Wednesday, 08 September 2021
In a rare move, the Commission decided yesterday to request the European Court of Justice to impose penalties on Poland to ensure compliance with its rulings concerning judicial independence in the country.
The Commission has been claiming for some years that there is a clear risk of a serious breach of the rule of law in Poland but until now it has been unable to halt the enactment of new laws that threaten basic legal principles and the independence of the judiciary.
“Justice systems across the European Union must be independent and fair. The rights of EU citizens must be guaranteed in the same way, wherever they live in the European Union,” commented European Commission President Ursula von der Leyen. Stressing the importance of the Commission’s decisions, two Commissioner’s added their voices.
Vice-President for Values and Transparency, Vera Jourová said that “The rulings of the European Court of Justice must be respected across the EU.” The Commissioner for Justice, Didier Reynders added that he “always said that the Commission will not hesitate to take all the necessary measures to ensure the full application of EU law”.
According to the European court (ECJ), the new Polish Disciplinary Chamber is incompatible with EU law since it might impose sanctions against judges. Furthermore, the EU and Poland are butting heads on the issue of the primacy of EU law. For Member States, EU law takes precedence over national law – something Poland challenged in a reply to the Commission in mid-August.
In fact, the Commission took two separate decisions on Tuesday (7 September). First, it is asking the Court to impose a daily penalty payment on Poland for as long as the measures imposed by the Court’s previous order concerning the Disciplinary Chamber are not fully implemented. Contrary to what Poland claims, its Disciplinary Chamber is still functioning in defiance of the ECJ order.
The ECJ will decide on the amount and days of the penalty payment. A senior Commission official explained at a briefing that it was difficult to estimate the amount and the period but the Court could impose the fines retroactively from 14 July when its order on interim measures was issued.
The Polish government claims that the ECJ has not the power to dismantle or suspend the work of the Disciplinary Chamber but in that case, according to the Commission, it would be up to the Parliament to take action and pass the necessary legislation.
Second, in a related case, the Commission also decided to send a letter of formal notice to Poland for not taking the necessary measures to comply fully with an ECJ judgment that Polish law on the disciplinary regime against judges is not compatible with EU law.
The Commission decisions have not been made public but the senior official said the letter dealt with the disciplinary regime in general and did not take issue with Poland on its rejection of the primacy of EU law.
Is there any best practice in the EU on disciplinary regimes? Some countries have a judiciary ombudsman which examines complaints against misconduct of judges and trials.
The Commission declined to reply to a question whether it has discussed alternative legal options to ensure judicial accountability while maintaining judicial independence with the Polish authorities. As the Polish Disciplinary Chamber functions now, the content of a court ruling can be classified as a disciplinary offence, a Commission official explained.
A Polish government spokesperson said yesterday that the implementation of interim measures ordered by the ECJ rests with the Supreme Court (of Poland). “As in EU every country, in Poland the executive power is independent of the judiciary and therefore the judgment of the ECJ may be applied by the Supreme Court.”
“We cannot speak of the EU as a safe space for human rights if there is a failure to respect the rule of law in Poland,” Roger Casale, a former British MP and secretary general of the citizen’s rights NGO New Europeans, told The Brussels Times.
Commenting from the Economic Forum in Karpacz, Poland, he expressed his support for Monika Frakowiack, a District Judge of Poznan, who has protested against the functioning of the country’s supreme court and the Disciplinary Chamber. “She and others are fighting not just for the democratic future of Poland but also for the kind of Europe I believe in.”
Note: The article has been updated to include comments on the Commission decisions.
The Brussels Times