On 5 August 2021, Małgorzata Manowska, who defectively holds the position of First President of the Supreme Court, issued two orders which are supposed to be the implementation of the CJEU judgment of 15 July 2021 in case C-791/19 and the order of the Vice President of the CJEU of 14 July 2021 in case C-204/20 R, according to which the CJEU held that the new disciplinary regime for judges in Poland as well as the so-called “Muzzle Act” are in breach of EU law and ordered the immediate stoppage of the operation of the Disciplinary Chamber, which is not a court, withheld the validity of the Muzzle Act and suspended the effects of the decisions made by the Disciplinary Chamber to date.
In the orders, M. Manowska decided that, after being registered with the Supreme Court, certain new cases received by the illegal Disciplinary Chamber (especially disciplinary cases of judges and cases of lifting the immunity of judges) are to be temporarily kept in the secretariat of the First President of the Supreme Court until 15 November 2021 and not examined.
In accordance with the orders, all matters that have been received by the Supreme Court and are pending before the Disciplinary Chamber may continue. There is also no reference in the orders to the activities of the Chamber of Extraordinary Control and Public Affairs regarding the hearing of the allegations of the lack of independence of a judge or a court (motions to remove neo-judges).
We conclude that the “Orders of the First President of the Supreme Court” of 5 August 2021 only ostensibly refer to the said decisions of the Court of Justice of the EU and in no way implement them.
Their correct implementation was presented in detail in the position of the NGOs and legal circles on the consequences of the CJEU rulings on the disciplinary system with respect to judges in Poland of 22 July 2021 and should involve:
- bringing about a situation in which all cases pending before the Disciplinary Chamber – depending on their subject matter – are transferred to the Criminal Chamber or the Labour and Social Insurance Chamber of the Supreme Court;
- enabling new cases, for which the Disciplinary Chamber had the jurisdiction to date, to be referred to the above chambers of the Supreme Court;
- preventing the Chamber of Extraordinary Control and Public Affairs from hearing allegations of a lack of independence of a judge or a lack of independence of a court;
- preventing the members of the Disciplinary Chamber and other people adjudicating in the Supreme Court appointed on the motion of the NCJ in the current membership from hearing cases.
The Disciplinary Chamber should not only stop operating immediately and be dissolved, but also all of its decisions to date should be immediately cancelled. Judges Igor Tuleya and Paweł Juszczyszyn, who were suspended by the Disciplinary Chamber for their judicial activities with which the political authorities were not happy, should be able to return to adjudication immediately.
Motions for removal, contesting the status of neo-judges (appointed in a procedure with the involvement of the new NCJ) in the Supreme Court must not be referred to the Chamber of Extraordinary Control and Public Affairs.
We conclude that what Małgorzata Manowska has done is a further attempt to dodge and deceive the bodies of the European Union. This is not a correct and full implementation of the CJEU rulings, and we consider Małgorzata Manowska’s actions to be purely an attempt to avoid liability for failing to implement the Court’s rulings, and not a genuine desire to implement them.
We decidedly demand that the European legal order, which should be in force in Poland, is immediately respected.
Regardless of the content of the orders issued, we would like to reiterate that Małgorzata Manowska, former under-secretary of state at the Ministry of Justice, was appointed judge of the Supreme Court by the President of the Republic of Poland in the same procedure as the people appointed to the Disciplinary Chamber, with the involvement of the new National Council of the Judiciary, which does not guarantee independence of the political authority, as confirmed by the European Court of Human Rights, the CJEU and the Supreme Court in their rulings. Furthermore, numerous shortcomings and procedural errors were made in the process of her appointment to the post of the First President of the Supreme Court and, primarily, a resolution to present the candidates to the President of the Republic of Poland was not adopted, despite the requirement to do so under the Constitution and the Act on the Supreme Court.