Poland closes judicial disciplinary chamber at heart of dispute with EU

The disciplinary chamber of Poland’s Supreme Court has today been closed down, in a move that the government hopes will satisfy one of the European Commission’s central demands to unlock billions of euros in frozen EU funds and also help bring to an end daily fines of €1 million being levied by the European Court of Justice (ECJ).

However, opposition figures and some legal experts claim that the measure will simply replace the chamber with another that serves a similar purpose. The commission’s president, Ursula von der Leyen, has also warned that the chamber’s closure is not enough on its own to meet the EU’s requirements.

The disciplinary chamber was established in 2017, as part of what the national-conservative ruling Law and Justice (PiS) party claims are its efforts to reform and improve the judiciary. Critics saw it as a means to intimidate and subdue independent judges who refused to toe the government line.

In 2019, the Supreme Court itself ruled that “the disciplinary chamber is not a court within the meaning of EU and national law”. Last year, the European Court of Human Rights likewise found that the chamber is “not a tribunal established by law”.

Shortly before that latter ruling, the ECJ had ordered Poland to suspend the work of the disciplinary chamber. However, it continued to function, resulting in the daily fines that have so far totalled over €250 million.

In an effort to break the impasse, President Andrzej Duda – a government ally – proposed a bill in February this year that would remove the disciplinary chamber and replace it with a new “chamber of professional responsibility” tasked with holding judges to account.

That legislation was passed by parliament last month and then signed into law by Duda. Today it came into force, eliminating the disciplinary chamber.

The Supreme Court will by mid-August conduct a draw to randomly select 33 candidates for the new chamber of professional responsibility from among its 90 judges. Duda will then select 11 of them to sit on the chamber for a five-year term.

The opposition has argued that this is merely a superficial change. They say that the new chamber is likely to be stacked with judges appointed to the Supreme Court since the National Council of the Judiciary (KRS), the body responsible for picking judges, was overhauled by PiS in 2017, bringing it under greater political control.

Some judges in the new chamber may be those who until today served on the disciplinary chamber, as they are also eligible for the draw to select candidates. Former disciplinary chamber judges not appointed to the new chamber will be allowed to serve in other parts of the Supreme Court.

The new law “removes the tumour while consciously making metastases to other, healthy chambers”, said constitutional law scholar Marcin Matczak, a prominent critic of the government’s judicial reforms, quoted by Gazeta Wyborcza.

The European Commission has also raised doubts as to whether the new system will meet its demands. Earlier this month, Věra Jourová, a vice president of the commission, said that the new law “does not fulfil the milestones for the recovery plan” – meaning the reforms agreed between Warsaw and Brussels to unlock EU funds.

The following day, von der Leyen said that, while analysis of the new law was not yet complete, it was already clear that it did not meet all of the commission’s demands.

In particular, “this new law is not ensuring that judges are able to question the status of another judge without risking being subject to disciplinary offence”, she said. “That is a requirement, that is needed. So this issue still has to be addressed to comply with those commitments and therefore to unlock the first payment.”

Poland’s hardline justice minister, Zbigniew Ziobro, this week accused the European Commission of making “ever more demands” of Poland and warned that “accepting these milestones is to accept stones around the neck of the Polish economy, of Polish interests”.

Prime Minister Mateusz Morawiecki, however, said yesterday that he was confident that the elimination of the disciplinary chamber will meet the terms of the agreement with the commission and that Poland’s funds would begin to flow by the end of this year, reports TVN24.

Main image credit: Maciek Jazwiecki / 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.