Batory Foundation report: “Under siege. Why Polish courts matter for Europe and the case for infringement proceedings”


In the report published on 20 March 2019 by the Stefan Batory Foundation in cooperation with the European Stability Initiative, the two organisations discuss the state of rule of law in Poland. The authors argue that the EU should use its most effective tool to defend the rule of law and lodge another complaint to the Court of Justice of the EU

The authors – Piotr Buras, John Dalhuisen, Gerald Knaus and Magdalena Milenkovska – argue that the EU should use its most effective tool to defend the rule of law and lodge another complaint to the Court of Justice of the EU.


According to the authors, the new complaint should concern the disciplinary regime used against judges – the suspicious role of the Minister of Justice and the Disciplinary Chamber of the Supereme Court, which was created by the government of Law and Justice (PiS).


Read the full report here and the executive summary below.


Executive summary

2018 marked a turning point for the rule of law in Europe. In a landmark verdict in February concerning a salary dispute of judges in Portugal the Court of Justice of the European Union (CJEU) in Luxembourg established a fundamental principle: that, as the ultimate guardian of the rule of law across the EU, it has the obligation to ensure that all citizens of the union enjoy effective judicial protection in their national courts. Its verdict stressed that:


“every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection.”


For this reason, courts in member states need to be“protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.”


This is no longer guaranteed in Poland today. Polish courts are under siege. A Polish judge given a sensitive case, either a business deal that involves prominent members of the governing party or a criminal case the Minister of Justice (who is also Prosecutor General) has strong views onis not “protected against external interventions or pressure liable to impair her independent judgment.”Polish ministers of justice, in this or any future government, can threaten, pressure and punish her. New disciplinary procedures make it all too easy.


In countries respectful of the rule of law the disciplinary system for judges is meant to uphold standards and prevent abuse. It does not do so in Poland. No other European democracy has a system like the Polish one. Nowhere else is there such a concentration of powers in the hands of one man. Minister of Justice Zbigniew Ziobro is able to appoint mostindividualsinvolved in investigating, prosecuting and judging disciplinary charges against ordinary judges and can intervene in every case.


Recent years have shown that while many of the tools at the disposal of the European Commission are weakthe European Union is not defenceless when it comes to defending the rule of law. The experience of the European Commission successfully challenging the Polish law on the Supreme Court in 2018 before the Court of Justice of the European Union has shown this.


Today the European Commission has to take one more crucial step. It should launch another infringement procedure beforethe Court of Justice, with the aim to restore the independence of courts. These proceedings should focus on the new disciplinary regime for judges.


EU member states should voice their support for this overdue step. All political groups that care about the integrity of the rule of law in the European Union should support it. Now that Commission vice president Frans Timmermans has entered the European parliamentary campaign as a leading candidate it is even more important that the battle to defendthe rule of law is strongly backedby Commission president Jean-Claude Juncker. By pushing for another infringement procedure, the outgoing president of the Commission would make clear that this is a matter of European significance. It goes beyond party politics.


By successfully bringing the law on the Supreme Court in 2018 to the Court of Justice of the European Union the European Commission showed that the EU is not helpless when its foundations are undermined. It proved that there is a powerful instrument to protect the rule of law. It restored hope to all European citizens who care about the fundamental values the EU rests upon. Let the successful defense of the rule of law be the lasting historic legacy of the Juncker Commission.



March 25, 2019


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