The Court of Justice of the European Union (CJEU) has announced its judgement regarding the independence of Poland’s new Disciplinary Chamber of the Supreme Court.
The CJEU ruled that Poland’s Supreme Court itself must ascertain the independence of the Disciplinary Chamber and whether it can rule on disputes concerning the retirement of Supreme Court judges, or whether such cases must be examined by another court in order to ensure independence.
The new Disciplinary Chamber of the Polish Supreme Court can only be competent to rule on cases relating to the retirement of judges of the Supreme Court if its independence and impartiality is guaranteed https://t.co/BXuldkaxWx
— EU Court of Justice (@EUCourtPress) November 19, 2019
The judgement is a response to three combined cases, the latest in a succession of CJEU verdicts on the Law and Justice (PiS) government’s efforts to make what it argues are much-needed changes to Poland’s judiciary.
The decision follows a referral from the Supreme Court itself, which asked the CJEU for its view on the independence of the new Disciplinary Chamber.
Doubts surrounded the fact that the Chamber’s judges had been elected by the newly constituted National Council of the Judiciary (KRS). The KRS itself is now mostly composed of members appointed by the parliament in 2018 as a result of another of the government’s controversial judicial reforms.
In the decision, the CJEU noted various factors that the Supreme Court should take into account when considering the independence of the Disciplinary Chamber. In particular, it highlighted the importance of ascertaining whether the KRS is fully independent from political interference.
The CJEU observed that even if individual factors might not threaten the Chamber’s independence in isolation, the Supreme Court should consider their combined effect.
In June, the advocate general of the CJEU Evgeni Tanchev issued a non-binding opinion that the Disciplinary Chamber “‘does not satisfy the requirements of judicial independence under EU law”, and that the new KRS is potentially “compromised” by influence from legislative authorities.
Speaking in an interview with the Polish Press Agency (PAP) before the CJEU verdict, Polish prime minister Mateusz Morawiecki said: “The EU is obliged to respect the diverse systems and traditions of the various countries”. He added: “Unfortunately the Tribunal has recently begun [. . .] to make far-reaching interpretations, in practice awarding itself competences it does not have in the treaties”.
According to Professor Laurent Pech, an expert on European law from Middlesex University, Morawiecki “is playing with fire. If he indeed ignores the verdict in such a fundamental issue for the legal order in the EU, he will open a Pandora’s box, and will be personally responsible”.
Today’s CJEU decision does not appear to impose particular action on the Polish government, but rather it leaves further determinations to Poland’s own Supreme Court.
Ben Koschalka is a translator and the assistant editor at Notes from Poland. Originally from Britain, he has lived in Kraków since 2005.