Rule of Law: European Commission refers Poland to the Court of Justice to protect judges from political control

This article is brought to you in association with the European Commission.

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Today, the European Commission decided to refer Poland to the Court of Justice of the EU regarding the new disciplinary regime for Polish judges, requesting an expedited procedure. On 3 April 2019, the Commission launched this infringement procedure on the grounds that the new disciplinary regime undermines the judicial independence of Polish judges and does not ensure the necessary guarantees to protect judges from political control, as required by the Court of Justice of the EU. Specifically, the Polish law allows ordinary court judges to be subjected to disciplinary investigations, procedures and sanctions on the basis of the content of their judicial decisions, including the exercise of their right under Article 267 of the Treaty on the Functioning of the European Union (TFEU) to request preliminary rulings from the Court of Justice of the EU. Moreover, the new disciplinary regime does not guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which is composed solely of judges selected by the National Council for the Judiciary, which is itself politically appointed by the Polish Parliament (Sejm). Furthermore, the new disciplinary regime does not ensure that a court ‘established by law’ will decide in the first instance on disciplinary proceedings against ordinary court judges. Instead, it empowers the President of the Disciplinary Chamber to determine, on an ad-hoc basis and with an almost unfettered discretion, the disciplinary court of first instance to hear a given case brought against an ordinary court judge. The new regime no longer guarantees that cases are processed within a reasonable timeframe, allowing the Minister of Justice to keep charges pending over ordinary court judges through disciplinary officers appointed by the Minister. The new regime also affects ordinary court judges’ right of defence. In short, judges are not insulated from political control and thus judicial independence is violated. On 3 April 2019, the Commission addressed a letter of formal notice to Poland. Following a thorough analysis of the response received, the Commission concluded that the response did not alleviate the legal concerns, and took the next step in the process, sending a reasoned opinion on 17 July 2019. In its latest response, Poland again failed to address the Commission’s concerns. The Commission has therefore decided to refer Poland to the Court of Justice of the EU. In view of the potential impact of the disciplinary regime on judicial independence, a request for an expedited procedure is warranted, to obtain a final judgment as soon as possible. This would also be in line with the Commission’s Communication of 17 July 2019 entitled “Strengthening the rule of law within the Union – A blueprint for action”, which underlines that building on its existing approach to enforcement and on developing case law of the Court of Justice of the EU, the Commission will pursue a strategic approach to infringement proceedings related to the rule of law, requesting expedited proceedings and interim measures whenever necessary. Background The rule of law is one of the common values upon which the European Union is founded and common to all Member States. It is enshrined as such in Article 2 of the Treaty on European Union. The rule of law is essential for the functioning of the EU as a whole, for example with regard to the internal market, cooperation in the area of Justice and Home Affairs, and ensuring that national judges, who are also EU judges, can fulfil their role in ensuring the application of EU law and can properly interact with the Court of Justice of the EU in the context of preliminary ruling procedures. The Commission’s Communications of 3 April and 17 July 2019 on the rule of law explain the existing toolbox for enforcing the rule of law and the Commission’s actions and proposals to further strengthen that toolbox. The European Commission, together with other Union institutions and the Member States, is responsible under the Treaties for guaranteeing the rule of law as a fundamental value of our Union and making sure that EU law, values and principles are respected. Events in Poland led the European Commission to open a dialogue with the Polish Government in January 2016 under the Rule of Law Framework and then activate the Article 7(1) TEU procedure on 20 December 2017. The process is based on a continuous dialogue between the Commission and the Member State concerned. The Commission keeps the European Parliament and Council regularly informed. In addition, on 2 July 2018, the Commission launched an infringement procedure on the Polish law on the Supreme Court, on the grounds of its retirement provisions and their impact on the independence of the Supreme Court. On 24 September 2018, the Commission decided to refer the case to the Court of Justice of the EU, which delivered its final judgement on 24 June 2019. The Court has found that lowering the retirement age of judges of the Supreme Court is contrary to EU law and breaches the principle of the irremovability of judges and thus that of judicial independence. On 29 July 2017, the Commission launched an infringement procedure on the Polish Law on Ordinary Courts, on the grounds of its retirement provisions and their impact on the independence of the judiciary. The Commission decided to refer this case to the Court of Justice of the EU on 20 December 2017.