European Commission launched another infringement procedure against Poland regarding the new law on the judiciary

On 29 April 2020, the European Commission launched yet another infringement procedure against Poland by sending a Letter of Formal Notice to the government regarding the new law on the judiciary of 20 December 2019, which entered into force on 14 February 2020.

The new amendment of judiciary law is further undermining the judicial independence and the primacy of the EU law, according the Commission. The Commission already in the past started a series of infringement proceedings against Poland on the basis of protection of rule of law and independence of the judiciary as one of its cornerstones. In one of its ruling the Court of Justice concluded that lowering the retirement age of judges of the Supreme Court is contrary to EU law and breaches the principle of the irremovability of judges and thus that of judicial independence. In the most recent decision the ECJ ordered Poland to suspend its Disciplinary Chamber, as it could cause “serious damage to the EU legal order”.

The newest regulation from 2019 prevents Polish courts from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the Court of Justice. Moreover, the law imposes severe sanctions on judges who dare to defend judicial independence. Finally, the text also prescribes limitations on the freedom of association of judges.

After carrying out an analysis of the legislation concerned, the Commission concluded that several elements of the new law violate EU law:

First, the Commission notes that the new law broadens the notion of disciplinary offense and thereby increases the number of cases in which the content of judicial decisions can be qualified as a disciplinary offence. As a result, the disciplinary regime can be used as a system of political control of the content of judicial decisions. The new law violates Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union, which establishes a right to an effective remedy before an independent and impartial court.

Second, the Commission notes that the new law grants the new Chamber of Extraordinary Control and Public Affairs of the Supreme Court the sole competence to rule on issues regarding judicial independence. This prevents Polish courts from fulfilling their obligation to apply EU law or request preliminary rulings from the EU Court of Justice. The new law is incompatible with the principle of primacy of EU law, the functioning of the preliminary ruling mechanism as well as with requirements of judicial independence.

Third, the Commission notes that the law prevents Polish courts from assessing, in the context of cases pending before them, the power to adjudicate cases by other judges.This impairs the effective application of EU law and is incompatible with the principle of primacy of EU law, the functioning of the preliminary ruling mechanism and requirements of judicial independence.

Finally, the Commission notes that the new law introduces provisions requiring judges to disclose specific information about their non-professional activities. This is incompatible with the right to respect for private life and the right to the protection of personal data as guaranteed by the Charter of Fundamental Rights of the EU and the General Data Protection Regulation.

The Polish Government has now two months from this date to reply to the Letter of Formal Notice.

New Polish law on the judiciary has been heavily criticised also by other international stakeholders, as the Council of Europe´s Venice Commission according which these legislative changes “curtail the freedoms of expression and association of judges and prevent Polish courts from examining whether other courts in the country are “independent or impartial” under European rules…and the Polish judges are put into the impossible situation of having to face disciplinary proceedings for decisions which may be required by the European Convention on Human Rights, or under the law of the European Union, and other international instruments.“

In his official reports and statements, the UN Special Rapporteur on the Independence of Judges and Lawyers has highlighted that judges are allowed to make comments in defense of fundamental human rights and the rule of law or to participate in activities or debates concerning national judicial policy or the administration of justice in the country. They should definitely play an active role in any discussion concerning the development of new legislation concerning their status and, more generally, the functioning of the judicial system.

Provided by the PA Team.