The reform of the Polish judicial system, promoted and approved in December 2019 at the request of PiS, violates Union Law. It was then said by numerous associations, all the opposition parties and the European Commission. And now, after countless procedures, it has also been sentenced by the Court of Justice of the European Union.
For a decade, Brussels and Warsaw have clashed on everything that has to do with the courts. The government controlled in the shadows by Jaroslaw Kaczyski, the mastermind and arm of the Law and Justice party, then began a slow assault on the judiciary and the lawsuits with the European Commission are the only thing that has prevented it from completely destroying the separation of powers. Last week, in the umpteenth episode, European and US pressure forced President Andrzej Duda to reverse the approval of a law that contemplates the creation of a commission to investigate Russian interference and that critics believe is a ploy to go after political opponents, especially the former president of the European Council, Donald Tusk.
On December 20, 2019, the country approved a law that modified the national regulations for the organization of the ordinary courts, the contentious-administrative courts and the Supreme Court. The European Commission filed an appeal, considering that this “modifying law” gave the Disciplinary Chamber of the Supreme Court, whose independence and impartiality were clearly not recognized, powers to rule on the statute of judges and the exercise of jurisdictional functions . That is, it became an organ of control, surveillance and punishment.
With the creation of this body, the Government removed responsibilities from the Supreme Court, and magistrates were imposed “the obligation to communicate information about their activities in associations or foundations, as well as their political affiliation in the past”, and by ordering the publication of this information, the “modifying law violates the right to respect for private life and the right to the protection of personal data.”
It started a long fight with the institutions that dotted the creation of the European recovery fund, the distribution of Next Generation funds and that has further rarefied all bilateral treatment. The clash was open and frontal, but with the war in Ukraine it took a backseat, as Warsaw has figured prominently in everything that involved working to punish Russia. Changes have been made over the years, modifications after pressure from the community and from the magistrates, but the process was still ongoing because PiS has never accepted criticism and aspired to be able to recover the initial project.
The Commission, like many of the other open judicial cases, requested immediate temporary measures to avoid irreparable damage, such as when Poland wanted to forcefully retire many judges. During the procedure, at the end of 2021 the Government was sentenced to pay a fine of one million euros per day, as the Luxembourg high court considered that it was necessary “to guarantee that Poland complied with the provisional measures.” In April of last year, the fine was reduced to half a million, but with today’s sentence, which definitively closes the file, Poland’s obligation to pay the owed sanctions remains.
“Today is an important day for the restoration of independent justice in Poland. Since the adoption of the law in December 2019, the Commission has made its point about the law clearly and strongly: it undermines the independence of Polish judges. Any setback in the organization of justice must be avoided. After today’s decision, the law on the judiciary will have to be adapted accordingly,” said Commissioner Didier Reynders, responsible for Justice.
“Although the EU does not have competence to evaluate the organization of the judiciary according to the Treaties, the CJEU has concluded that it can evaluate the Polish judiciary. The ruling indicates that Poles do not have the right to information to know if the judges who judge their cases are political activists. This is a farce and further proof that the EU will not respect any commitment. Although the Lisbon Treaty excludes the possibility of the CJEU ruling on Poland’s compliance with the Charter of Fundamental Rights , the court always makes decisions on its basis and interprets it in relation to Poland,” the country’s Secretary of State for Justice, Sebastian Kaleta, responded on his Twitter account.
LEGAL ARGUMENT
In the decision of the CJEU, the value of the Rule of Law prevails, which as recalled in the letter “forms part of the very identity of the Union as a common legal order and is specified in a series of principles that contain legally binding obligations for the States members”.
In the first place, the Court of Justice emphasizes that the control of compliance by a Member State “with values ??and principles such as the rule of law, effective judicial protection and judicial independence” is fully within its competence. And what’s more, community partners are also “obliged to ensure that they avoid any regression, in terms of the value of the rule of law, of their legislation on judicial organization, refraining from adopting rules that undermine the independence” of the magistrates.
Secondly, the Court of Justice, based on its case law, reaffirms its assessment that the Disciplinary Chamber of the Polish Supreme Court “does not satisfy the requirement of independence and impartiality”. Thirdly, Luxembourg considers that, “given their breadth and imprecise nature and the particular context in which they were adopted”, the provisions of the law “are incompatible with the guarantees of access to an independent, impartial tribunal previously established by the law”, since in practice they suppose that in some circumstances the national courts are obliged to verify if they themselves or the judges that integrate them or other judges or courts comply with the requirements established by Union Law”.
“You may disagree with the European Commission, but the judgment of the Court of Justice of the EU settles the matter definitively. The CJEU has the last word when it comes to the application of EU law and the protection of the legal order of the EU. As a member of the European family, I urge the Polish authorities to fully comply with the sentence. This is necessary to strengthen the independence of the Polish courts”, Commissioner Reynders has settled.
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