Disciplinary regime for Polish judges violates EU law and must be “rectified without delay”, finds ECJ

A system for disciplining judges introduced by Poland in 2017 is in violation of European law, the Court of Justice of the European Union (CJEU) has found in a case brought against Warsaw by the European Commission.

The disciplinary chamber created under that system “does not provide all the guarantees of impartiality and independence and, in particular, is not protected from the direct and indirect influence of the Polish legislature and executive”, writes the court.

As part of its controversial and contested overhaul of the judicial system – many parts of which have been recognised as violations of the rule of law by domestic and international bodies – the Polish government created a new disciplinary chamber of the Supreme Court.

In 2019, the European Commission brought a complaint against Poland to the CJEU, arguing that the new disciplinary system violated EU law. Later that year, the Polish Supreme Court itself ruled that the disciplinary chamber is “not a court within the meaning of EU and national law”.

In its ruling today, the CJEU noted that judges on the disciplinary chamber have been chosen by the National Council of the Judiciary (KRS), a body responsible for nominating judges and which was substantially overhauled by the government as part of its judicial policies.

As a result of that overhaul, the “independence [of the KRS] may give rise to reasonable doubt”, found the CJEU. In 2019, the Polish Supreme Court also found that the KRS is “dependent on the executive authorities” and that the judges it chose for the disciplinary chamber “are strongly associated with the legislative or executive”.

Previously, 15 of the KRS’s 25 members were elected by other judges, but, as a result of PiS’s reforms, they are now chosen by parliament. The remaining members are also largely political appointees, including four MPs, two senators, a representative of the president, and the justice minister.

The CJEU today also noted that the powers given to the disciplinary chamber “could be used in order to exert political control over judiciary decisions or to exert pressure on judges…and could undermine the independence of the courts concerned”. The system also “fails to respect the right of defence of accused judges”.

Moreover, the fact that “judges are exposed to disciplinary proceedings…[for] making a reference to the Court of Justice…undermines the system of judicial cooperation between national courts and the Court of Justice in order to secure uniformity in the interpretation of EU law”.

The CJEU calls on Poland to “take measures necessary to rectify the situation…without delay”. Should it fail to do so, it could face financial penalties.

Today’s ruling is the third time in recent years that the CJEU has found that the Polish government’s judicial policies violate EU law, notes the Gazeta Wyborcza daily.

The court previously upheld cases brought by the European Commission regarding attempts to force judges into early retirement, which resulted in the Polish government withdrawing from those policies.

Recently, however, Poland’s prime minister, Mateusz Morawiecki, asked the Constitutional Tribunal (TK) – a body widely seen as being under government influence – to rule on whether Polish law should take precedence over European law. Hearings on that case began this week but have been postponed to early August.

But the TK did yesterday issue a ruling in the government’s favour, finding that interim orders from the CJEU relating to Poland’s judiciary are inconsistent with the Polish constitution. That verdict came shortly after the CJEU had ordered the suspension of the Polish disciplinary chamber.

Polish government spokesman Piotr Müller, in an interview with state broadcaster TVP this morning, reiterated the government’s position that judicial reform is a competence of member states, not the EU.

He claimed that recent developments are not really about a legal dispute, but are part of a “political game” as well as “an attempt to push EU institutions beyond what they have been granted in the treaties”.

However, Dorota Bawołek, a correspondent for Polsat News covering EU affairs, said that today’s CJEU ruling means the Polish disciplinary system for judges established in 2017 “must be abolished”.

Kamila Gasiuk-Pihowicz, an opposition MP, applauded the CJEU for its decision, saying that it had “upheld the rights of Polish citizens to an independent court” and “confirmed what we have been saying for a long time, that the disciplinary system for judges is not compliant with EU law and is a tool of pressure”.

Main image credit: Jakub Wlodek / Agencja Gazeta

Daniel Tilles

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.