During the hearing at the Court of Justice in case C-791/19 (Commission v Poland), on Tuesday 1 December, 5 Member States intervened (for a report, see here). They did so to support the Commission in seeking the Court of Justice to declare that Poland is in violation of Union law, particularly Article 19 TEU. In their view and that of the European Commission, this violation results from running a disciplinary regime for judges that do not fulfill the requirements of independence and impartiality. The five Member States defending the rule of law coordinated their interventions and engaged in considerable detail with the situation in Poland in an unprecedented public way. This is what they said.

Belgium

“We are not intervening in support of the Commission in this case to attack Poland. We do so because of concerns we have regarding the disciplinary system for judges given the analysis undertaken by the UN, the Council of Europe, and NGOs such as the Helsinki Foundation, the International Commission of Jurists, the Justice Defence Committee, and Amnesty International. We refer to these not as a direct source of Union law, but rather to underscore the spirit of openness, mutual trust and exchange of best practices – all that is good in the exchange between States. It follows from the Court’s caselaw itself, e.g. Aranyosi, that any Member State in order to avoid violating Union law must rely on such documentation when applying legislation based on mutual recognition. Therefore, this documentation cannot be simply ignored in the context of Union law. Warnings in one context, for example the Council of Europe’s Parliamentary Assembly Report on the rule of law in Poland of January this year, need to be taken into account.

An ever-growing chorus of concern is raised over the disciplinary regime for judges in Poland. While it is extremely difficult not to listen to national and international experts, it is simply impossible not to hear them. The large majority of disciplinary proceedings have been brought against judges who have openly criticised the reform of the judicial system, or against judges who have adopted decisions which are not favourable to the interests of government parties. Judges have been disciplined simply for sending references to this Court. This is a form of harassment. National courts have a right under Article 267 TFEU to submit such questions. If disciplinary proceedings are opened for exercising this right, then Union law is tampered with. More recent adjustments to Polish law in this regard seem, according to the OSCE, to have as a goal to prevent any court from contesting the legitimacy of any new judicial body set up under new rules. We believe that the warnings voiced by these organisations should not be ignored. We coordinated our submission with Denmark, the Netherlands, Finland and Sweden to cover all the various arguments to be brought up during this hearing.”

Denmark

“It is not uncommon for the Danish government to begin a pleading before this court by pointing out that a particular case is fundamental. This case is fundamental, however, not merely in a specific field of the law but is instead of fundamental importance for EU law at a horizontal level. This case is about the foundations on which the EU’s legal order and EU cooperation are based and built on, particularly the rule of law, the preliminary ruling procedure and mutual trust between national courts in the EU. It should be set in the stone of the EU’s foundations that every Member State must respect the rule of law. All Member States must respect the rules of the game. And none is above the requirements that all reasonable doubts in the mind of the public about judicial independence must be dispelled. Independent courts are a premiss for European cooperation as a whole. It is an immutable principle that only independent courts can ensure effective legal protection. Only independent courts can perform the cooperation procedure under Article 267 TFEU, thereby helping the guarantee the application of Union law in all Member States, for the benefit for all businesses and all citizens throughout the EU. Member State measures that challenge, undermine or infringe this independence must be brought to an end. Otherwise there is a risk that cracks will appear in the EU’s common foundations. The Danish governments wants to emphasise this point through its participation in this case in support of the Commission.

In other cases the Polish government has followed the judgments of this Court. The same has not occurred in this case. On 18 November the Disciplinary Chamber ruled against Judge Igor Tuleya. The case is an example of the fact that the Disciplinary Chamber as a court is still an active part of the Polish legal system. This demonstrates that Poland is failing to comply with the Treaty requirement that the Member States shall provide effective legal protection through independent courts. Taken together it can be established that, unfortunately, the necessary guarantees of respect for the rule of law are not present. For these reasons, we submit that the Commission’s action that Poland has failed to fulfil its obligations should be upheld.”

The Netherlands

“Let me begin with why we find this case so important. On 19 November of last year, your Court delivered judgment in AK. We find this judgment clear. A Disciplinary Chamber, like that of the Polish Supreme Court, does not satisfy the criteria for judicial independence. Such a disciplinary chamber can no longer hand down decisions. Now here we are, one year later, and AK is still not being complied with. Recently new depths were plumbed when the Disciplinary Chamber suspended the judicial immunity of Judge Tuleya. Other developments in Poland since AK show too that compliance with the guarantee of judicial independence cannot always be procured via the preliminary ruling procedure. This is highly problematic. Compliance with this requirement is of a fundamental nature. If judicial independence is tampered with in any Member State, then the proper effect of EU law across the board is jeopardized in that Member State. For this reason, it is crucial that the Commission, as a Guardian of the Treaties, takes action if judicial independence is at issue. It is crucial that it uses the instrument of infringement proceedings in order to secure judicial independence in that Member State. This is in the interest of all Member States. For this reason, we stand with the Commission in this case.

