CJEU: the Disciplinary Chamber of the Polish Supreme Court may not conduct disciplinary proceedings against judges


Co-founder and editor of Rule of Law in Poland and coordinator of The Wiktor Osiatyński Archive, a rule of law…


The CJEU has ruled that the Disciplinary Chamber of the Polish Supreme Court may not conduct disciplinary proceedings against judges or refer them to courts which do not meet the criterion of independence under Union law. The ruling is in force until the CJEU renders final judgment on the European Commission's complaint against the Polish government. The judgment will be handed down in the second half of 2020.

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


Co-founder and editor of Rule of Law in Poland and coordinator of The Wiktor Osiatyński Archive, a rule of law…



April 8, 2020


Supreme CourtDisciplinary ChamberConstitutional Tribunaldisciplinary proceedingsPolandrule of lawjudicial independenceZbigniew ZiobroCourt of Justice of the EUEuropean CommissionjudgesNational Council of the JudiciaryEuropean UnionCourt of JusticeAndrzej DudaIgor TuleyaMałgorzata Manowskadisciplinary systemCJEUMinister of JusticeCommissioner for Human RightsEuropean Court of Human RightsMateusz MorawieckiJarosław Kaczyńskipresidential electionsjudiciaryAdam Bodnarpreliminary rulingsdemocracymuzzle lawHungaryelections 2020Beata MorawiecFirst President of the Supreme CourtprosecutorsK 3/21Kamil ZaradkiewiczWaldemar Żurekdisciplinary commissionerEuropean Arrest WarrantProsecutor GeneralConstitutionCOVID-19Julia PrzyłębskaPresidentfreedom of expressionCourt of Justice of the European Unioncriminal lawMarek SafjanOSCEPaweł JuszczyszynNational Public ProsecutorPiotr SchabPrzemysław Radzikcriminal proceedingsPrime MinisterStanisław BiernatExtraordinary Control and Public Affairs Chambermedia freedomSupreme Administrative Courtconditionality mechanismconditionalityEU budgetCriminal ChamberLaw and JusticeprosecutionNCJNational ProsecutorelectionsWojciech HermelińskiStanisław PiotrowiczAndrzej ZollMałgorzata Gersdorfacting first president of the Supreme CourtAleksander StepkowskiOrdo IurisMay 10 2020 electionsmedia independenceAmsterdam District CourtKrzysztof ParchimowiczMaciej NawackiEAWmediaimmunityAnna DalkowskaCouncil of Europe2017freedom of assemblyFreedom HouseLech GarlickiEwa ŁętowskaArticle 7Venice CommissionWłodzimierz WróbelPM Mateusz MorawieckiAndrzej StępkaP 7/20Ministry of JusticeC-791/19disciplinary liability for judgesNational Electoral CommissionPiotr PszczółkowskiJarosław WyrembakGeneral Assembly of the Supreme Court JudgesPresident of PolandPresident of the Republic of PolandJarosław GowinLGBTLGBT ideology free zonesSejmXero Flor w Polsce Sp. z o.o. v. PolandBroda and Bojara v PolandReczkowicz and Others v. PolandMichał LasotaZuzanna Rudzińska-BluszczSylwia Gregorczyk-AbramdefamationcourtsTHEMISEU law primacyTVPLex Super OmniaAdam TomczyńskiBelgiumNetherlandsBogdan Święczkowskijudcial independencedemocratic backslidingViktor OrbanOLAFdecommunizationNext Generation EUvetopoliceJózef IwulskiLaw on the NCJJustice Defence Committee – KOSrecommendationTeresa Dębowska-RomanowskaKazimierz DziałochaMirosław GranatAdam JamrózStefan JaworskiBiruta Lewaszkiewicz-PetrykowskaWojciech ŁączkowskiHuman Rights CommissionerMarek MazurkiewiczCCBEAndrzej MączyńskiThe Council of Bars and Law Societies of EuropeJanusz NiemcewiczMałgorzata Pyziak- SzafnickaStanisław