After the EU demands compliance with ECJ decisions, Poland says it will replace judges’ disciplinary chamber

In the October 2015 election in Poland, Law and Justice (PiS), the conservative and nationalist party headed by Jarosław Kaczyński, won 38 percent of the vote and a wafer-thin majority in the Sejm, the lower house of the parliament, that enabled it to form the country’s first one-party government since the advent of democratic politics in 1991. Soon thereafter, the PiS government embarked on a number of important institutional changes involving the media, the universities, and the courts that were designed to enhance, and indeed ensure, its political control over those institutions and that, once enacted, gave rise to a prolonged and continuing conflict between Poland and the EU over the rule of law.   

A new law on the Supreme Court was published in December 2017 and took effect in April 2018. Three months later, the EU Commission launched an infringement procedure against Poland in regard to provisions in the law pertaining to the retirement of judges and their impact on the independence of the Court. In September 2018, the Commission referred the case to the ECJ and in December 2018, the ECJ issued an order imposing interim measures to stop the implementation of the law. In April 2019, the Commission launched another infringement procedure against Poland on the grounds that the new disciplinary regime for judges described in the law undermined their judicial independence by not protecting them from political control. In particular, it said the new regime didn’t guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which reviews decisions taken in disciplinary proceedings against judges. The Chamber was composed entirely of new judges selected by the National Council for the Judiciary, whose members are appointed by the Sejm. In October 2019, the Commission referred the case to the ECJ and in January 2020, it asked the ECJ to impose interim measures suspending the functioning of the Disciplinary Chamber. In April 2020, the ECJ ruled that Poland must immediately suspend the application of the provisions in the law pertaining to the powers of the Chamber in disciplinary cases concerning judges until the ECJ had rendered its final judgment in the case.

Also in April 2020, the Commission launched another infringement procedure against Poland in regard to a new law on the judiciary that amended a number of legislative acts governing the functioning of Poland’s judicial system on the grounds that the law, which entered into force in February 2020, undermines the judicial independence of judges, is incompatible with the primacy of EU law, prevents Polish courts from directly applying certain provisions of EU law protecting judicial independence, and prevents them from submitting references for preliminary rulings on such questions to the ECJ. The Commission gave Poland two months to reply to the letter of formal notice. Judging its response to be unsatisfactory, last October the Commission moved forward with the infringement process by sending Poland a “reasoned opinion” on the matter.

Poland refused to comply with the ECJ’s April 2020 ruling that it must immediately suspend  application of the provisions pertaining to the powers of the Disciplinary Chamber, and in December the Commission sent Poland an additional letter of formal notice that added a new grievance to the case, taking issue with the continued functioning of the Chamber in regard to cases concerning judges. After concluding that Poland’s response to the letter wasn’t satisfactory, in January the Commission adopted an additional “reasoned opinion” on the matter, and in March it informed the ECJ that Poland “violates EU law by allowing the Disciplinary Chamber of the Supreme Court—the independence of which is not guaranteed—to take decisions that have a direct impact on judges and the way they exercise their function.” It asked the ECJ to order interim measures to “prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order.” Specifically, it asked the ECJ to suspend the provisions empowering the Disciplinary Chamber to decide on requests for lifting judicial immunity as well as on matters of employment, social security and retirement of judges, to suspend the effects of decisions already taken by the Chamber, and to suspend the provisions preventing Polish judges from directly applying provisions of EU law protecting judicial independence and from putting references for preliminary rulings to the ECJ.

On July 14, in response to an inquiry from the Disciplinary Chamber of the Supreme Court whether the ECJ could in fact order suspension of the provisions in the law empowering the Chamber to decide on matters involving the immunity and employment of judges, Poland’s Constitutional Tribunal ruled that it does not have to comply with the interim measures ordered by the ECJ. As one Tribunal judge put it, “With the best will to interpret the [Polish] constitution, it is impossible to find in it the powers of the [EU] Court of Justice to suspend Polish laws concerning the system of Polish courts.” Justice Minister Zbigniew Ziobro, who designed the disciplinary system, commended the decision, saying, “Fortunately the constitution and normality prevail over an attempt…to interfere in the internal affairs of a member state, in this case Poland.”

Also on July 14, ECJ Vice President Rosario Silva de Lapuerta, aware that the ECJ would be issuing its judgment in the case the next day, issued an emergency order upholding all of the requests of the Commission until the final verdict had been issued. That meant, the order said, that “Poland is obliged to immediately suspend application of domestic provisions relating in particular to the powers of the Disciplinary Chamber of the Supreme Court.”

