Maddalen Martin-Arteche , 27 juillet 2021

In a new episode in the on-going saga of questioning the Polish judiciary’s independence, the Court of Justice of the European Union (CJEU) ruled recently on the compatibility of the disciplinary regime of Polish judges with EU law. The recent reform of the national disciplinary regime led to the creation of a disciplinary chamber attached to the Polish Supreme Court with exclusive jurisdiction to hear both disciplinary cases concerning judges of the Supreme Court and judges of Polish ordinary courts. The reform is part of a wider set of measures regarding the organisation of the Polish judiciary adopted since the end of 2015. A number of the reforms have been challenged before the CJEU, giving rise to several infringement procedures (see, for example, judgment of the CJEU of 24 June 2019, in case C-619/18; and judgment of 5 November 2019, in case C‑192/18), references for a preliminary ruling (see, for example, judgment of the CJEU of 19 November 2019 in joined cases C-585/18, C-624/18 and C-625/18), as well as the adoption by the Commission of a proposal, pursuant to Article 7 TEU, for a Council decision on the finding of a clear risk of a serious breach of the rule of law.

On 14 July 2021, the CJEU ordered Poland, following a request for interim measures, to suspend the application of national provisions on the competences of the Disciplinary Chamber of its Supreme Court until the final judgment in case C-204/21 is rendered. The CJEU based its decision on the finding that the Chamber does not constitute a judicial body meeting the requirements of an independent tribunal within the meaning of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the EU. The CJEU considered the resulting risk of compromising the independence of the Polish judiciary as likely to cause serious and irreparable damage to the EU legal order, especially the rule of law (Article 2 TEU), requiring urgent measures. 

The interim measures were not well received in Poland. Indeed, the Polish Constitutional Tribunal stated on the same day that the measures ordered by the CJEU are inconsistent with the Polish Constitution. The Commission issued on 15 July 2021 a declaration whereby it regretted the statement by the Polish Constitutional Tribunal, reaffirmed the primacy of EU law and threatened Poland to make use of its powers under the EU Treaties in case it did not comply with the ordered measures.

What is more, on 15 July 2021, following an action for infringement of EU law introduced by the Commission against Poland, the CJEU considered Poland to be in breach of the obligations deriving from the second paragraph of Article 19(1) TEU, and the second and third paragraphs of Article 267 TFEU.

The likelihood that the Polish legislative and executive powers use the Disciplinary Chamber of the Polish Supreme Court to exert control on the judiciary led the CJEU to find that Poland had breached its obligations resulting from the second paragraph of Article 19(1) TEU. The following are some illustrations of the lack of independence affecting the Disciplinary Chamber. First, the CJEU pointed to the flawed procedure for the appointment of the members of the Disciplinary Chamber. Second, the CJEU mentioned the power vested on the Disciplinary Chamber to sanction judges of ordinary courts for the content of their judicial decisions. Third, the CJEU found that the defence rights of the judges involved in disciplinary proceedings conducted before the Disciplinary Chamber had not been respected on several occasions. Concerning the obligations under the second and third paragraphs of Article 267 TFEU, the CJEU noted that the Polish ordinary judges had been exposed to disciplinary proceedings following their decision to make a reference for a preliminary ruling to the CJEU. The latter would erode the system of cooperation between the EU and national courts and would also call into question the uniform interpretation of EU law and its full effect in the Member States.

The Court of Justice of the EU is not the sole entity pointing at the lack of independence of the Polish Disciplinary Chamber. On 20 July 2021, the European Court of Human Rights gave notice to the Polish Government of a pending case concerning the suspension and lifting of immunity of an ordinary Polish judge. According to the applicant, the Disciplinary Chamber would have ordered such measures following his statements criticising the reform of the Polish judiciary and would have done so in breach of his rights of defence.

Considering that past infringement actions and declarations against Poland have not attained their purpose, one may doubt whether this is the way to go. The possibility of suspending EU funds allocated to Poland for the non-respect of the rule of law requirements is currently on the table. However, the Commission has not yet applied such possibility against Poland, which the European Parliament has regretted.

Maddalen Martin Arteche, Non-compliance of the Polish judiciary regime with the rule of law requirements, actualité du CEJE nº 26/2021, disponible sur www.ceje.ch