The CJEU confirms the illegality of the disciplinary regime that Poland imposes on its judges denounced by Brussels

2023-06-05 20:00:21

Relations between the EU and Poland are complicated again. Despite the war in Ukraine y the cooperation shown by Warsaw had gotten a rapprochement with Brusselsa new judgment of the Court of Justice of the EU has once again condemned the judicial reform undertaken in 2019 and that contravenes Community legislation. This legislation modifies the national regulations for the organization of ordinary courts, those relating to contentious-administrative matters and the Supreme Court.

The European Commission denounced Poland, considering that judicial independence was not guaranteed and the European high court already imposed a daily fine of one million euros in 2021, which was later reduced by half since Warsaw showed goodwill. With the ruling known this Monday, the daily fines are paralyzed, although this does not exempt the country from paying the money owed.

The Court of Justice of the European Union agrees with the Community Executive when considering that “in the exercise of its powers in matters of organization of the Administration of Justice, Member States must comply with the obligations deriving from Union law. They are also obliged to ensure that their legislation on judicial organization matters is not regressed in terms of the value of the rule of law, refraining from adopting regulations that undermine judicial independence. This fundamental value, which is part of the very identity of the Union”.

Regarding the specific reforms enacted in 2019 and that contravene these values, the high court stresses that “the Disciplinary Chamber of the Supreme Court does not satisfy the requirement of independence and impartiality” since the judges who apply community law can see themselves retaliated by this body, which is empowered to “initiate criminal proceedings against them or their arrest or issue decisions related to essential aspects of the labor law, social security or pension that are applicable to them.

In addition, the European justice considers that the changes made after the complaint by the European Commission may result in “the disciplinary regime applicable to judges and the sanctions that it provides being used to prevent national courts from appreciating whether a court or judge complies the requirements of effective judicial protection derived from Union Law, where appropriate submitting a reference for a preliminary ruling to the Court of Justice”. Any national court can go directly to the European court when in doubt about how to apply community law in a case, a query called a preliminary ruling and that has binding value. According to the European Court of Justice, the disciplinary regime that applies to judges in Poland makes it difficult for these consultations to be carried out freely.

In addition, according to the ruling made public this Monday, Poland does not comply with Community legislation either, since a single national body has the competence to verify effective judicial protection, something that must be guaranteed in all national courts. Likewise, the court in Luxembourg censures that “national provisions that oblige judges to present ora written statement indicating their membership in an association, non-profit foundation or political party and that order the online publication of this information violate the fundamental rights of these judges to the protection of personal data and respect for private life”. Although Poland justifies these requirements on the need to cleanse the Polish judicial system of the vestiges of communism, for the European court to know the present and past affiliation of the magistrates and then to be able to publish this information does not imply a reinforcement of the impartiality of the judges.

According to the ruling, “data relating to the membership of judges in non-profit associations or foundations may reveal their religious, political or philosophical convictions” and the online publication of this information “has the capacity to to expose judges to a risk of undue stigmatization, unjustifiably affecting the perception that both defendants and the general public have of them.”

The Commissioner for Justice, Didier Reynders, welcomed this Monday that the European ruling has settled the issue definitively and has asked Poland to change its legislation. The country’s authorities, however, do not seem willing to do so. The Polish Deputy Minister of Justice, Sebastian Kaleta, assures that the European court has no competence to question the organization of the Polish judicial system and that “This ruling may introduce great chaos in the Polish judiciary because it allows, among other things, that some judges challenge the statute of other judges”.