On Tuesday, the European Commission took two decisions in its continuing dispute with Poland over the chamber of its Supreme Court responsible for disciplining judges. The Commission decided to request the European Court of Justice to impose financial penalties, in the form of substantial daily payments, on Poland in order to persuade it to comply with a July 14 ECJ order pertaining to the chamber. And it decided to send a letter of formal notice to Poland for failing to comply fully with the ECJ’s July 15 judgment that Poland’s disciplinary regime for judges is not compatible with EU law. If the Polish reply is not satisfactory, the Commission may bring the case back to the ECJ, which could result in an order to take the necessary measures to comply with the judgment—and further payments if it fails to do so.
The two decisions are the latest developments in the long-running and multi-faceted dispute between the EU and Poland over the rule of law that began soon after the October 2015 election. In that election, Law and Justice (PiS), the conservative and nationalist party headed by Jarosław Kaczyński, won 38 percent of the vote in and a narrow 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 its political control over those institutions.
A new law on Poland’s 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 the impact of those provisions on the independence of the Court, and in September 2018, the Commission referred the case to the ECJ. 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. 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. Poland refused to comply with the ruling 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 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; the effects of decisions already taken by the Chamber; and 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 doesn’t have to comply with the interim measures ordered by the ECJ. After the Tribunal’s decision, Małgorzata Manowska, the president of the Supreme Court, lifted a partial suspension of the chamber but wrote to President Andrezj Duda, Prime Minister Mateusz 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.
Also on July 14, ECJ Vice President Rosario Silva de Lapuerta, informed of the Tribunal’s decision and aware the ECJ would be issuing its judgment in the case the next day, issued an emergency order upholding all of the Commission’s requests until the final verdict was 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.”
In its July 15 judgment, the ECJ 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 would 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 it anticipates will have that effect by August 16. Failing that, she said the Commission would request the ECJ to impose a penalty payment on Poland. Jourová also stated that if Poland didn’t confirm by August 16 that it would take measures to fully comply with the ECJ’s July 15 judgment, the Commission would launch an infringement procedure under Article 260(2), which would allow additional financial sanctions.
On July 22, trying to find some middle ground between the many enthusiastic supporters of the Polish Constitutional Tribunal’s decision and the EU’s insistence that Poland comply with the ECJ’s July 14 order and July 15 judgment, Morawiecki suggested 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.”
On July 30, Duda, commenting on the letters Manowska had written to him and the other three leaders 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 them, Manowska issued an order that no new cases would go to the Disciplinary Chamber until legislative changes were introduced or until the ECJ issued a final verdict in the case. For cases that had already been assigned to judges, she said she or the head of the chamber would ask them to decide whether they would hear them.
On August 7, Kaczyński, although only one of several Deputy Prime Ministers the de facto political leader of the government, made a public statement in which he clearly came down on Morawiecki’s side in the heated debate among members of the government about how to respond to the EU, signaling that Poland would 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….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 would 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.”
On August 16, the EU’s deadline for confirmation that Poland would comply with the ECJ order and judgment, Morawiecki said a “comprehensive response” was being prepared and “will be submitted to the European Commission by the end of the day in due course.” The government subsequently announced it had sent a letter to the Commission 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 would submit a motion to the ECJ for revocation of the interim measures it ordered in regard to the Disciplinary Chamber.
On Tuesday, after studying Poland’s response, the Commission made it clear it was not persuaded Poland will in fact comply with the ECJ’s July 14 order and July 15 judgment. In regard to the July 14 order, it said, “Poland has not taken all the measures necessary to fully comply with the Court’s order. In particular, the provisions concerned by the order continue to be applied. For instance, the Polish authorities recently opened a disciplinary investigation against an ordinary court judge who applied the order of 14 July in a case pending before him. Moreover, the Disciplinary Chamber continues functioning.” In regard to the July 15 judgment, the Commission said, “Poland failed to take the necessary measures to implement it. Poland informed about the intention to dismantle the Disciplinary Chamber in its current form, but without providing any further details. For example, the President of the Disciplinary Chamber continued to designate disciplinary courts of first instance to hear disciplinary cases of ordinary court judges. If the Commission finds that the Polish reply to today’s letter of formal notice is not satisfactory as a next step, the Commission may bring the case, once more, before the Court of Justice.”
There is a great deal at stake in this dispute in addition to reestablishing the rule of law in Poland, as important as that obviously is. Most importantly, the Commission has not only asked the ECJ to impose financial penalties on Poland but has made it clear that it won’t approve Poland’s request for €23.9 billion in grants and €12.1 billion in loans through the EU’s new Recovery and Resilience Facility, the largest component of the EU’s €750 billion recovery plan, unless it complies fully with the ECJ’s July 14 order and July 15 judgment. Speaking last week to the European Parliament’s Economic and Budget Committee, Paolo Gentiloni, the Commissioner for the Economy, and Commission Executive Vice President Valdis Dombrovskis made it clear that Poland’s challenge to the primacy of EU law and, in particular, its failure to say precisely how it will modify the Supreme Court and its Disciplinary Chamber to comply with the ECJ’s order and judgment, was holding up the Commission’s approval of Poland’s request to the RRF. And Didier Reynders, the Commissioner for Justice, said bluntly in an interview the EU won’t disburse any of the €36 billion unless Poland substantially changes the disciplinary regime for judges. He also said the financial penalties levied by the ECJ should be substantial: “We are at the end of the so-called dialogue on this with Poland. We have tried to engage in a real dialogue with some letters and some documents, then before the Court. We have received positive reactions from the Court of Justice but there is no intention from Poland to be in full compliance with ECJ rulings, and so the next step is financial.”
David R. Cameron is the former director of the MacMillan Center’s Program in European Union Studies.