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The price of Poland’s disregard for the rule of law is rapidly rising. On Wednesday, vice-president of the Court of Justice of the European Union, Lars Bay Larsen, granted the Commission’s request to fine Poland over undermining judicial independence. More specifically, Poland was ordered to pay a penalty of 1 million euros for each day it fails to implement the July CJEU ruling telling it to, among other things, suspend the illegal disciplinary chamber- a key element of the ruling camp’s highly contentious disciplinary regime for judges.
Poland is obliged to pay the penalty counting from the day it received the order.
Irreparable damage to the EU legal order
The July 14 interim measures were intended to prevent "serious and irreparable damage to the EU legal order and the values on which the Union is founded, in particular, the value of the rule of law".
Rulings handed down by the Disciplinary Chamber of the Polish Supreme Court, which, as the CJEU has found in another July judgment, is not independent and can thus lead to exactly such consequences. It therefore fails to meet the Union’s key requirement for courts.
Under the interim measures issued by the EU Court, what the Polish government needs to suspend are the effects of resolutions in which the contentious Chamber lifted the immunity of certain judges, as well as certain provisions of the so-called "muzzle law" introduced by the ruling Law and Justice party.
The Disciplinary Chamber was fully staffed by President Andrzej Duda with candidates appointed by the politicized National Council of the Judiciary. Such individuals - including former prosecutors closely associated with the Minister of Justice Zbigniew Ziobro - now decide which Polish judges should be prosecuted.
Tensions inside the governing coalition
The closure of the Disciplinary Chamber was already announced in the summer by the head of the Law and Justice party Jarosław Kaczyński and Prime Minister Mateusz Morawiecki. Yet, ruling camp politicians refuse to reveal why no legal steps have been taken to turn these verbal promises into reality.
At the same time, the ruling camp has recently announced further plans for changing the structure of the judicial system: flattening the judiciary structure from three tiers to two (district courts are to become circuit courts), and significantly slimming down the Supreme Court, along with taking away much of its powers.
However, according to unofficial information from our sources, PM Morawiecki had to convince Brussels that there was no majority in the Parliament to dissolve the Disciplinary Chamber. Many saw this as a smokescreen in the row with the European Commission, but our sources confirm that there is indeed a problem.
Resistance allegedly comes from the junior coalition partner United Poland (Solidarna Polska), led by the Minister of Justice and Prosecutor General Zbigniew Ziobro, which is ready to sacrifice the Chamber, but only on the condition of a radical overhaul in the courts at every level. As the Minister of Justice, Ziobro wants to pacify judicial resistance, while PM Morawiecki wants to play games with Brussels to convince it to greenlight Poland’s National Recovery Fund. - The Prime Minister should quietly do everything to unblock the EU funds, but he should do it in a way that the voters will not realize that he is caving in to pressure from Brussels - we hear from our sources.
The changes in the judicial structure that Ziobro is aiming for would further deepen the conflict with the European Commission.
Michał Woś, a close associate of the Minister of Justice, refused to say whether his party would vote for the closure of the Chamber itself. - I am glad that it will now be possible to carry out this broad reform of the justice system, if there is a green light, that is. This will involve wide-ranging changes in the Supreme Court, perhaps including the disciplinary model- Mr Woś told us.
CJEU: Intentions are not enough
Before the CJEU fined Poland with a daily penalty of 1 million euros, the PiS government filed a request to overturn the CJEU's July order. Yet, the Court's vice-president dismissed the request in early October.
"The expressed intention to adopt, within a year, a series of measures intended to reform the Polish judicial system is not such as to prevent, in the absence of immediate action by Poland, the occurrence of serious and irreparable harm to the legal order of the European Union" – reads Lars Bay Larsen’s justification for imposing the penalty.
"In the light of the circumstances of the case and Poland’s ability to pay, the Vice-President has ordered Poland to pay the Commission a periodic penalty payment of 1 000 000 euros per day" – he added. The penalty is meant to "dissuade" the Polish government from further non-compliance with the CJEU order.
"This is yet another stage of the operation to strip Poland of its influence on the legal system of our country, it is usurpation and blackmail" - Sebastian Kaleta, the deputy Minister of Justice wrote, commented on the CJEU’s Wednesday ruling.
Warsaw justifies its refusal to implement the interim measures by citing the ruling of the politically-controlled Constitutional Tribunal. In July, the court ruled that certain provisions of EU treaties are unconstitutional and Poland cannot abide by CJEU interim measures interfering in its judicial system. Julia Przyłębska, the head of the Tribunal, was seen at the Parliament on Wednesday - visiting Speaker Elżbieta Witek.
"The CJEU completely disregards and ignores the Polish constitution and the judgments of the Constitutional Tribunal. It acts beyond its competencies and abuses the institution of fines and interim measures" –believes Deputy Minister Kaleta.
Another Deputy Justice Minister, Marcin Romanowski (United Poland) also commented on the CJEU’s decision on Twitter: "(Non)judgments of the CJEU interfering with the competences of the Polish authorities must be ignored. Unelected and undemocratic EU bodies will not put themselves above Polish society and block reforms against its democratic will. Maybe withholding contributions will talk some sense into the Eurocrats?".
"The Polish government has spoken publicly about the need to make changes in this area to ensure it functions effectively. Penalties and blackmail against our country is not the right path. This is not the model in which the European Union should function - a union of sovereign states"- Piotr Müller, the government’s spokesman and close associate of the Prime Minister, Tweeted.
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