Poland ‘breaks EU law’ over judges, EU court opinion says

The EU Commission sued Poland in 2019, arguing that its new disciplinary regime compromised judicial independence and potentially exposed judges to political interference.

The ECJ later backed the EU executive’s request for so-called interim measures, ordering Poland to “immediately suspend” the regime, which the Polish government has ignored. The disciplinary chamber continues to rule on cases against judges who have been critical of the judicial reforms.

The ECJ’s top advisor, whose opinion is usually followed by the court in its final ruling, said that the definition of disciplinary offences is too broad.

He argued that it can be used to “cover the content of judicial decisions”, and does not have “enough guarantees to protect judges”.

Tanchev further argued that the threat of being put under disciplinary procedures because of the content of their judicial decisions “undoubtedly creates a ‘chilling effect'” on current and future judges, “which is incompatible with judicial independence”.

Tanchev agreed with the commission that the legislation does not guarantee the independence and the impartiality of the disciplinary chamber, and therefore breaks EU law.

The legislation also breaks EU law because it can cover the right of national courts to ask for preliminary rulings from the ECJ.

National courts can ask for the opinion of the EU top court if they need help interpreting EU rules or they think that a national legislation might infringe the bloc’s law – a practice that the Polish government decried.

The advisor argued that “national measures which expose national judges to disciplinary proceedings because they made a reference cannot be permitted”, as “they strike at the heart of […] the very foundations of the union itself.”

Poland’s government, led by the nationalist Law and Justice (PiS) party, has said its measures serve to reform an inefficient court system.

In response to the opinion, Polish deputy justice minister Michal Wojcik accused the EU of “double standards”.

“Other countries are allowed to make their own decisions, and the Poles are not,” he was quoted as saying by Bloomberg.

The case is one of several rows between Poland and the EU, which has also put the country under the Article 7 sanctions procedure for infringing judicial independence. Concerns over Polish media freedom have also been on the rise.

Case in point

The ECJ’s opinion came as the disciplinary chamber in Warsaw discussed removing the immunity of supreme court judge Wlodzimierz Wrobel, a critic of the government’s judicial overhaul.

The prosecutors want Wrobel’s immunity lifted so they can charge him with depriving a person of liberty, a crime that carries a jail term of up to 10 years

The case involved an administrative error by a supreme court secretary that led to a man spending an additional month under arrest.

A supreme court statement said that employees of the court were responsible for the breaches, not the judge, and had been punished.