European Commission takes new step to protect judges in Poland against political control
On 3 April 2019, the Commission launched this infringement procedure on the grounds that the new disciplinary regime undermines the judicial independence of Polish judges and does not ensure the necessary guarantees to protect judges from political control, as required by the Court of Justice of the EU.
Specifically, the Polish law allows ordinary court judges to be subjected to disciplinary investigations, procedures and sanctions on the basis of the content of their judicial decisions, including the exercise of their right under Article 267 of the Treaty on the Functioning of the European Union (TFEU) to request preliminary rulings from the European Court of Justice.
Moreover, the new disciplinary regime does not guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which is composed solely of judges selected by the National Council for the Judiciary, which is itself appointed by the Polish Parliament (Sejm).
Furthermore, the new disciplinary regime does not ensure that a court ‘established by law' will decide in the first instance on disciplinary proceedings against ordinary court judges.
Instead, it empowers the President of the Disciplinary Chamber to determine, on an ad-hoc basis and with an almost unfettered discretion, the disciplinary court of first instance to hear a given case.
The new regime no longer guarantees that cases are processed within a reasonable timeframe, allowing judges to be permanently under the threat of pending cases, and it also affects judges' right of defence.
Poland had 2 months to respond to the arguments put forward by the Commission in its letter of formal notice.
Following a thorough analysis of the response from the Polish authorities, the Commission concluded that the response does not alleviate the legal concerns.
The Commission has, therefore, decided to move to the next stage of the infringement procedure.
The Polish authorities now have 2 months to take the necessary measures to comply with this reasoned opinion.
If Poland does not take appropriate measures, the Commission may decide to refer the case to the Court of Justice of the EU. ■