ATuesday evening, the EU Commission drew its sharpest sword in conflict with the government in Poland. She decided to send a rush request to the European Court of Justice (ECJ): to instruct Poland to overturn the Supreme Court's disciplinary chamber. Otherwise, Polish judges face “irreparable damage,” said a spokesman for the commission on Wednesday. The "intimidation effect" on the judges would increase. The CJEU could now bring down one of the most important reforms the national-conservative PiS government wants to restructure the judiciary within days.
The disciplinary chamber at the Supreme Court, which is to judge in disciplinary proceedings against judges – including those of the Supreme Court itself – was only launched by the government majority in 2018. Its ten judges were selected by the State Justice Council, which is clearly dominated by government-friendly representatives. In contrast, the majority of the Supreme Court judges, including President Malgorzata Gersdorf, have been able to hold onto their posts despite the government's attempt to drive them out of office by reducing their retirement age. The ECJ had already dealt with the disciplinary chamber in mid-November, at the request of the Supreme Court. The latter wanted to know whether the newly "added" disciplinary body met the basic requirements of European law.
Template for the Polish colleagues
The Luxembourg judges generally ruled that a court had to be independent. This was not the case if the objective circumstances in which the court was formed and the way in which its judges were appointed "raised legitimate doubts". This applies in particular to direct or indirect influences on the part of the legislature and the executive. The referring court must decide whether this is the case. However, the Luxembourg decision could be understood as a template for the Polish colleagues.
And this is how it happened: The Supreme Court in Poland stated at the beginning of December "that the Disciplinary Chamber is not a court in the sense of EU law and therefore not a court in the sense of national law". The government did not change anything in the chamber. Rather, before Christmas, she whipped another law through the Sejm. It increases disciplinary sanctions against judges, for example for “political” activities.
"Existing concerns reinforced"
The legislative process alarmed the EU Commission. Even before the Sejm had voted, Justice Commissioner Vera Jourova sent a letter to the highest Polish state organs. She complained that the draft law "reinforces the Commission's existing concerns" on the rule of law in Poland. Warsaw should first hear the Venice Commission of the Council of Europe. Usually, the Commission first waits to see how a legislative process ends. But Poland is now under special observation.
On Tuesday, the law came into the Senate, the second chamber of the Polish parliament. The opposition had surprisingly won a small majority there in the autumn. The Senate is likely to reject the draft in the next few days – it would be the Sejm, the House of Representatives, where the government has the majority. In the end, President Andrzej Duda would have to issue the law, which is expected, or refer it to the Constitutional Court for review. The EU Commission emphasized that its urgent application to the ECJ had nothing to do with this law, which affects all judges in the country; the Commission is closely monitoring the legislative process. Formally, that's right, Brussels could start new infringement proceedings on this matter at any time. However, if the ECJ complies with the urgent request, Polish judges would also be protected from further politically motivated attempts at intimidation. In Luxembourg, the intrusions into the independence of the judiciary are being followed closely.
Barley had been harshly criticized
The fact that the Commission acted so quickly could also be due to the SPD MEP Katarina Barley. The organized resistance to the recent Polish judicial reform for days. Barley, one of Parliament's vice-presidents, urged the Commission to apply for “interim measures” against the disciplinary penalty law. Last week she spoke to a former Berlin cabinet colleague about it: Ursula von der Leyen, now Commission President. "I am very happy that the ECJ exists in these times," said Barley on Tuesday.
"Now is the time to make it clear: This hustle and bustle is unacceptable," said Barley on Wednesday of the "Süddeutsche Zeitung". "In Poland you have to act with legal means and in Hungary you have to start with money." Prime Minister Viktor Orbán in particular supported his regime on the subsidies from Brussels. The European Christian Democrats had "watched Hungary for far too long and done nothing when Hungary was transformed into an illiberal democracy". Even in Poland, everyone would have looked away too long.
Financial consequences of violations
A future rule of law monitoring will examine all states every year in order to identify undesirable developments in good time. “This alleviates the accusation that this is a conflict between West and East. Even more important is the plan to anchor rules in the next EU budget that violations of the rule of law will have financial consequences, ”said Barley. Prime Minister of Poland Mateusz Morawiecki defended the reform. "In Germany, around thirty percent of the judges working in the GDR were unable to work after 1990 because they were too close to the totalitarian regime," he said. "We are now making the necessary personnel decisions."
. (tagsToTranslate) Katarina Barley (t) Malgorzata Gersdorf (t) CJEU (t) European Commission (t) European Union (t) PiS (t) Disciplinary Body