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 proceedingsrule of lawDisciplinary Chamberjudicial independencePolandEuropean CommissionjudgesCourt of Justice of the EUConstitutional TribunalZbigniew ZiobroNational Council of the JudiciaryEuropean UnionCourt of JusticeAndrzej DudaIgor Tuleyadisciplinary systemMinister of JusticeCommissioner for Human RightsMałgorzata Manowskapresidential electionsjudiciarypreliminary rulingsdemocracyJarosław Kaczyńskielections 2020Beata MorawiecFirst President of the Supreme CourtprosecutorsCJEUmuzzle lawHungaryEuropean Arrest WarrantAdam BodnarCOVID-19European Court of Human Rightsdisciplinary commissionerMateusz MorawieckiPresidentfreedom of expressionKamil ZaradkiewiczOSCENational Public Prosecutorcriminal proceedingsProsecutor GeneralconditionalityConstitutionCriminal ChamberLaw and JusticeprosecutionNCJcriminal lawNational ProsecutorelectionsMałgorzata Gersdorfacting first president of the Supreme CourtOrdo IurisMay 10 2020 electionsWaldemar Żurekmedia independenceAmsterdam District CourtKrzysztof ParchimowiczEAWmediaimmunityAnna DalkowskaCouncil of EuropePrime Minister2017freedom of assemblyJulia PrzyłębskaFreedom HouseExtraordinary Control and Public Affairs ChamberVenice CommissionSupreme Administrative CourtEU budgetPM Mateusz MorawieckiMinistry of JusticeC-791/19disciplinary liability for judgesNational Electoral CommissionWojciech HermelińskiAndrzej ZollMarek SafjanGeneral Assembly of the Supreme Court JudgesAleksander StepkowskiPresident of PolandJarosław GowinLGBTLGBT ideology free zonesSejmMichał LasotaZuzanna Rudzińska-BluszczSylwia Gregorczyk-AbramdefamationTHEMISMaciej NawackiTVPLex Super OmniaPaweł JuszczyszynBelgiumNetherlandsBogdan ŚwięczkowskiPiotr SchabPrzemysław Radzikdemocratic backslidingViktor OrbandecommunizationNext Generation EUvetopoliceJózef IwulskiLaw on the NCJLech GarlickirecommendationHuman Rights CommissionerCCBEThe Council of Bars and Law Societies of EuropeSupreme Court Presidentreportmedia freedomArticle 7European ParliamentZiobroconditionality mechanismWłodzimierz WróbelAndrzej StępkaMichał Laskowskihuman rightsEuropean Association of Judges11 January March in WarsawcoronavirusPiSresolution of 23 January 2020Stanisław PiotrowiczPiotr PszczółkowskiJarosław WyrembakLeon KieresPKWinfringment actionEU valuesENCJlex NGOcivil societyRussiaIsraelforeign agents lawOrganization of Security and Co-operation in EuropeFirst President of the Suprme CourtPresident of the Republic of PolandLGBT free zonesequalityChamber of Extraordinary Verificationhate crimeshate speechcriminal codeGrzęda v PolandXero Flor w Polsce Sp. z o.o. v. PolandBroda and Bojara v PolandŻurek v PolandSobczyńska and Others v PolandReczkowicz and Others v. PolandRafał Trzaskowskimedia lawIustitiaKrystian MarkiewiczPrzemysła RadzikSenateMarcin WarchołElżbieta KarskaMarcin RomanowskiJacek CzaputowiczPrzemysław Czarneklegislative practiceENAZbigniew BoniekcourtsOmbudsmanKraśnikNorwayNorwegian fundsNorwegian Ministry of Foreign AffairsMichał WawrykiewiczFree CourtsC-487/19Article 6 ECHRArticle 10 ECHRRegional Court in AmsterdamOpenbaar MinisterieUrsula von der LeyenEwa WrzosekAK judgmentSimpson judgmentEU law primacyForum Współpracy Sędziówpublic broadcasterAdam Tomczyńskimutual trustLMIrelandIrena MajcherAmsterdamthe Regional Court in WarsawUnited Nationsjudcial independenceLeszek MazurMaciej Miterapopulisminterim measuresOLAFautocratizationMultiannual Financial Frameworkabortion rulingequal treatmentabortionprotestsfundamental rightsthe NetherlandsDenmarkSwedenFinlandMariusz KrasońCT PresidentGermanyCelmerC354/20 PPUJustice Defence Committee – KOSC412/20 PPUAusl 301 AR 104/19Karlsruheact on misdemeanoursCivil Service ActParliamentary Assembly of the Council of EuropeEUStanisław BiernatTeresa Dębowska-RomanowskaWhite PaperKazimierz DziałochalustrationMirosław Granattransitional justiceAdam JamrózStefan JaworskiBiruta Lewaszkiewicz-PetrykowskaWojciech ŁączkowskiEwa ŁętowskaMarek MazurkiewiczAndrzej MączyńskiJanusz NiemcewiczMałgorzata Pyziak- SzafnickaStanisław Rymarpublic opinion pollFerdynand RymarzAndrzej RzeplińskiJerzy Stępień2018Piotr TulejaNations in TransitSławomira Wronkowska-JaśkiewiczCouncil of the EUMirosław WyrzykowskiBohdan ZdziennickiMarek Zubikmedia taxStanisław Zabłockiadvertising taxmediabezwyboruJacek KurskiKESMAIndex.huTelex.huJelenJózsef SzájerDidier ReyndersKlubrádióSLAPPLIBE 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 dissentersMarek PietruszyńskiWojciech SadurskiBogdan ŚwiączkowskiDisicplinary ChamberjudgeTribunal of StatetransferPechKochenovEvgeni TanchevFreedom in the WorldECJFrackowiakretirement ageAmnesty InternationalŁukasz PiebiakPiebiak gatetrans-Atlantic valuesLSOlawyersAct of 20 December 2019repressive actKoen LenaertsharrassmentAlina CzubieniakJustice FundGerard BirgfellerEwa Maciejewskapostal votepostal vote bill