“In a nutshell, there has been very little progress since the last hearing in December. There are also a number of new, worrying developments, especially in the field of disciplinary procedures against judges who make public statements about the rule of law in Poland or who have asked preliminary questions to the European Court of Justice,” Timmermans said.

“Every Polish judge is also a European judge, so no one should interfere with the right of a judge to pose questions to the European Court of Justice,” he emphasised.

This is in reaction to a 13 February letter from the Polish Judges Association IUSTITIA. Krystian Markiewicz, the president of Iustitia, addressed the Vice-President of the Commission with a request for intervention. The request concerns the repressive system of disciplinary proceedings and the activities of the politicised National Council of the Judiciary (NJC).

The judges are counting on the Commission bringing another complaint against the Polish government to the CJEU.

To date, only the potential for a confrontation with the Court of Justice in Luxemburg has at least somewhat succeeded in slowing down efforts by the ruling Law and Justice party (PiS) from dismantling the rule of law. At the end of 2018, following a decision by the CJEU to suspend the provisions of the Supreme Court Act, the government halted its clearout of the Supreme Court.

“The likelihood of another complaint from the Commission in the coming months is slight,” is the opinion expressed in a conversation with OKO.press by dr Piotr Bogdanowicz, an expert in European law from the University of Warsaw.

“A repressive system”

The letter from judge Markiewicz was published in the “Brussels Playbook,” a Politico newsletter popular in Brussels with EU bureaucrats.

The President of Iustitia invoked the CJEU verdict of 25 July 2018 in the much-discussed “Irish” case. In its commentary to the verdict, the Tribunal wrote that a disciplinary system cannot be abused “for political review of the content of court rulings,” and also that the right to a defence and to appeal against disciplinary rulings “are fundamental guarantees serving to maintain the independence of the judiciary.”

As Markiewicz emphasises, the following requirements are not met in Poland at the present time:

• The Minister of Justice and Prosecutor General – a politician from the ruling party – can influence the selection of disciplinary officers who function as prosecutors in disciplinary proceedings, as well as on the judges empanelled to rule in such cases in the first instance.
• The Disciplinary Chamber of the Supreme Court – the disciplinary court of the second instance – is by its nature in breach of the Polish constitution. The nominations of justices to that Chamber were also themselves unconstitutional, as the competition for the positions was announced without the countersignature of the Prime Minister. The entire process was overseen by the unconstitutionally selected National Council of the Judiciary.

In Markiewicz’s opinion, the NCJ, whose members were selected by MPs from PiS and Kukiz’15, “has become a tool used by politicians to introduce changes in the judicial system that will submit the courts to politicians on a permanent basis.”

The President of Iustitia noted that any disciplinary proceedings that were conducted under such a system would violate the right to an impartial and independent court, as well as the right to due process.

• Read the full text of the letter by Krystian Markiewicz to Frans Timmermans

“A chilling effect”

Markiewicz also mentioned the proceedings initiated against judges by disciplinary officer Piotr Schab and his two deputies – Przemysław Radzik and Michał Lasota.

“The proceedings are usually initiated against judges who are active in the field of defending the rule of law, among others by educational actions, meetings with citizens, international activity. Such proceedings are also initiated against judges who asked preliminary questions concerning the changes within the judicial system,” Markiewicz claims.

“Members of the NJC that became a quasi-disciplinary body as well, publicly demand initiation of disciplinary proceedings against judges who asked the preliminary questions,” he adds.

Proceedings are currently underway against members of Iustitia – judge Monika Frąckowiak and judge Olimpia Barańska-Małuszek (for such reasons as participation in last year’s Woodstock Festival).

As we have written earlier, two other members of Iustitia are also being persecuted – Igor Tuleya and Bartłomiej Przymusiński – for critical remarks in the media about the new NCJ.

Judges Tuleya, Ewa Maciejewska and Kamil Jarocki have been summoned by the disciplinary officer to submit explanations of requests for preliminary rulings from the Court of Justice of the EU.

Markiewicz has no doubt that the proceedings are designed to generate a “chilling effect” among judges. He also pointed out the fact that charges are pending only against those judges who have dared to oppose politicians.

Another complaint?

As the President of Iustitia observes, previous requests to the CJEU for preliminary rulings have not generated spectacular effects. The only thing that has got through to the PiS government was the complaint of 14 September 2018 by the European Commission. Following this complaint, the government withdrew from a portion of the unconstitutional changes it was proposing to make in the Supreme Court.

“I appeal for referring Poland to the CJEU in connection with the regulations concerning the disciplinary proceedings against judges and the actions of the politically dependent NCJ. I am convinced that Europe will once again express solidarity with Polish judges who fight for both Polish and European values for all of us,” wrote Markiewicz.

Defenders of the rule of law in Poland, including members of Iustitia, hope that the European Commission will again refer Poland to the CJEU. They hope the Commission will act on the basis of Article 258 of the Treaty on the Functioning of the EU.

So far, Article 7 has proved ineffective. Poland has been heard on several occasions by the Council, and each time a similar set of arguments was presented. There is no indication that this procedure will soon end. The Polish government must be aware of the impasse in the Council, because it is responding to the EU’s questions with increasingly arrogant rhetoric.

The commission refrains

It’s not clear if the commission is considering another referral to the CJEU. A final ruling has yet to be issued concerning a complaint from last year. We will learn the results somewhere between the end of April and beginning of May 2019.

The CJEU is also expected to respond to requests for preliminary rulings from Polish courts, including from the Supreme Court and Supreme Administrative Court. These concern issues such as the status of the new National Council of the Judiciary and the Disciplinary Chamber of the Supreme Court. The next session of the court will be held on 19 March.

“The likelihood of another complaint in the coming months is slight,” dr Piotr Bogdanowicz from the University of Warsaw said to OKO.press. “The Commission will rather want to wait for the conclusion of cases presently underway before the Tribunal. In the meantime, we also have the upcoming elections to the European Parliament,” he adds.

“We have to keep in mind that the complaint procedure under Article 258 TFEU is a two-stage process: informal and formal. Initially, the Commission contacts the concerned Member State with a request for clarifications. Only after this does it initiate proceedings, by officially summoning the Member State to cease the breach. As we’ve learned, this takes a bit of time.”

• See Article 258 Treaty on the Functioning of the European Union

“It should be pointed out that in the case of disciplinary proceedings, the complaint would not concern provisions of law, but rather practice, which is a much rarer event. The Commission would have to demonstrate that the precise grounds for initiating disciplinary proceedings were the applications from judges to the CJEU. This practice, as the Court has stressed, would have to be general and lasting,” Bogdanowicz remarks.

The European Commission places great hope in new rules allowing it to freeze or withdraw EU funds for breaches of the rule of law. A draft Regulation in this matter has already been accepted by the European Parliament, and is presently awaiting a decision by the Council.

Translated by Matthew La Fontaine