Poland’s disciplinary chamber for judges threatens rule of law – ECJ

10 August 2021 by Rosalind English

I have posted on the extraordinary goings-on in Thuringen, Germany where two Weimar judges, one family and one administrative, have been subject to searches by the public prosecutor’s office following their respective rulings containing comments critical of the various lockdown and testing measures during the C-19 pandemic. You can find my posts here, here and here.

So it’s something of an irony that, whilst a leading member state of the European Union is going after its judges for rulings of which it disapproves, the European Commission lodges an application for interim measures under Article 279 TFEU and Article 160(2) of the Rules of Procedure, requesting that the European Court of Justice order the Republic of Poland to suspend various Polish laws concerning disciplinary cases against judges. As the ECJ said, when considering the request,

The European Union is composed of States which have freely and voluntarily committed themselves to the common values referred to in Article 2 TEU, which respect those values and which undertake to promote them. In particular, it follows from Article 2 TEU that the European Union is founded on values, such as the rule of law, which are common to the Member States in a society in which, inter alia, justice prevails.

Fine words, indeed. But the aspiration needs some enforcement. On the 15th of July the European Court of Justice (ECJ) ruled that the moves by the Polish government to institute a “Disciplinary Chamber of the Supreme Court” interfered with the guarantees of impartiality and independence of the judiciary, as well as the protection of the judiciary from executive disciplinary action, was in breach of EU law (Case C‑791/19, action for failure to fulfil obligations under Article 258 TFEU).

In its press release, the ECJ notes that the Polish executive’s 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

This is quite a step. Under Polish law, judges are liable to disciplinary action for professional misconduct, including obvious and gross violations of the law and compromising the dignity of their office (disciplinary offences). Until these recent changes, this liability did not go to the content of their judgments. The EU Commission reacted quickly to this proposal:

the Commission claimed that the complaints made by it in its action against the new disciplinary regime applicable to Polish judges allege systemic breaches of the safeguards required in order to ensure the independence of those judges. The need for legal certainty therefore requires the case to be examined within a short time in order to dispel doubts as to the conformity of that regime with EU law.

In addition to its concerns about the new-found powers of the executive to take disciplinary proceedings against judges on the basis of the content of their judgments, the ECJ found that Poland had

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

It’s all in the EU Treaties. A Member State cannot amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU. The Member States are thus required to ensure that, in the light of that value, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of judges (judgments of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraphs 63 to 65 and the case-law cited, and in Asociaţia ‘Forumul Judecătorilor din România’ and Others, paragraph 162). Article 47 of the EU Charter on Fundamental Rights and Freedoms guarantees the right to effective judicial protection and the fundamental right to a fair trial, which means that courts be independent, which is inherent in the task of adjudication. This forms the basis of the principle that EU law will be protect the value of the rule of law. And it does it by

rules governing the disciplinary regime applicable to judges, the requirement of independence derived from EU law, and, in particular, from the second subparagraph of Article 19(1) TEU, means that, in accordance with settled case-law, that regime must provide the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions. 

In addition, the Commission argued, successfully, that any disciplinary regime applicable to judges should include essential guarantees making it possible to avoid any risk of that regime being used

as a system of political control of the content of judicial decisions, which requires the enactment of rules that define both the forms of conduct constituting disciplinary offences and the penalties actually applicable, that provide for the involvement of an independent body in accordance with a procedure which fully guarantees the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and that guarantee the possibility of challenging the decisions of disciplinary bodies before a court or tribunal.

The ECJ accepted this argument. In its ruling, it said that the Polish law applicable to ordinary courts and the Supreme court infringed the second subparagraph of Article 19(1) TEU,

inasmuch as those provisions of national legislation allow, in breach of the principle of judicial independence, the disciplinary liability of judges of the Polish ordinary courts to be put in issue on account of the content of their judicial decisions and thus allow the disciplinary regime applicable to those judges to be used as a means of exerting political control over their judicial activity.

Where the Court finds that there has been a failure to fulfil obligations, the Member State concerned must take the measures necessary to rectify the situation, in this case by the 16th of August, failing which, fines would be imposed.As the FT reported on Saturday 7 August, Poland’s justice minister said that this legal stand-off between Warsaw and Brussels was “attempted blackmail by the bloc”.