On July 15, the Commission issued a statement in which it said it was “deeply concerned” by the decision of the Constitutional Tribunal that the interim measures ordered by the ECJ were inconsistent with the Polish Constitution. It noted that EU law has primacy over national law and that all decisions by the ECJ, including orders for interim measures, are binding on all member states and said it expected Poland to ensure that all decisions of the ECJ are fully and correctly implemented, including its July 14 order to suspend the application of certain provisions in regard to the functioning of the Disciplinary Chamber.

Also on July 15, the ECJ issued its judgment in the case. It said that, “taken together, the particular context and objective circumstances in which the Disciplinary Chamber was created, the characteristics of that Chamber, and the way in which its members were appointed are such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of that body to external factors, in particular the direct or indirect influence of the Polish legislature and executive, and its neutrality with respect to the interests before it and, thus, are likely to lead to that body’s not being seen to be independent or impartial, which is likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in those individuals.” It concluded that “by failing to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court,…by allowing the content of judicial decisions to be classified as a disciplinary offence involving judges of the ordinary courts,…by conferring on the President of the Disciplinary Chamber of the Supreme Court the discretionary power to designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of the ordinary courts…and, therefore, by failing to guarantee that disciplinary cases are examined by a tribunal ‘established by law’, and by failing to guarantee that disciplinary cases against judges of the ordinary courts are examined within a reasonable time…and by failing to guarantee respect for the rights of defence of accused judges of the ordinary courts, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1), Treaty on European Union.” Article 19(1) requires that national bodies which can rule as courts or tribunals guarantee effective judicial protection by their independence and impartiality. In addition, the Court found that “by allowing the right of courts and tribunals to submit requests for a preliminary ruling to the Court of Justice to be restricted by the possibility of triggering disciplinary proceedings, the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267, Treaty on the Functioning of the EU.” Article 267 states that the Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and the validity and interpretation of acts of the institutions, bodies, offices and agencies of the EU.

On July 20, Commission Vice-President Vĕra Jourová, in announcing the Commission’s adoption of its 2021 report on the rule of law, also announced that the Commission had decided to empower Justice Commissioner Didier Reynders to adopt measures to induce Poland to comply with both the July 14 order and the July 15 judgment of the ECJ. She said the Commission had sent a letter to the Polish government, asking it to confirm that it will fully comply with the ECJ’s July 14 order in regard to the Disciplinary Chamber and stating that it must inform the Commission about the measures foreseen to that effect by August 16. Failing that, she said, the Commission will request the ECJ to impose a penalty payment on Poland. Jourová also stated that if Poland does not also confirm that it will take necessary measures to fully comply with the ECJ’s July 15 judgment, the Commission will launch an infringement procedure under Article 260(2), meaning that also in this case it will ask for financial sanctions if Poland does not remedy the situation by August 16.

Jourová didn’t mention, but it was obvious to all, that the EU has an additional, and substantial, sanction available to it if Poland fails to comply with the ECJ’s July 14 order and July 15 judgment: Poland has applied for €23.9 billion in grants and €12.1 billion in loans through the EU’s new Recovery and Resilience Facility to assist its recovery from the economic effects of the pandemic. It submitted the required recovery and resilience plan to the Commission in early May. The Commission has received plans from 24 other states and has approved 18 of them thus far, 16 of which have subsequently been approved by the Council. The Commission hasn’t yet approved Poland’s plan and there’s no reason to think it will do so if Poland doesn’t comply with the ECJ’s order and judgment.

Perhaps with that thought in mind, on July 22, responding to Ziobro and the many others who endorsed the Constitutional Tribunal’s decision and rejected the ECJ’s judgment, Prime Minister Mateusz Morawiecki struck a more moderate tone, suggesting that the purpose and functioning of the Disciplinary Chamber should be reconsidered: “Today we are in a situation where the activities of the Disciplinary Chamber of the Supreme Court can and should be reviewed. And this is because this chamber certainly did not meet all expectations, including mine…We are aware, as a Polish society—I think 80, if not 90 percent, of the society—that judges had largely impunity until recently and actually I have not seen any big change in terms of what the situation was before. So, just like any system, any reform, including this one, needs a new analysis.”

After the Constitutional Tribunal’s July 14 decision, Malgorzata Manowska, the president of the Supreme Court, lifted a partial suspension of the chamber but wrote to President Andrezj Duda, Morawiecki, and the speakers of the two houses of parliament calling for “swift but well-thought-through changes to the law” removing the shortcomings in the law pertaining to the Disciplinary Chamber and bringing it into line with EU law. On July 30, Duda, commenting on the letters that were posted that day on the Supreme Court’s website, said he agreed with Manowska and that “everything indicates that legislative changes will be needed” and that it’s important that judges can be confident the disciplinary system is “really transparent, fair and honest.” Two days later, Morawiecki said he wanted to resolve the issue with the EU: “The situation is complex because we are an EU member, we want to be in the EU, we benefit from free trade, Polish companies are growing, employees have higher earnings. For that reason we must achieve some kind of accord with the EU.” Toward that end, he said he would be proposing amendments to the way judges are disciplined.

