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During yesterday’s discussion in the European Parliament, Prime Minister Mateusz Morawiecki announced that the contentious Disciplinary Chamber of Poland’s Supreme Court will be dismantled. Many, including the former head of the EU Council Donald Tusk, appear to read the promise as a sign that the ruling camp has finally cornered itself on the rule of law issue and will now abide by the key judgment of the Court of Justice of the European Union. Such a conclusion, however, would be premature.
By itself, dismantling the Disciplinary Chamber means very little – both in terms of the state of the rule of law in Poland, and the Polish government’s acknowledgment of the primacy of EU law. If the European Commission were to declare this decision as a success, it would be a Pyrrhic victory at best.
The most important thing for the European Union and Poland today is for the Polish government to implement two key decisions issued by the CJEU on July 14 and 15. The first one concerns the necessity to suspend the application of the provisions of the so-called "muzzle law" until the proceedings conducted in this regard before the CJEU are resolved. The second is a final judgment on Poland’s disciplinary regime for judges, which the CJEU found to be incompatible with EU law.
Full implementation of both of these CJEU decisions would mean a great step towards restoring the independence of Poland’s justice system. But as long as the Polish government continues to ignore these judgments, there can be no question of guaranteeing our citizens their right to "effective legal protection" stipulated by EU law. And a failure to respect such crucial CJEU decisions will surely undermine the court’s authority. Thus, it wouldn’t be an exaggeration to say that the stakes are enormous.
Poland’s disciplinary regime for judges needs a total overhaul
The President of the European Commission, Ursula von der Leyen, has made it clear that the Commission’s approval for Poland’s National Recovery and Resilience Plan will be conditional on the implementation of the CJEU judgments. It is hard to imagine that the EU would hand over billions to a country that has just abolished the independence of its judiciary. If Poland fails to comply with the CJEU ruling after all (the deadline is November 7), the Commission could also immediately ask the Court to impose a large financial penalty on the Polish government for breaching EU treaties.
Not surprisingly, the Law and Justice party government will want to avoid the disastrous scenario it has consciously provoked with its actions. But the only outcome the Commission and the CJEU should accept is a full implementation of the judgments, not a partial or a selective one. From this point of view, dismantling the Disciplinary Chamber is insufficient.
PiS will want to formally dissolve the Disciplinary Chamber, but then move its members to other chambers of the Supreme Court (e.g. the Criminal Chamber), where they could continue to adjudicate, perhaps also in matters concerning disciplinary proceedings. This wouldn’t be an implementation of the CJEU ruling. It’d be its negation.
The court has also found several other key elements of the Polish justice system to be inconsistent with EU law. The CJEU ruled that judges cannot be penalized for asking preliminary questions or the content of their rulings (which is possible under the still applicable "muzzle law"); disciplinary cases must be dealt with by a lawful court; and disciplinary procedures must fully guarantee the right to defense. Existing decisions of the Disciplinary Chamber must be reversed.
In other words, tinkering with the Disciplinary Chamber is not enough. To carry out the judgments and return to the rule of law, the Polish government must completely overhaul the disciplinary regime for judges and do away with all the provisions that trample the country’s judicial independence.
Opening the door for European disintegration
We’ve come to a crucial point for both Poland and the European Union. The dispute between the Law and Justice party government and the EU institutions is not about the primacy of EU law over national law. Rather, it is about the fundamental question of whether the EU can allow a system that abolishes the principle of judicial independence- a principle that is fundamental to democracy and the rule of law- to function within its borders.
Allowing that to happen would open the door for authoritarian regimes, and, consequently, lead to the disintegration of the European community. The current escalation, for which the Polish government is unfortunately responsible, is also an opportunity to resolve this issue in a way that will prevent such a scenario.
Thus, it is also in the interest of Polish citizens that the European Commission and other EU institutions rise to the occasion. If the Polish government fails to fully implement the July CJEU judgments, the Commission should immediately ask the CJEU to impose sweeping financial sanctions to prevent further violations.
Full implementation of the judgments, or reinstating the rule of law, to put it non-legalese terms, should be a condition for accepting the Polish National Recovery Plan. Nobody in the EU wants to take money away from Poland. Any Polish government that respects the fundamental principles of the rule of law will receive the funds - now or in the very near future. But in the current situation, after the Prime Minister's speech in the European Parliament that has left us with no illusions about the intentions of the Polish government, a rotten compromise would only endanger the future of Polish democracy and the European project as a whole.
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