The Grand Chamber of the Court of Justice of the European Union (CJEU) found that Poland breached Union law with the Muzzle Act and the disciplinary system for judges.

The United Right created it and is using it to harass Polish judges criticizing the changes in the judiciary being forced through by the government since 2015.

CJEU: Muzzle Act in conflict with EU law

The Muzzle Act is an Act that provides for strict disciplinary penalties for applying EU law and for checking whether benches satisfy the Union’s requirements of an independent court

The judgment in case  C-204/21, which was filed by the European Commission on 1 April 2021 against the Polish government was passed after almost 3.5 years from the enactment of the Muzzle Act on 20 December 2019. The Act has been in force since 14 February 2020.

The Court confirmed that the review of a Member State’s compliance with values and principles, such as 

• the rule of law

• effective court protection

• and the independence of the judiciary 

lie fully within its competence – the Polish government claimed this is not the case.

The CJEU accepted all the allegations raised by the European Commission. It assessed the legal situation as at the date on which the application was filed

It held that:

• the (already liquidated) Disciplinary Chamber of the Supreme Court does not satisfy the requirement of independence and impartiality. It may be detrimental to the independence of judges for such a body to adjudicate on matters regarding the status of judges and on whether judges hold office. In particular, by authorizing a judge to be held criminally liable, as well as authorizing the judge’s detention. Also by issuing rulings on important aspects of labour law, social security or retirement with respect to judges

• in view of their extensive and imprecise nature and the specific context of their enactment, the contested provisions of the Muzzle Act may be used to prevent Polish courts from assessing judicial independence and the independence of a judge under EU law. As well as to prevent the referral of questions to the CJEU for preliminary rulings. This is not in compliance with Union guarantees of access to an independent and impartial court.

The CJEU emphasized that, in certain circumstances, national courts are required to examine whether they themselves or the judges from their benches, or other judges or courts, satisfy the requirements provided for by EU law.

EU law is also being breached by entrusting only one body, the Chamber of Extraordinary Control and Public Affairs of the Supreme Court, with the right to examine whether a court or judges satisfy the requirements provided for by EU law.

The CJEU ruled that any Polish court should have the right to make such an assessment of a court examining a matter governed by EU law

• the provisions obliging judges to disclose their membership of associations, foundations or political parties in writing and to make this information available electronically constitute a breach of the fundamental rights of the judges to the protection of personal data and respect for their private lives, which is protected under EU law. The CJEU ruled that the publication of data on former membership of a political party in an electronic version is not, in this case, appropriate for achieving the declared objective of increasing the impartiality of judges.

The European Commission, as the guardian of the EU Treaties, is bound by the rulings of the CJEU, including the latest ruling on the Muzzle Act.

We explain below how the amendment to the laws on the courts, which the government thought would unblock billions of euros for the National Recovery and Resilience Plan, looks in the light of this judgment.

Case of the Muzzle Act: fine of €556 million 

The CJEU’s announcement of the ruling stops the counter of the daily fines imposed on Poland for failing to comply with the order regarding the interim measures for the disciplinary system for judges. These amount to a total of €556 million.

In the case of the Muzzle Act, the CJEU issued an order regarding interim measures at 3 pm on 14 July 2021.

The Polish authorities were to ‘freeze’ the Disciplinary Chamber in the Supreme Court and other elements of the disciplinary system: the provisions of the Muzzle Act allowing disciplinary action to be initiated against judges who examine whether courts are independent and impartial, and the award of the exclusive right to check a judge’s lack of independence to the Chamber of Extraordinary Control and Public Affairs.

This did not happen. An hour after the announcement of the interim measures, Julia Przyłebska’s Constitutional Tribunal led by Stanisław Piotrowicz ruled that the CJEU’s provisions on interim measures regarding central judicial bodies are incompatible with the Polish Constitution.

The Polish government applied for the revocation of the order regarding the interim measures. The Vice President of the CJEU dismissed this application on 6 October 2021.

