“Member states may reform their justice system, but they must do so without violating EU treaties,” said European Commission vice president Věra Jourová today, announcing the launch of further infringement proceedings against Poland.
The move comes in response to the introduction in February of a tough new disciplinary regime for judges, which can see them fired for opposing the government’s judicial reforms. The system undermines judicial independence and violates the supremacy of European law, according to the commission.
“There is a clear risk that…the disciplinary system for judges can be used for political control over the content of judicial decisions,” said Jourová, quoted by TVN24.
“This is a European matter because Polish courts apply European law,” she continued. “Judges from other countries must have confidence that Polish judges are acting independently. This mutual trust is the foundation of our single market.”
Poland now has a two-month period in which to respond to the commission’s concerns. If the issue remains unresolved, the commission can refer it to the Court of Justice of the European Union.
The latest move by Brussels against the Polish government’s judicial overhaul comes in response to a new disciplinary regime for judges. The measures, passed by parliament in December and signed into law by the president in February, allow judges who refuse to accept the validity of judicial reforms to be punished, including the possibility to fire them.
The measures, nicknamed the “muzzle law” by the opposition, prompted mass protests in Poland, which were joined by judges from around Europe. One Polish judge described the legislation as akin to “the imposition of martial law in the judiciary”. In response, supporters of the government organised their own demonstration in favour of judicial reform.
In an urgent opinion issued in January, the Venice Commission, an advisory body of the Council of Europe, warned that the disciplinary regime would “diminish judicial independence and put Polish judges into the impossible situation of having to face disciplinary proceedings for decisions required by the European Court of Human Rights, the law of the European Union, and other international instruments”.
On the same day, the European Parliament voted by a large majority to pass a resolution expressing concern at the situation regarding the rule of law in Poland, including the latest proposed disciplinary measures. Jourová herself visited Warsaw soon after, seeking to strike a conciliatory tone.
But, with the Polish government refusing to back down, the commission has pushed ahead with infringement proceedings. In January, it also asked the requested interim measures suspending the disciplinary system of Poland’s Supreme Court until a final judgement on it is made.
That request was approved by the Court of Justice of the European Union earlier this month. It found that there were grounds to believe that the disciplinary chamber was not independent and impartial, as the Supreme Court itself had earlier ruled.
The European Commission has referred Poland’s judicial changes to the CJEU three times in the past. In 2017 it also triggered Article 7 rule-of-law proceedings against Poland, the so-called “nuclear option” that can ultimately lead to a member state being stripped of EU voting rights.
However, the procedure, which a single member state (such as Poland’s ally Hungary) can veto, has subsequently stalled.
The Polish government argues that its overhaul of the judiciary is necessary to stamp out inefficiency, corruption and also the influence of judges from the communist era. Opinion polls, however, have consistently shown that, while the public want reform of the judiciary, the majority do not support the measures taken by the government.
Main image credit: EU2016NL/Flickr (under CC BY 2.0)
Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.
