The Court of Justice of the EU ruled on interim measures in a case from the European Commission’s complaint against the Polish government about the model of disciplinary liability for judges (case C-791/19).

The Commission filed the complaint in October 2019, and in January 2020 – additionally concerned about the “Muzzle Law” in the Polish parliament, which further tightened the disciplinary liability system – it applied for interim measures.

On 8 April 2020, in response to this filing by the European Commission, the Luxembourg Court ruled that:

“The Republic of Poland shall be required, immediately and pending the judgment in Case C 791/19, to

– suspend the application of the provisions of Article 3(5), Article 27 and Article 73(1) of the Supreme Court Act of 8 December 2017 (OJ L 2018, item 5), as amended, which constitute the basis for the jurisdiction of the Disciplinary Chamber of the Supreme Court in both the first and second instance, in disciplinary cases of judges;

– refrain from referring cases pending before the Disciplinary Chamber of the Supreme Court for consideration by a panel which does not meet the requirements for independence indicated in particular in the judgment of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court) (C 585/18, C 624/18 and C 625/18).”

Polish state authorities must comply with the ruling without undue delay.

The Polish government must notify the European Commission within one month of notification of the CJEU order on interim measures of all measures it has taken to comply fully with that order.

CJEU in the defense of judges

In March 2020, the Grand Chamber of the Court of Justice, in the explanatory memorandum to the decision on preliminary questions by Judges Igor Tuleya and Ewa Maciejewska – which it could not review for procedural reasons – expressed concern about the system of disciplinary responsibility for judges in Poland. The Grand Chamber stressed that disciplinary proceedings against judges in EU countries for submitting questions to the Court for a preliminary ruling are unacceptable.

The CJEU clarified in its decision of 8 April that the Disciplinary Chamber of the Supreme Court is “a second instance disciplinary court and in some cases a court of first instance for judges of common courts, whereas for judges of the Supreme Court it is a disciplinary court of first and second instance”. Therefore, its operation is an element of the model of disciplinary responsibility for judges in Poland, developed under the rule of the PiS-led governing coalition.

Final judgment to come later in 2020

In the context of the COVID-19 epidemic, the EU Court of Justice is still working, albeit remotely. The hearings, which were due to take place by 30 April, were postponed to a later date. The Court decided to give priority to particularly urgent cases (such as urgent and expedited cases and proceedings for interim measures). Other proceedings are still pending.

The purpose of the proceedings on interim measures is to ensure that the future final judgment is fully effective so as to avoid a gap in the legal protection provided by the Court.

Advocate General Evgeni Tanchev will render an opinion on the European Commission’s complaint about the model of disciplinary responsibility for judges, followed by a final and binding judgment for all Polish state authorities. This will happen in the second half of 2020.

The European Commission has outlined its complaint very broadly, covering essentially all the main elements of the system of disciplinary responsibility, including in particular the Disciplinary Chamber and the activities of the disciplinary officer. The Commission considers that the whole structure impacts judicial independence.

The CJEU is just beginning to assess judicial “reforms”

In June and November 2019, the CJEU ruled on two Commission complaints against the Polish government concerning changes in the retirement age of Supreme Court and common courts judges. In both cases, it ruled that the changes proposed by the PiS-led ruling majority constituted a breach of EU law.

Now, a new complaint – long awaited – by the European Commission against the Polish government to the CJEU against the “Muzzle Law” is likely.

The CJEU will consider a number of questions submitted by Polish courts in connection with elements of the judicial “reforms” instituted by the governing coalition.

CJEU judgments are pending in:

• CaseC-487/19 –the Supreme Court asks about the status of the Disciplinary Chamber at the Supreme Court and the status of the neo-National Council of the Judiciary on the basis of the case of Judge Waldemar Zurek
• Case C-508/19– The Supreme Court also asks about the status of the Disciplinary Chamber – whether a court, for the purposes of European law, is a court in which a judge nominated by procedures infringing EU law sits,
• Case C-824/18– The Supreme Administrative Court asks about the Supreme Court nomination process with the participation of the newly constituted National Council of the Judiciary (neo-Council),
• Cases C-754, 753, 752, 751, 750, 749, 748/19The District Court in Warsaw asks about the delegation of a judge to the Ministry of Justice (questions were asked by Judge Anna Bator-Ciesielska),
• Case C-55/20– The Disciplinary Court of the Bar Association in Warsaw asks about the status of the Disciplinary Chamber of the Supreme Court and its understanding of the notion of a court under EU law regarding the Disciplinary Court of the Bar.

Additionally, in Case C-132/20, Kamil Zaradkiewicz, a judge of the Civil Chamber of the Supreme Court on the recommendation of the neo-National Council of the Judiciary (NCJ), asked the CJEU about the status of judges appointed by the State Council in the People’s Republic of Poland. This case, although seemingly thematically distant from the assessment of elements of the judicial “reform” pursued by PiS, may prove crucial. It is possible that the CJEU, considering that it cannot take up the question, will assess the status of the questioning court, which includes a judge appointed on a recommendation of the neo-NCJ.

CJEU a key actor in the fight over courts

On 19 November 2019, a landmark ruling was issued in response to questions from the Supreme Court, which was the basis for the ruling by Supreme Court judges in December that the neo NCJ is not independent and the Disciplinary Chamber in the Supreme Court is not a court within the meaning of EU law. The courageous judge Pawel Juszczyszyn also decided to implement the CJEU’s ruling, for which he was met with reprisals by the authorities, including the decision by the Disciplinary Chamber of the Supreme Court to suspend him from the bench.

After the CJEU judgment in November and the December ruling of the Supreme Court, the governing majority revealed its draft “Muzzling Law”. In January 2020, the three chambers of the Supreme Court issued a resolution – enjoying the force of a legal rule – which indicates that, in light of the CJEU’s November ruling and the Supreme Court’s December resolution, the decisions of the Disciplinary Chamber of the Supreme Court are invalid, and judges in Poland should apply an “independence test” to common court judges who have been nominated by the president at the request of the neo-NCJ.

Translated by Matthew La Fontaine