For years, Brussels and Warsaw have been in conflict over the Polish Government’s restructuring of the judiciary, with the dispute going into the next round this week. On Wednesday, EU Justice Commissioner Didier Reynders announced that the Commission is, once again, referring Poland to the European Court of Justice (ECJ) as it sees the independence of Polish judges in danger. The Commission also asked the ECJ to impose provisional measures until a final judgement is delivered.
From the Commission’s perspective, there are two major sticking points: First, Poland’s law on the judiciary, which was adopted in December 2019 and entered into force on 14 February 2020, undermines the judicial independence and is thus incompatible with the primacy of EU law. The law makes it possible for judges to face fines, demotion or dismissal if they question the decision-making competence or legality of another judge, a chamber or a court. Additionally, judges are also not allowed to engage in political activity.
Secondly, the Commission considers that the Disciplinary Chamber of the Polish Supreme Court should not continue to operate, as it may not be independent. This Disciplinary Chamber was established in 2018 and is a crucial element of the Polish reforms. At the Commission’s request, the ECJ had already ruled in April 2020 that the Chamber must suspend its work for the time being. The Commission criticises that the potentially insufficiently independent Chamber continues to make decisions that “directly impact judges and the way they exercise their function”. For example, it could waive the immunity of judges to prosecute them under criminal law. Mainly lawyers and former prosecutors from the entourage of Justice Minister Zbigniew Ziobro occupy it.
In addition to bringing this case in front of the ECJ, the Commission wants the Court to take provisional measures to address the situation in Poland, and asks it to suspend the powers of the Disciplinary Chamber provisionally. The effect of decisions already taken about immunity should also be annulled. The December 2019 law underlining the judicial independence should be suspended as well.
This week’s action is the latest chapter in a long judicial battle between the EU’s institutions and the Polish Government. The confrontation over the rule of law began in 2017 when the Commission decided to launch the Article 7 procedure against Poland, which, although unlikely, could end with the withdrawal of the Polish voting right in the European Council. Since then, the Commission started four infringement procedures against Poland.
So far, the Polish Government seems to be unimpressed by the Commission’s action and rejected the accusations as, according to them, the request has neither legal nor factual justification. Poland’s Government spokesman Piotr Müller wrote on Twitter that “regulation of the field of justice is among the exclusively national domains,” and that “this follows from the Polish constitution and the EU treaties.” For the time being, it is clear that Poland is unwilling to give in. Together with Hungary, the country will likely continue to drift away from European democratic norms and remain a major headache for the EU and the values it aims to portray.