European court orders Poland to suspend judiciary panel for lack of independence

Europe’s highest court has ordered Poland to suspend a disciplinary panel that investigates decisions taken by the country’s judges because its impartiality and independence could not be guaranteed, possibly leading to negative repercussions on a national and EU level.

The European Court of Justice (ECJ) upheld an argument brought forward last year by the European Commission against its infringement procedures against Poland, which said the “disciplinary regime undermines the judicial independence of Polish judges by not offering necessary guarantees to protect them from political control”.

The suspension was requested by the European Commission as a set of interim measures in the legal battle against Poland’s judicial disciplinary system, which also led to the resignation of a number of Polish judges.

This is not the first legal battle by the Commission against Poland for its judicial reforms. In a complaint filed by civil society NGO Repubblika to the Commission last year, it referred to the fact that, in October 2018, the Commission took Poland to the ECJ for lowering the age at which Supreme Court judges were required to retire.

Repubblika had asked the Commission to look into whether Malta’s system of judicial appointments violated EU law. The organisation raised concerns about a number of the provisions of the Maltese Constitution and their implementation by the government.

In June 2019, the ECJ handed down a landmark judgment which ruled that Poland had breached EU law in the way it handled the judiciary, harming its independence.

However, in this particular instance, the Commission is contesting a 2017 decision by the Polish government to set up a Disciplinary Chamber of the Supreme Court, which reviews decisions taken in disciplinary proceedings against judges. This chamber is composed solely of new judges selected by the National Council for the Judiciary whose members are now appointed by the Polish parliament.

The guarantee of the independence of the Disciplinary Chamber was “essential in order to preserve the independence both of the Supreme Court and of those courts,” the ECJ said in its decision.

The mere prospect that judges sitting in the ordinary courts and Supreme Courts “may be subject to disciplinary proceedings, which may be referred to a body whose independence would not be guaranteed is likely to affect their own independence,” it said.

This lack of independence “is likely to cause serious damage to the EU legal order and thus to the rights which individuals derive from EU law and to the values on which the EU is founded, in particular, the rule of law”.

But the issue of rule of law is not only a concern in Poland as, two years ago, the Venice Commission also issued a set of recommendations on strengthening the rule of law and installing checks and balances and reform of the Maltese justice system.

These had been ignored by former prime minister Joseph Muscat, drawing criticism from many – including Pieter Omtzigt, the Special Rapporteur for the Parliamentary Assembly of the Council of Europe.

Omtzigt welcomed a recent decision taken by the government and Opposition who, in a joint motion, approved a number of judicial reforms in parliament. These have not yet been made public – a move that was criticised by civil rights NGO Repubblika and former European Court of Human Rights judge Vincent De Gaetano for its lack of transparency.

Omtzigt had raised a number of questions, including whether the government would wait for the Venice Commission’s feedback before implementing the reforms and whether a formal request had actually been filed.

The Special Rapporteur tasked with looking into the investigation on journalist Daphne Caruana Galizia’s assassination and the rule of law in Malta, whose report led to a public inquiry resisted by Muscat’s government for two years, also asked the government to forward a copy of the proposals submitted, clearly indicating the Council of Europe had been left out of the equation.

In its decision, the ECJ pointed out that, although the national courts fell within the competence of Member States, “when exercising that competence, the Member States are required to comply with their obligations deriving from EU law”.

It was up to each Member State to ensure that the “disciplinary regime applicable to judges of the national courts which are part of their system of legal remedies in the fields covered by EU law complies with the principle of the independence of the judiciary”.

This meant that the countries had to ensure that the decisions delivered in disciplinary proceedings brought against the judges of those courts were reviewed by a body “which itself satisfies the guarantees inherent for effective judicial protection, including that of independence”.

The Commission’s arguments about the lack of a guarantee of independence and impartiality of the Disciplinary Chamber appear founded.

But it seems that the Polish authorities were not too concerned about this, as its deputy justice minister Sebastian Kaleta said in a tweet that the ECJ had no competence to evaluate or suspend the constitutional organs of the Member States. “Today’s ruling is a usurping act violating Poland’s sovereignty”.

The ECJ will deliver its final judgement at a later date.  Poland is obliged to comply with this decision and, failure to do so would mean incurring thousands of euro in daily fines.