On 27 October 2021, the Vice President of the CJEU issued an order imposing a record penalty of €1 million per day on Poland for failing to comply with the order regarding the interim measures.

The Polish government refused to pay the fines. The European Union deducted them from European funds for Poland.

After the liquidation of the Disciplinary Chamber and the introduction of the new institution of the independence test in July 2022 by way of an amendment proposed by President Duda, the government applied for the withholding of the accrual of the fines.

The amendment abolished some provisions of the Muzzle Act. But not all of them. The prohibition to assess a judge’s or court’s status under threat of removal from office, as well as the obligation for judges to reveal their membership of associations remained in force.

On 10 March of this year, the Polish government applied to the CJEU to revoke or amend the order regarding the fine.

The penalty was reduced to half a million euros per day on 21 April, by order of the vice-president of the CJEU, because Poland is still not fully complying with the order regarding the interim measures of 14 July 2021:

• the effect of the Disciplinary Chamber’s decisions authorizing the prosecution or detention of a judge has not been suspended, or in any case not immediately. This applied to Igor Tuleya’s case, who was suspended by the Disciplinary Chamber in 2020; his immunity was also lifted; interim measures were not automatically applied in his case, ignoring the order of the CJEU and the judgments of the Polish courts; the Professional Liability Chamber of the Supreme Court overturned the ruling of the Disciplinary Chamber in November 2022;

• the application of the provisions of the Muzzle Act, which prohibit judges in Poland from examining whether a court is impartial and independent in the meaning of EU law, has still not been completely and effectively suspended;

• the provisions of the Muzzle Act allowing judges to be held liable on disciplinary charges for conducting such an examination have still not been completely and effectively suspended.

What will Przyłębska’s Constitutional Tribunal do now?

A hearing regarding the examination of the constitutionality of the temporary fines imposed by the vice-president of the CJEU on the application of the Prosecutor General (Zbigniew Ziobro) is planned in Przyłębska’s Constitutional Tribunal for 14 June.

If Przyłębska’s Constitutional Tribunal rules that the orders regarding these fines are incompatible with the Constitution, the government will probably invoke the Constitutional Tribunal’s judgment to contest them further. It does not appear that this argument will convince the Commission.

The membership and functioning of the Constitutional Tribunal is the subject of a case before the Court of Justice of the EU brought by the European Commission, among other things because of the judgments of the Constitutional Tribunal undermining the rulings of the CJEU. The CJEU will make its ruling no earlier than in 2024.

What would the entry into force of the latest amendment to the ‘laws on the courts’ change?

President Duda’s application to examine the constitutionality of the amendment to the Acts on the courts of 13 December 2022, enacted by the Sejm on 8 February, is pending before Przyłębska’s Constitutional Tribunal.

President Duda unexpectedly decided not to sign the amendment on 9 February and referred it to the Constitutional Tribunal for a preventive review of its constitutionality. That is why the Act has not entered into force.

Is Przyłębska’s Constitutional Tribunal capable of operating?

Under the current statutory provisions, the Constitutional Tribunal is supposed to consider a case with a full bench, which means at least 11 of the 15 judges. It has not been possible for this membership to assemble because of the conflict within the Tribunal. Six judges were demanding the resignation of the president of the Constitutional Tribunal, Julia Przyłębska, because they claim that her term of office as president expired in December 2022.

The government wanted to pass a law reducing the required membership to nine judges, but work on it was put on hold at the end of May.

Two ‘rebels’ – Bogdan Święczkowski and Zbigniew Jędrzejewski – decided to rule on 2 June. They managed to assemble an eleven-member bench to organize a hearing on the limits of the President’s right of clemency.

As of today, the hearing in the Constitutional Tribunal is planned for 27 June.

If the Constitutional Tribunal decides that the provisions of the amendment are constitutional, President Duda will sign the Act and it will enter into force.

However, it will not achieve the ‘milestones’ – at least from a legal point of view.

