European Commission refers Poland to the CJEU to protect independence of Polish judges and asks for interim measures

The European Commission decided today to refer Poland to the Court of Justice of the European Union regarding the law on the judiciary of 20 December 2019 (so-called muzzle act), which according to the Commission undermines the independence of Polish judges and is incompatible with the primacy of EU law. The European Commission also decided to ask the Court of Justice to order interim measures until it has issued a final judgment in the case. EU Justice Commissioner Didier Reynders announced the Commission’s decision at a conference today at noon. It is a very important decision of the European Commission and all those who care about the rule of law have been waiting for it. It also marks the transition to the next stage of the anti-infringement procedure regarding the muzzle act of December 2019.

In addition, the Commission believes that Poland violates EU law by allowing the Disciplinary Chamber of the Supreme Court – the independence of which is not guaranteed – to take decisions which have a direct impact on judges and the way they exercise their function. These matters include cases of the lifting of immunity of judges with a view to bringing criminal proceedings against them or detain them, and the consequent temporary suspension from office and the reduction of their salary. According to the Commission this seriously undermines judicial independence and the obligation to ensure effective legal protection, and thus the EU legal order as a whole.

Besides referring the case to the Court of Justice, the Commission also decided today to ask the Court of Justice to order interim measures so as to prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order. In its request, the Commission asks the Court of Justice in particular to:

suspend the provisions empowering the Disciplinary Chamber of the Supreme Court to decide on requests for the lifting of judicial immunity, as well as on matters of employment, social security and retirement of Supreme Court judges,
suspend the effects of decisions already taken by the Disciplinary Chamber of the Supreme Court on the lifting of judicial immunity, and
suspend the provisions preventing Polish judges from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the Court of Justice as well as the provisions qualifying action taken by judges in that respect as disciplinary offences.

If the CJEU orders interim measures at the request of the Commission, the Disciplinary Chamber will not be able to act in any judicial cases. The second point of the request for interrim measures is extremely important, as it says that the European Commission is demanding suspension of the effects of decisions already taken by the Disciplinary Chamber, i.e. lifting the immunity of Judge Igor Tuleya or Judge Beata Morawiec. This means that as soon as the Court of Justice orders interim measures, these judges should immediately return to work in court and adjudicate on cases.

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European Commission refers Poland to the CJEU to protect independence of Polish judges and asks for interim measures