Rymarpublic opinion pollFerdynand RymarzAndrzej RzeplińskiSupreme Court PresidentJerzy StępieńPiotr TulejaSławomira Wronkowska-JaśkiewiczMirosław WyrzykowskireportBohdan ZdziennickiMarek ZubikDidier ReyndersEuropean ParliamentZiobroMichał LaskowskiMarek PietruszyńskiPiotr Gąciarekhuman rightscorruptionEuropean Association of Judges11 January March in WarsawPaweł FilipekMaciej TaborowskiJustice FundAdam SynakiewiczBelarusstate of emergencyneo-judgescoronavirusPiSXero Flor v. PolandEU treatiesAgnieszka Niklas-BibikSłupsk Regional CourtAstradsson v IcelandMaciej Rutkiewiczresolution of 23 January 2020K 6/21Mirosław WróblewskiLeon KieresPKWinfringment actionEU valuesENCJlex NGOcivil societyRussiaIsraelforeign agents lawOrganization of Security and Co-operation in EuropeFirst President of the Suprme CourtLGBT free zonesequalityChamber of Extraordinary Verificationhate crimeshate speechcriminal codeGrzęda v PolandŻurek v PolandSobczyńska and Others v PolandRafał Trzaskowskimedia lawIustitiaKrystian MarkiewiczPrzemysła RadzikSenateMarcin WarchołElżbieta KarskaMarcin RomanowskiJacek CzaputowiczPrzemysław Czarneklegislative practiceENAZbigniew BoniekOmbudsmanKraśnikNorwayNorwegian fundsNorwegian Ministry of Foreign AffairsMichał WawrykiewiczFree CourtsC-487/19Article 6 ECHRArticle 10 ECHRRegional Court in AmsterdamOpenbaar MinisterieUrsula von der LeyenEwa WrzosekAK judgmentSimpson judgmentForum Współpracy Sędziówpublic broadcastermutual trustLMIrelandIrena MajcherAmsterdamthe Regional Court in WarsawUnited NationsLeszek MazurMaciej Miterapopulisminterim measuresautocratizationMultiannual Financial Frameworkabortion rulingequal treatmentabortionprotestsfundamental rightsthe NetherlandsDenmarkSwedenFinlandMariusz KrasońCT PresidentGermanyCelmerC354/20 PPUC412/20 PPUAusl 301 AR 104/19Karlsruheact on misdemeanoursCivil Service ActParliamentary Assembly of the Council of EuropeEUWhite Paperlustrationtransitional justice2018Nations in TransitCouncil of the EUmedia taxStanisław Zabłockiadvertising taxmediabezwyboruJacek KurskiKESMAIndex.huTelex.huJelenJózsef SzájerKlubrádióSLAPPLIBE CommitteeStrategic Lawsuits Against Public ParticipationFrans TimmermansGazeta WyborczaOKO.pressUS Department of StatePollitykaBrussels IRome IISwieczkowskiArticle 2Forum shoppingadvocate generalDariusz ZawistowskitransparencyEuropean Economic and Social Committeepress releaseSebastian KaletaRights and Values ProgrammeC-156/21C-157/21C-619/18Marek Piertuszyńskidefamatory statementsWorld Justice Project awardNational Prosecutor’s Officeintimidation of dissentersWojciech SadurskiBogdan ŚwiączkowskiDisicplinary ChamberjudgeTribunal of StatetransferPechOlsztyn courtKochenovPrzemysła CzarnekEvgeni TanchevEducation MinisterFreedom in the WorldKrystyna PawłowiczECJIpsosFrackowiakOlimpia Barańska-Małuszeretirement ageMariusz MuszyńskiAmnesty InternationalHudocŁukasz PiebiakRegional Court in KrakówPiebiak gateKonrad SzymańskiPiotr Bogdanowicztrans-Atlantic valuesPiotr BurasLSOauthoritarian equilibriumlawyersArticle 258Act of 20 December 2019clientelismoligarchic systemRecovery FundEuropean Public Prosecutor's Officerepressive actPolish National FoundationLux VeritatisKoen LenaertsMałgorzata BednarekPiotr WawrzykharrassmentMarian BanaśAlina CzubieniakSupreme Audit OfficeTVNjournalistslexTVNGerard BirgfellerEwa MaciejewskaPolish mediapostal voteKrakówRzeszówDagmara Pawełczyk-Woickaborderpostal vote billprimacy