On Thursday, the Court of Justice of the European Union ruled that Poland's controversial disciplinary procedure for judges violates the European legal order. The judgment comes only a day after the Polish Constitutional Tribunal challenged the primacy of EU law.
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"The Disciplinary Chamber of the Supreme Court does not provide all the guarantees of impartiality and independence, and is not protected from the direct or indirect influence of the Polish legislative and executive" – the Court of Justice of the European Union ruled on Thursday. - In adopting the new disciplinary regime applicable to Judges of the Supreme Court, Poland has failed to fulfill its obligations under EU law- the Court declared.

- In short, the CJEU judgment means that the Disciplinary Chamber should cease its activity immediately. Its future decisions and the ones already issued should become invisible to other courts. As for the pending cases, the discontinuance of these proceedings should be requested - says Maciej Taborowski, Ph.D., Poland’s Deputy Commissioner for Human Rights and European law expert.

The judgment comes after a complaint brought by the European Commission in 2019. The EU Court on Thursday found its allegations to be justified. The Commission sued Poland for adopting a 2017 law initiated by the President. The act introduced a new procedure for disciplining judges and was one of the key elements of the ruling party’s judicial overhaul. Ostensibly, the changes were supposed to help fight pathologies in the judiciary system. In practice, however, they have undermined judicial independence. The CJEU declared that by adopting the new disciplinary regime for judges Poland violated EU law.

CJEU: the independence of the National Council of the Judiciary raises doubts

The disputed 2017 law created a new body- the Disciplinary Chamber of the Supreme Court- with the power to discipline judges. President Andrzej Duda staffed the Chamber entirely with people appointed by the politicized National Council of the Judiciary (NCJ). In this way, former prosecutors controlled by the Minister of Justice Zbigniew Ziobro and lawyers associated with the ruling Law and Justice party came to sit on the bench.  

In its ruling, the CJEU noted that the appointments to the Disciplinary Chamber depended heavily on the current National Council of the Judiciary (NCJ), whose independence "may raise reasonable doubts."

"The National Council of the Judiciary has been significantly reorganized by the Polish executive and legislative" – the Court pointed out. In 2018, PiS and Andrzej Duda terminated the constitutionally defined term of the NCJ members. The newly-appointed candidates were elected by the Sejm, where the ruling party holds a majority. The NCJ, in turn, has the power to select nominees later appointed by the president.

- The Disciplinary Chamber is made up exclusively of new judges who were not already sitting within the Supreme Court. These new judges benefit from, inter alia, a very high level of remuneration and a particularly high degree of organizational, functional, and financial autonomy- the CJEU enumerated. These circumstances also influenced the ruling.

Judges cannot be prosecuted for the content of their judicial decisions

All this led to the conclusion that Poland has violated Article 19 of the Treaty on the European Union. Under this provision, EU countries must ensure effective judicial protection for citizens in all areas covered by European law.

Such protection, of course, cannot be guaranteed without an independent judiciary, and the independence of Polish judges is directly affected by the Disciplinary Chamber. The body can decide on disciplinary proceedings against judges and ultimately even remove them.

Further violations of Article 19 are due to the fact that the Polish disciplinary regime allows to discipline judges for the content of their judicial decisions. "It could be used in order to exert political control over judicial decisions or to exert pressure on judges with a view to influencing their decisions, and could undermine the independence of the courts concerned" - the CJEU has found.

It also declared that "Poland has failed to guarantee respect for the rights of defense of accused judges, thereby undermining their independence".

One of the reasons for that is the fact that a disciplinary court may conduct proceedings despite the excused absence of a judge or his or her defense attorney. Polish judges have repeatedly warned of the "inquisitional" character of the proceedings under the new disciplinary regime.

Finally, the CJEU said Poland had violated Article 267 of the Treaty on the Functioning of the EU. This provision guarantees courts the right to refer questions on the interpretation of EU law to the CJEU.

"National judges are exposed to disciplinary proceedings as a result of the fact that they have decided to make a reference for a preliminary ruling to the Court of Justice" - The Court noted. "This violates their right to put questions to the Court, as well as the system of judicial cooperation between the national courts and the Court of Justice established by the Treaties in order to secure uniformity in the interpretation of EU law and to ensure the full effect of that law".

Is PiS going to respect the CJEU decision?

- What we have here is a politically biased verdict ordered by the European Commission, based on an effort to segregate countries into better and worse ones- said the Minister of Justice Zbigniew Ziobro commenting on the CJEU ruling.

- Poland has the same rights as any other EU member state. Germany, Spain, and other countries have an analogous system of electing judges. Their systems are even more centralized and politically based-  Ziobro added. - Poland does not, did not, and will not consent to segregate countries according to extra-legal, political criteria that blatantly invoke colonial connotations- he concluded.

Asked whether the government would respect the latest ruling of the EU Court and the Disciplinary Chamber would cease to operate, the Deputy Speaker of the Sejm Ryszard Terlecki said: "We have our own constitution and our own laws".

"When the Court finds that a member state has breached its obligations, it is the state’s duty to take all measures necessary to ensure that the breach ceases" – the CJEU reiterated. In practice, this would mean changing the rules of the current disciplinary regime for judges. "This is the end of the disciplinary chamber" - comments Mikołaj Małecki, Ph.D., a criminal law expert from the Jagiellonian University.

On a collision course with the EU

The Thursday ruling is the third time in recent years that the CJEU has found that the Polish government’s judicial policies violate EU law.

It is unclear how the ruling party will react this time, as Prime Minister Mateusz Morawiecki wants the government-controlled Constitutional Tribunal to address the CJEU rulings.

Morawiecki is asking the Constitutional Court to assess the constitutionality of EU regulations, including Article 19 of the CJEU on effective judicial protection. The prime minister is challenging the CJEU’s interpretation of the EU law with regards to decisions on the Polish judiciary. The case was supposed to be decided on Thursday, but the Tribunal postponed it until early August. It also acceded to the Human Rights Commissioner’s request that the full panel of the Constitutional Tribunal hears the case.

Should PiS chose to ignore implementing the CJEU ruling, Poland will be subject to heavy fines.

On Wednesday, the contested Constitutional Court provided the Polish government with an excuse for not complying with CJEU rulings. In an unprecedented decision, the Tribunal decided that the EU measures affecting the country's judiciary are invalid, thus questioning the primacy of EU law.

Back in 2007, when the late president Lech Kaczyński signed the Treaty of Lisbon, the ruling Law and Justice party boasted great success. According to the Treaty’s Declaration no. 17 concerning legal primacy: "the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States".

- Today, the Constitutional Tribunal controlled by the Law and Justice party states that Prime Minister Kaczyński and the late President Kaczyński acted contrary to the Polish constitution by signing the Treaty of Lisbon- says the Deputy Speaker of the Senate Michał Kamiński, adding: - It is a fact that back then Zbigniew Ziobro said the same things he says now. And it is also a fact that back then Jarosław Kaczyński said something completely different than he says now.


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