The Court of Justice of the European Union has unequivocally ruled that the system of disciplinary liability of judges in Poland is not compatible with EU law!
By introducing a new model of disciplinary regime for judges and creating a special Disciplinary Chamber in the Supreme Court, Poland has failed to fulfil the obligations of the Member State – the Court of Justice of the European Union ruled today in a case initiated by the European Commission’s complaint concerning the disciplinary regime for judges in Poland (case C-791/19).
The CJEU shared the position expressed by the majority of the legal community, including #FreeCourts and the Justice Defence Committee (KOS) that the Disciplinary Chamber does not provide all the guarantees of impartiality and independence and, in particular, is not protected from the direct or indirect influence of the Polish legislature and executive, functions illegally and that no actions taken by it have legal force.
The Court found, inter alia, that:
– Disciplinary Chamber does not provide all the guarantees of impartiality and independence and, in particular, is not protected from the direct or indirect influence of the Polish legislature and executive;
– the disciplinary regime allows the content of judicial decisions adopted by judges of the ordinary courts to be classified as a disciplinary offence; accordingly, it could be used in order to exert political control over judicial decisions or to exert pressure on judges with a view to influencing their decisions, and could undermine the independence of the courts concerned;
– Poland has failed to guarantee that disciplinary cases brought against judges of the ordinary courts will be examined within a reasonable time and has failed to guarantee respect for the rights of defence of accused judges, thereby undermining their independence;
– national judges are exposed to disciplinary proceedings as a result of the fact that they have decided to make a reference for a preliminary ruling to the Court of Justice, which undermines their right or, as the case may be, their obligation to put questions to the Court, as well as the system of judicial cooperation between the national courts and the Court of Justice established by the Treaties in order to secure uniformity in the interpretation of EU law and to ensure the full effect of that law.
The case was initiated by a complaint from the European Commission, which directly pointed out that in its opinion new disciplinary regime applicable to Polish judges allege systemic breaches of the safeguards required in order to ensure the independence of those judges and does not provide them with the necessary guarantees to protect them from political control. In April 2019, the Commission launched the infringement procedure against Poland, and on 10 October 2019 it submitted a complaint to the CJEU.
On 8 April 2020, following the Commission application for interim measures, the Court (Grand Chamber) ordered to suspending the activities of the Disciplinary Chamber.
However, the Chamber ignores the interim measures issued by the CJEU and takes the position that the interim measures apply only to proceedings relating to the disciplinary liability of judges – it does not hear these cases, but at the same time deals with cases of much more serious ailments, i.e. lifting the judicial immunity.
Therefore, in April 2020 the Commission launched another infringement procedure and on 31 May 2021 submitted an application to the CJEU to order another interim measure. The Court upheld all the requests of the European Commission and yesterday obliged Poland to immediately suspend the application of national provisions relating in particular to the powers of the Disciplinary Chamber, which does not guarantee independence and impartiality. The CJEU has once again suspended its activities and, very importantly, canceled all decisions it had taken in cases of the lifting immunities of judges.
The Commission’s complaint was supported by the The Kingdom of Belgium, the Kingdom of Denmark, the Kingdom of the Netherlands, the Republic of Finland and the Kingdom of Sweden.
Judgment of the CJEU (Grand Chamber) of 15 July 2021 (case C-791/19)