The principle of judicial independence requires that disciplinary proceedings contain safeguards to prevent judges to be subjected to disciplinary proceedings because of the content of their judgments. This is primarily because of what a disciplinary procedure is for. It is not meant to check the content of judicial decisions. There are other means of doing that. If a court interprets the law incorrectly, its decision can be challenged on appeal. If it concerns a national court of the last instance, in certain circumstances it can lead to an action for state liability under Union law. The object of a set of disciplinary rules is instead to maintain the integrity of the judicial office. In so doing, such rules help maintain public trust in courts’ rulings. That is not maintained if disciplinary proceedings are initiated to check the content of judgments. Judges must fulfill their tasks completely autonomously. They must be shielded from outside interference or pressure. Their independent assessment entails an assessment of the merits, evaluation of evidence, and interpretation of the law. None of this should be able to trigger a disciplinary proceeding. This does not prevent disciplinary proceedings if a judge has acted in bad faith or with gross negligence. What is important is that the proceedings do not aim at the content of the judgment as to such, but rather the conduct of the judge preceding the judgment. It is important that the legislation itself guarantees this. The Polish legislation does not provide sufficient guarantees, as it expressly mentions the interpretation of the law as a basis for launching a disciplinary proceeding. That is why The Netherlands agrees with the Commission that the Polish rules are based on a definition of disciplinary offence that does not provide sufficient guarantees for judicial independence”.

Finland

“We are dealing with an absolutely fundamental question today. We have already heard about the significance of the rule of law, and how crucial it is that all Member States safeguard this principle. This is something that within the Union we simply cannot compromise on. In a way, it is also positive that the rule of law principle is being debated. Studies have shown that EU citizens’ awareness of the principle, and how it affects their lives, is not as good as it could be. At the same time, the reason behind today’s hearing is quite worrisome. The independence of Polish judges is under serious threat. An important element of that is the chilling effect that the Polish disciplinary system has on judges, and the significance of that effect on the ruling to be given in today’s case. The chilling effect is recognised as an obstacle to the proper functioning in some Member States of not only the judiciary but media and civil society as well. The Polish government denies the existence of the entire phenomenon regarding the disciplinary system. The Finnish government wants to address this during this hearing because we believe that such effects on the Polish judiciary are both real and serious, and they must be considered in respect of both Article 19 TEU and Article 267 TFEU.

A chilling effect is something that introduces an entirely new element into judges’ work. When they are working on a case, they now also have to consider whether they might end up being accused of a disciplinary offense. This is not speculation. This is a fact established through several surveys that were conducted amongst Polish judges. What is it that causes the Polish system to have such an effect? And what distinguishes it from disciplinary systems in other Member States? First, the definition of a disciplinary offense in Polish law is both broad and ambiguous. The content of a decision can also be a reason for discipline. Second, it does not guarantee the accused judge a fair trial, because of the lack of independence and impartiality of the Disciplinary Chamber. Third, the procedure can lead to sanctions on a very concrete level. Judges may be relocated, lose their job or get a salary reduction. This affects the judges, but also their families. A Polish judge may have to show exceptional courage just to rule on a case in a way that they consider fair based on their expertise. Some judges do have that courage. But others may decide to rule in a way that does not jeopardize their entire livelihoods, which is completely understandable and entirely human. But a judge should not have to display particular courage or heroism to do their job right. All of this has to be seen in light of the fact that the number of disciplinary cases in Poland is relatively high. Just between June 2018 and December 2019 disciplinary cases were brought against 152 judges. The mere existence of the Polish disciplinary system is enough to create a chilling effect. It is in breach of EU law.”

Sweden

“The Swedish government supports the Commission. Guaranteeing the independence of the courts is a prerequisite for upholding effective legal protection under Article 19 TEU and Article 47 Charter. Neither of these articles requires a specific model regarding disciplinary procedures for judges. The national disciplinary system varies greatly, and there is no uniform regime. However, the requirement of independence means that these rules must provide the necessary guarantees to prevent any risk that such a disciplinary regime is a system of political control over the content of judgments. What is important is the quality of and guarantees within the disciplinary regime. This ensures that judges are protected against pressure and are able to keep their independence of judgment. In the Swedish government’s view, if a system is designed in such a way that a judge is in danger of facing direct or indirect pressure that impairs their independence of judgment in that decision, it cannot be deemed to be compatible with Article 19 TEU.

As to Poland, the Commission’s recent rule of law report about Poland shows that the disciplinary regime is being amended and is actively used. The Commission report expresses concern that this system lacks appropriate safeguards to guarantee independence. This report, which was compiled using the information of, inter alia, the European Network of Councils for the Judiciary, shows that the situation has deteriorated in recent times. Not exposing judges to disciplinary measures for exercising their right to send a request for a preliminary ruling is essential to judicial independence. The Swedish government agrees with the Commission’s assessment that the Polish disciplinary system falls short of this requirement. The Disciplinary Chamber’s independence and impartiality are not guaranteed. It is therefore remarkable that the Chamber at issue seems to continue to operate.”