The government undertook that:

• All disciplinary cases against judges are to be settled by a court, which is separate from the current Disciplinary Chamber, which satisfies the requirements of EU law arising from the rulings of the Court of Justice, and therefore a court that is independent, impartial and established by law;

• Judges will not be subject to disciplinary liability for submitting a request for a preliminary ruling to the Court of Justice of the EU, for the content of their judgments, or for checking that another court is independent, impartial and established by law;

• The procedural rights of parties in disciplinary proceedings will be strengthened;

• Judges affected by rulings of the Disciplinary Chamber in the past will have the right to an immediate review of these rulings by a court that satisfies the requirements of the EU and is therefore independent, impartial and established by law.

The CJEU judgment in the case of the Muzzle Act clearly indicates that:

• a court hearing cases regarding the status and exercise of office of judges must satisfy the EU requirements of independence and impartiality; according to the CJEU’s jurisprudence, these conditions are not satisfied by a court which includes neo-judges (appointed with the participation of the National Council of the Judiciary elected in a politicized procedure amended by PiS in 2017); the latest amendment to the Acts on the Courts of 13 December, the constitutionality of which is to be examined by the Constitutional Tribunal, envisages that these cases will be heard by the Supreme Administrative Court, while 30% of Supreme Administrative Court judges are neo-judges.

• it is contrary to EU law to give only one body the ability to test the independence of a court and the independence of a judge under EU law. All courts should be able to make such an assessment of a court hearing a matter that is encompassed by the provisions of EU law. The amendment removes the ability to discipline a judge for requesting a preliminary ruling from the CJEU. But it still allows a disciplinary penalty to be imposed for performing a test of independence of a court and independence of a judge, including the removal of a judge from office.

Billions for the NRRP are moving away

Experts have repeatedly criticized the content of the milestones as being insufficient to implement the judgments of the Court of Justice of the European Union and the European Court of Human Rights. Four European associations of judges have filed an application with the CJEU against the EU Council for approving them. This is because they do not oblige the Polish authorities to remedy the method of electing judges to the National Council of the Judiciary that was politicized by PiS. And this poisons the process of appointing judges and means that a court staffed with neo-judges will fail to meet the EU requirements of independence.

When assessing the implementation of the milestones, the European Commission, as guardian of the EU treaties, is bound by the rulings of the CJEU, including the latest ruling.

It remains to be seen whether political considerations or arguments will prevail over legal ones when the European Commission makes this assessment.

What the government would have to do to save the Recovery Fund

Just to reiterate: The Recovery Fund amounts to €750 billion in grants, namely non-refundable support and loans. It assumes that Poland is to be the fourth largest beneficiary of the programme, after Italy, Spain and France. It is to receive €23.85 billion in grants and €11.51 billion in loans.

However, the Polish government has not even applied for the disbursement of the first tranche. This is because the changes which are to satisfy the European Commission have not entered into force.

In comparison, in the middle of February, the European Commission approved the disbursement of the third tranche for Spain. It approved the first tranche in December 2021, more than six months before the approval of the draft NRRP presented by Mateusz Morawiecki’s government and the negotiation of Polish ‘milestones’ regarding the judiciary.

The funds are expected to be disbursed by the end of 2026. Some EU governments, such as Italy, are proposing an extension of the deadline for the disbursement of NRRP funds by at least a year.

Even if

• the deadlock in the Constitutional Tribunal is overcome

• Przyłebska’s Constitutional Tribunal finds that the latest amendment to the Acts on the Courts is constitutional

• President Duda signs the amendment

• and it enters into force

this will not satisfy the ‘milestones’ from the NRRP from a legal point of view. The CJEU ruling regarding the Muzzle Act shows this even more glaringly than before. The Commission may make a (risky) political decision and ‘unblock’ the NRRP, but this would be a spectacular disregard of the CJEU ruling.

If the Polish government wants to successfully apply for the first tranche for the NRRP, it should aim to enact a new amendment. This one should be in full compliance with the CJEU judgments, including the ruling of 5 June.

Translated by Roman Wojtasz

The article was published in Polish in OKO.press