The European Commission has initiated the second stage of proceedings concerning the new disciplinary system for judges in Poland. On the same day, the Commission announced a new packet of measures for the rule of law. The Commission wants to prevent and respond more effectively to infringements of Treaty values in Member States and plans to support NGOs in promoting a rule of law culture. The Polish government is taking a dim view of most of the proposed solutions.

The forced transfer of acclaimed prosecutor Mariusz Krasoń from the Regional Prosecutor’s Office in Cracow to a lower-ranked office in Wroclaw has generated controversy among prosecutors and other legal professionals in Poland. The decision was issued after the prosecutor Krasoń participated in the drafting of a document highlighting defects in the current system earlier this year. A number of organizations and individuals, including the Polish Commissioner for Human Rights, have expressed their support for prosecutor Krasoń and criticized the decision of the National Prosecutor, Bogdan Święczkowski.

The assemblies of judges of all appellate courts in Poland have no intention of issuing opinions on candidates for judicial posts. They are refusing to cooperate with the new KRS, because the EU Court of Justice will soon rule whether it was established in accordance with EU law. “We have heard the negative opinion of the Advocate General. Common sense dictates that we avoid deepening the legal chaos,” comments Ewa Łętowska

The American Bar Association (ABA), one of the world’s largest voluntary professional organizations with over 400,000 members, is monitoring the independence of the judiciary in Poland. On July 8-9, 2019, the ABA President Bob Carlson visited Warsaw to meet with lawyers, judges and prosecutors as well as civil society to engage in discussion on the rule of law in Poland and threats to judicial independence.

The Minister of Justice feels that the opinion of the Advocate General of the EU Court of Justice Evgeni Tanchev is incompatible with EU law and constitutes a “defence of pathology in the Polish judiciary.” If the CJEU concurs with the Advocate General’s opinion, following the judgment Poland will have to select a new National Council of the Judiciary. Changes will also be necessary in other EU Member States.

“The Law on the Supreme Court was contrary to EU law”, ruled the Court of Justice on 24 June. According to the CJEU, the rules shorting judges’ term of office infringed the principle of their irremovability and judicial independence. The Court is in doubt about the real objectives of the PiS-led judiciary reform. More judgments will be issued shortly.

Yet another judge has been transferred from his post by force. Łukasz Biliński, justice of the District Court in Warsaw, known for acquitting protesters who were involved in blocking nationalist demonstrations, has been removed from ruling on criminal cases and transferred to the family division of the court against his will.

On Tuesday, 18 June 2019, the European Court of Justice considered two preliminary requests submitted by courts in Łódź and Warsaw. Both courts are concerned whether the new system of disciplinary proceedings against judges meets EU standards, particularly those enshrined in the principle of effective judicial protection. However, the hearing was mainly focused not on particular provisions of law questioned by the Polish courts, but on the admissibility of the questions these courts referred to the ECJ.

In a long-awaited opinion addressing an element of the so-called reform of the judiciary in Poland, the Court of Justice Advocate General Tanchev states that “by lowering the age of retirement of judges of the common law courts, and by vesting the Minister of Justice with the discretion to extend the active period of such judges, Poland has breached its obligations under EU law”.

The CJEU will soon announce its ruling in a controversial case brought by the Commission against Poland. Barbara Grabowska-Moroz provides background and analysis of the impact of the proceedings and the Court of Justice’s potential ruling on efforts to stop the backslide of the rule of law in Poland and around Europe.