Poland is obliged to immediately suspend the application of national provisions relating in particular to the powers of the Disciplinary Chamber of the Supreme Court!
Once again, the Court of Justice of the European Union suspended laws related to the functioning of the Disciplinary Chamber of the Supreme Court and annulled all of its decisions in cases of the lifting of immunity of judges.
Vice-President of the Court Rosario Silva de Lapuerta upheld all the requests of the European Commission until the issuance of a final verdict in the case regarding the “muzzle law” (Case C-204/21).
The Vice-President of the Court ordered Poland to immediately:
- Suspend of the application of the provisions, based on which the Disciplinary Chamber is competent to adjudicate in cases of lifting judicial immunity and to suspend of the effects of already issued decisions of the DC in those cases as well as refrain from transferring of the above-mentioned cases to the judicial authority which does not meet the requirements of independence;
- Suspend of the application of the provisions, based on which the Chamber is competent to adjudicate in cases concerning the status of Supreme Court judges and their holding of office, in particular in labor and social security cases concerning Supreme Court judges and in cases related to the retirement of a Supreme Court judge and to refrain from transferring these cases to a judicial authority which does not meet the requirements of independence;
- Suspend of the application of the provisions allowing disciplinary liability of judges for examining the fulfilment of the requirements of the independence and impartiality of a court established by law;
- Suspend of the application of national regulations to the extent that they prohibit national courts from examining the fulfilment of EU requirements concerning an independent and impartial court established by law;
- Suspend of the application of the provisions transferring the exclusive competence of the Chamber of Extraordinary Control and Public Affairs the examination of allegations of lack of independence of a judge or lack of independence of a court.
The EU Commission referred the case to the Court because it rightly considers that Poland violates the EU law by allowing the Disciplinary Chamber of the Supreme Court – the independence of which is not guaranteed – to continue to take decisions which have a direct impact on judges and the way they exercise their function in particular in cases of the lifting of immunity of judges to allow criminal proceedings against them or to detain them, and the consequent temporary suspension from office and reduction of their salary. The DC continues to operate despite the interim measures ordered by the CJEU over a year ago to suspend the activities of the Chamber.
For judges, The mere prospect of having to face proceedings before a body whose independence is not guaranteed creates a ‘chilling effect’ and can affect their own independence. This seriously undermines judicial independence in Poland, effective judicial protection for citizens in Poland and the EU legal order as a whole.
The Commission considers that the ‘muzzle law’ undermines the independence of Polish judges in breach of Article 19(1) TEU and the primacy of EU law. The law prevents Polish courts, including by threatening with disciplinary proceedings, from directly applying EU law protecting judicial independence as well as from referring questions to the Court of Justice for preliminary rulings.
It is the fourth infringement procedure launched by the European Commission initiated by the European Commission regarding the changes in the Polish justice system over the past four years. In any of the proceedings, Poland failed to comply with the EC’s recommendations and the cases were referred to the CJEU. All the proceedings concluded by the CJEU so far ended in judgements unfavourable to Poland.