Poland Must Suspend Law on the Disciplining of Judges 

European Court of Justice rules against the Polish Disciplinary Chamber

 

 

The Polish government has suffered a serious defeat before the European Court of Justice (ECJ). The EU Commission had filed a complaint there because it feared that the national conservative government would undermine the separation of powers. Now the motion from January 2020 has been granted. The verdict is clear and unequivocal: the disciplinary chamber for the Supreme Court set up by the Polish government must be suspended immediately.

Background: The national conservative government led by the PiS party considers the independent operation of the judiciary, especially when it comes to the constitutionality of government measures, as an interference in the will of the people by an aloof “caste” of judges. In this sense, from the very beginning it tried to undermine the separation of powers and to bring the two main courts under its political control.

The Constitutional Court watches over the constitutional conformity of laws and international treaties. The Polish Government has more or less succeeded in bringing this court under its control. In 2016, the PiS-affiliated judge Julia Przyłębska was appointed president of the court by the Polish president Andrzej Duda, who is also close to the PiS – bypassing the court itself, which according to the constitution must elect its own president. Before the election in October 2019, the parliament had appointed judges who were replaced by the new PiS majority after the election.

Moreover, the so-called “Supreme Court” is the final instance in Polish criminal and civil law matters. Since the demarcation to the Constitutional Court is blurred, the court is also important in assessing government actions. In 2018, the government tried to get rid of unpopular judges by changing the retirement age. This concerned above all the court president Małgorzata Gersdorf. After massive protests – especially from the European Parliament and the Council of Europe (Venice Commission) – the Polish President withdrew the law. This was one of the few cases in which he contradicted the government. Since then, the PiS government has sought new ways to “tame” the Supreme Court.

In 2018, the government simply introduced a “new court”, a so-called disciplinary chamber, whose tasks are to prosecute disciplinary cases against judges of the Supreme Court, judges of ordinary jurisdiction, prosecutors, lawyers and notaries. The judges of the Chamber are appointed by the President of the Republic of Poland, from a shortlist of the National Council of Justice, which in turn is elected by Parliament by a simple majority. The European Court of Justice has now confirmed that this procedure clearly undermines the separation of powers, since in this way a government majority always determines the composition of the Disciplinary Chamber. In fact, so far almost exclusively prosecutors have been called up from the circle of the Minister of Justice, Zbigniew Ziobro, who is considered a particular hardliner in the PiS government.

Even more: Together with the establishment of a disciplinary chamber, the so-called ” Muzzle Law” was passed. It provides for punishments of judges who criticize the court reform – or even question appointed judges. The disciplinary chamber should also “judicially” decide on the sanctions provided for in the law.

The European Court of Justice has now handed down its judgment against this disciplinary chamber, after having referred the case back to the Polish Supreme Court in November 2019. The Supreme Court also immediately decided that the Disciplinary Tribunal was not sufficiently independent of the executive, indeed in principle its executive body. It was therefore not recognisable as part of the judiciary and was not allowed to pass judgements. Nevertheless, the Disciplinary Tribunal continued to work at the behest of the government and with its backing.

Therefore, on 23 January 2020, the EU Commission (supported by Belgium, Denmark, the Netherlands, Finland and Sweden) applied to the ECJ against Poland for an interim injunction for provisional legal protection. According to this injunction, 1. all application of the Disciplinary Tribunal’s provisions regarding the Supreme Court should be discontinued until a final ECJ ruling on the case (infringement proceedings), 2. the proceedings pending before the Disciplinary Tribunal should not be referred to a panel of judges, and 3. the EU Commission should be notified of all measures adopted by the Polish government in order to fully comply with this decision. The ECJ has now fully complied with this request. Should these demands not be met, the EU Commission could apply to the ECJ for fines against Poland.

The Polish Government immediately stated that it did not accept the judgment as it stands. Prime Minister Morawiecki declared in a statement that the reform of the judiciary was exclusively the responsibility of the Member States. The government will therefore forward the ECJ decision to the Constitutional Court. Sebastian Kaleta, State Secretary in the Ministry of Justice, also stressed that the ruling violates Polish sovereignty – the government’s standard argument in all cases where the EU voices criticism of the undermining of the independence of the judiciary in Poland.

On the other hand, many judges, including the president of the judges’ association Justitia Krystian Markiewicz, have welcomed the ruling. Opposition politicians, such as the leader of the liberal party “Nowoczesna” Adam Szłapka, also stressed that the EU Commission could now “take action against this farce”.

The power struggle between the EU Commission and the Polish government has entered a new stage with the ruling. The EU now has to show toughness, because the government has rather radicalised its course since its re-election in October 2019. At the same time, the question arises as to how far it can go in the conflict, which commentators believe could develop into a “creeping Polexit”. Even an overwhelming majority of PiS supporters do not want that – not least because of the high EU subsidies for Poland. But unfortunately, one cannot rely on this insight to actually moderate the government.

 

 

detmarDr. Detmar Doering

Project Director, FNF Central Europe and the Baltic States