On August 5, responding to the ECJ decisions and the EU’s insistence that Poland comply with the decisions, Manowska issued an order that no new cases will go to the Disciplinary Chamber until legislative changes are introduced or until the ECJ issues a final verdict in the case. For cases that have already been assigned to judges, she said she or the head of the chamber will ask them to decide whether they will hear them. Her order prompted Ziobro, the justice minister who also heads the small United Poland party that is part of the governing coalition (and without which Morawiecki would not have a majority in the Sejm), to say the next day that she had bowed to the demands of “colonial” EU officials: “The ECJ says that Poles are not allowed to do what is OK for the Germans or the Dutch or the Spanish to do. That is a colonial mentality, which has nothing to do with the law…. I am a staunch opponent of succumbing to the illegal blackmail of the EU carried out by the ECJ. If we agree today to the illegal diktats of the ECJ in matters in which it does not have the right to interfere, then tomorrow the ECJ will issue a verdict obliging Poland for example to introduce gay marriage and the adoption of children by such couples…The belief that the EU is a good uncle and gives us money, and that we should accept all its demands at all costs, is propaganda and false.” When asked if Poland should remain in the EU at any price, he said, “At any price we should strive to defend our autonomy and our position within the EU. Otherwise Poles will lose from EU membership. So be in, but not at any price.” He also made it clear that he disagreed with the more EU-accommodating tendencies of Morawiecki: “The prime minister is a proponent of seeking compromises, and we consider that the aggression of the EU should be met with a tough response.”

The day after Ziobro’s outburst, Jarosław Kaczyński, the long-time leader of PiS and, notwithstanding his position as a Deputy Prime Minister, the de facto political leader of the government, stepped into the fray and clearly came down on Morawiecki’s side, signaling that Poland will modify the law pertaining to the Disciplinary Chamber: “We will dissolve the Disciplinary Chamber as it currently operates and in this way the subject of the dispute will disappear.” He said the government will do that not because of the ECJ’s decision, which he said Poland doesn’t recognize, but, rather, because the government has been dissatisfied with it and has been planning to make some changes: “We want to reform the chamber not because of the EU Court of Justice ruling, but simply because this chamber has not fulfilled its obligations.” He said the government will bring forward a proposal to modify the disciplinary regime in September: “It will be a completely different entity. That will be a test as to whether the EU is ready to show at least a semblance of good will, or whether the rule is that Poland should be ruled by those who are picked by the EU institutions.”

Yesterday Morawiecki said Poland would submit a response to the Commission’s request that it confirm by August 16 that it will comply with the ECJ’s July 14 order and July 15 judgment. He said a “comprehensive response” was being prepared and “will be submitted to the European Commission by the end of the day in due course.” This morning the government said it had sent a letter to the Commission yesterday informing it that it “plans to dissolve the Disciplinary Chamber in its current form” and draft new regulations concerning a disciplinary system for judges as part of a wider reform of the judicial system in the coming months: “Poland will continue reforms of the judiciary, also in the area of judges’ answerability, aimed at improving the efficiency of this system.” It also reiterated its view that the EU has no jurisdiction to interfere with the way Poland’s judicial system operates and said it will submit a motion to the ECJ for revocation of the interim measures it ordered in regard to the Disciplinary Chamber. This morning a Commission spokesman confirmed that Poland’s letter had been received and was being analyzed.

Meanwhile, as the Commission studies Poland’s letter, attention in Warsaw will no doubt be focused on the increasingly-precarious state of the governing coalition. Since the 2019 election, PiS has governed, until last week, with two small parties, Ziobro’s United Poland and Agreement, led by Jarosław Gowin. Without both of those parties, the government would lack a majority in the Sejm. Last Tuesday, after Gowin, a Deputy Prime Minister and minister for development, labor and technology, strongly objected to the tax increases needed to finance the government’s proposed “Polish Deal” of economic reform, Morowiecki dismissed him, and the next day Agreement pulled out of the coalition, thereby depriving the government of its majority. There are any number of small parties on the political right in Poland and Morowiecki was able to patch together a thin majority in favor of a contentious bill that day prohibiting media companies not owned in the European Economic Area from operating in Poland. Nevertheless, the fact remains that the government no longer has a majority, which will not only make governing more difficult but could also lead to a decision to call another election before the next scheduled one in 2023.

David R. Cameron is the former director of the MacMillan Center’s Program in European Union Studies.