EC takes Poland before ECJ over independence of judges

It also asks the Court to order interim measures as to “prevent the aggravation of serious harm”

Photo: EU Didier Reynders.

The Commission decided on Wednesday to refer Poland to the Court of Justice of the EU regarding the law on the judiciary of 20 December 2019, which entered into force on 14 February 2020. The Commission also asks the Court of Justice to order interim measures until it has issued a final judgment in the case.

As Didier Reynders, EU Commissioner for Justice, told media, the Commission considers that the law on the judiciary undermines the independence of Polish judges and is incompatible with the Treaties. The Commission’s view is that the law prevents Polish courts, including by using disciplinary proceedings, 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.

Furthermore, the Commission considers 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.

The mere prospect for judges of having to face proceedings before a body whose independence is not guaranteed creates a ‘chilling effect' for judges and can affect their own independence.

The Commission considers that 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 on Wednesday 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.

It concretely asks for suspending 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.

The EU executive urges also for suspending the effects of decisions already taken by the Disciplinary Chamber of the Supreme Court on the lifting of judicial immunity, and suspending 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.

 

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