Judge Igor Tuleya.

The Disciplinary Chamber of Poland’s Supreme Court had planned on a ruling on April 21 to decide whether the judge should be seized by the police and brought to testify (Mr. Tuleya has been refusing to attend the hearings, calling the actions taken by the prosecution unlawful). One day later, the Chamber would deal with the issue of lifting the immunity of the president of the Labour and Social Insurance Chamber of the Supreme Court, Judge Józef Iwulski, in order to prevent the CJEU from dealing with preliminary questions his chamber had issued.

The contested Disciplinary Chamber had already decided to strip judge Igor Tulea of his judicial immunity in the autumn of 2020 (he is being persecuted for allowing the media to record the justification of his verdict concerning irregularities in the 2016 parliamentary vote).

Citing, among other things, the case law of the CJEU, the Warsaw Court of Appeals had recently ruled that the decision to strip the judge of his immunity had no legal power because the Chamber is not an independent court. The decision to detain Mr. Tuleya could therefore lead to a confrontation between the Disciplinary Chamber and the part of the judiciary that relies on CJEU judgments.

A few days ago, the heads of five factions in the European Parliament- the center-right European People's Party, the center-left, Renew Europe, the Greens, and the far-left GUE/NGL group- have urged Ursula von der Leyen, the President of the European Commission, to take immediate action regarding the Disciplinary Chamber.

- One of the fundamental values of the European Union is at stake: the Rule of Law. The destruction of this fundamental value in one EU Member State might result in the emergence and acceptance of such mechanisms in other EU Member States, which may eventually end in the collapse of the Union, which is, after all, a Union of law, based on respect for common principles and mutual trust.  result in the collapse of our Community, which is a legal union based on respect for common values and common trust. Expecting your urgent and decisive reaction- reads their letter to von der Leyen.

Moreover, in a separate letter addressed to the EU Commission, a group of NGOs and legal experts not only called to bring Poland before the CJEU but also requested the court to order interim measures, including a full ad hoc suspension of the Disciplinary Chamber before the CJEU can issue its final verdict.

On a collision course with Brussels

The Commission launched an infringement procedure against Poland already in April 2020. Its Wednesday decision takes the procedure to yet another round.

So far, Mateusz Morawiecki's government has regularly rejected any objections from Brussels regarding the so-called "muzzle law". Moreover, in December 2020, the Commission extended the infringement procedure calling on Poland to suspend all the Supreme Court’s disciplinary actions. While after CJEU ordered an interim measure on April 2020 Poland temporarily froze the actions of the Disciplinary Chamber, it continued to persecute and suspend judges including Igor Tuleya, Beata Morawiec, and Paweł Juszczyszyn. What is more, the court is still conducting proceedings aimed at stripping independent judges of their immunity.

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