Niels Kirst (Assistant Professor of European Law at Dublin City University)

 

“The value of the rule of law is an integral part of the very identity of the European Union as a common legal order and is given concrete expression in principles containing legally binding obligations for the Member States.”[1]

In a recent ruling, the Court of Justice of the European Union (Court of Justice) condemned Poland’s 2019 judicial reform, stating that it violates EU law and fails to ensure the independence of national judges (Court of Justice Judgement of 5 June 2023, C-204/21). The Court of Justice emphasized that the rule of law is a fundamental value of the European Union (EU), and that Member States cannot disregard their legally binding obligations by invoking national provisions or national case law.

Critics had called this controversial Polish measure the “Muzzle Law” since it allowed the government to dismiss judges whose rulings it does not approve of and it subjected judges who are criticizing the government’s reforms to disciplinary proceedings at a specifically created chamber (the Disciplinary Chamber) (for further analysis of the law see here and here).

For years, Poland’s national conservative PiS government has been undertaking judicial restructuring efforts despite facing international criticism. The European Commission (Commission) has filed multiple lawsuits against these judicial reforms. As Poland has been unwilling to implement the Court of Justice’s orders, it imposed a daily penalty of one million euros. However, the fine was later reduced by half due to some changes made by the Polish government to the judicial system.

The current dispute centred around a law on disciplining judges. In its judgment, the Court of Justice upholds the Commission’s complaint against the Polish judicial reform. The judgment sheds light on the ongoing conflict between the Polish government’s actions and EU law regarding the protection of the rule of law and judicial independence enshrined in Article 19 (1) TEU. The Court of Justice structured its findings on the Polish law (the Amending Law) in five points:

• First, the Court of Justice affirmed that the responsibility for assessing a Member State’s adherence to values and principles such as the rule of law, effective judicial protection, and judicial independence rests with that Member State itself. When exercising their authority in organizing the justice system, Member States must comply with their obligations under EU law. They are therefore obligated to prevent any regression in their judicial system that would undermine the independence of judges, considering the EU value of the rule of law enshrined in Art. 2 TEU. This fundamental value, which is deeply intertwined with the EU’s identity, is expressed through legally binding obligations that Member States cannot disregard by relying constitutional provisions or constitutional case law.
• Secondly, the Court of Justice reaffirmed its previous findings that the disciplinary chamber at the Polish Supreme Court does not meet the standards of independence and impartiality. The Court of Justice emphasized that even the mere possibility of disciplinary consequences when applying EU law could undermine the independence of national judges. In 2022, Poland agreed to abolish the disciplinary chamber in the hope of easing the conflict with Brussels and getting EU funds from the Next Generation EU Fund (NGEU).
• Third, the Court of Justice stated that the provisions of the Polish law were overly broad and vague, creating a risk that they could be interpreted in a way that prevents national courts from seeking preliminary rulings from the Court of Justice. This interpretation would hinder access to an impartial and independent court, which is a fundamental right of EU citizens. The Court of Justice’s judgment highlights the importance of ensuring the ability of national courts to effectively enforce EU rights and seek guidance from the Court of Justice when needed.
• Fourth, the Court of Justice identified another violation of EU law in the requirement that only one national court has the authority to assess whether the conditions for effective judicial protection are met. If another national court were to review compliance with EU law, it could be treated as disciplinary proceedings under the provisions of the Amending Law. This “monopolistic control” undermines the fundamental right to effective judicial protection under EU Law.
• Fifth and finally, the Amending Law stipulated that Polish judges had to provide a written declaration disclosing their potential affiliations with associations, non-profit foundations, or political parties. This information was to be published online. The disclosed data could reveal the religious, political, or philosophical beliefs of the judges, exposing them to the risk of unwarranted stigmatization if the information became freely accessible. The Court ruled that these provisions violated the fundamental rights of the judges, specifically their right to personal data protection and respect for private life.

Overall, this judgment is a further clarification that the Polish judicial reforms which have been ongoing since 2015 are against EU law. Specifically, the changes to the highest courts in Poland and the undermining of direct access to the Court of Justice are clear violations of EU fundamental rights and values. They undermine the fundamental right of Polish EU citizens to access their rights under EU law.

Whether this judgment will change the stance of the Polish government is unlikely. Poland is currently in negotiations with the Commission to unlock much needed money from the NGEU Fund. To unlock that money Poland must fulfil certain milestones in its national Recovery and Resilience Plan, which include a restoration of judicial independence in the Polish judicial system. So far, Poland’s €35.4 billion authorized under the Recovery Fund remain frozen.

Moreover, Poland is currently in election mode, with parliamentary elections upcoming this year. Therefore, there is the risk that the incumbent government will use this judgment as a further tell a story of us (Poland) against them (EU). Ultimately, Poland is currently heavily criticised for a proposed “Tusk Law” to undermine the opposition candidate and former European Council President, Donald Tusk, in the upcoming elections. Therefore, the next infringement proceeding against Poland by the Commission before the Court of Justice seems to be a foregone conclusion.

 

[1] Rule of law: the Polish justice reform of December 2019 infringes EU law (5 June 2023)’, in Jacques René Zammit (ed.), Press Release No 89/23 (Kirchberg, Luxembourg: Court of Justice, Communications Directorate, Press and Information Unit).

 

The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.