On 6 February, the Sejm’s Justice and Human Rights Committee voted on its position on the Senate’s resolution regarding the Act on the Supreme Court. The Senate accepted the bill with 14 amendments on 31 January. The Law and Justice Party (PiS) senators also voted in favour of the whole of the bill, even though they had previously advocated the rejection of the amendments.

During the Committee meeting, the Senate’s amendments were voted on in a single block. They were supported by 13 people, while 15 voted against. None of the representatives of the PiS club broke out in the vote, which is the final confirmation that, at the next sitting of the Sejm, Ziobro’s people will reject the amendments in line with PiS and the bill will go to the President in the form in which the MPs passed it in January.

What was in the Senate’s amendments?

The Senate finally introduced 14 amendments into the bill, which, among other things:

• liquidate the Professional Liability Chamber;

• transfer disciplinary cases of judges and other legal professions to the Criminal Chamber of the Supreme Court;

• declare that the rulings of the Disciplinary Chamber of the Supreme Court are invalid;

• set a seven-year tenure for Supreme Court judges to be able to consider disciplinary cases of judges and for conducting tests of independence and impartiality;

• eliminate the provisions of the Muzzle Act prohibiting judges from taking steps to question whether a judge has official capacity, whether a judge has been appointed effectively and whether a constitutional body is legitimate;

• extend the test of independence and impartiality – a member of a bench and not the whole of the bench will be able to request this, while the standard of independence will not have to apply to the specific case that is being considered.

Aleksander Pociej presented the resolution at Monday’s session of the Justice Committee. The senator referred to numerous expert opinions (including that of the president of the Supreme Administrative Court himself) raising the argument of the unconstitutionality of the transfer of disciplinary cases and the test of impartiality to the Supreme Administrative Court. He reiterated that the description of the milestones included the requirement that disciplinary cases end up in one of the chambers of the Supreme Court.

What about the muzzle law provisions?

EU Minister Szymon Szynkowski vel Sęk took the floor during the committee’s debate. He said the Supreme Administrative Court was the appropriate court for dealing with disciplinary cases of judges and that such a solution ‘has been accepted by the European Commission’.

‘Even though the description of the milestone says otherwise, the EC said that the purposive interpretation is binding. The point is that these cases are to be decided on by an independent court, and the Supreme Administrative Court has never given rise to any doubts and discussions in Europe. What matters is the objective of reaching the milestone,’ he refuted the allegations.

He added that the government has three legal opinions of experts supporting his argument that the transfer of the cases to the Supreme Administrative Court is in line with the Polish Constitution. These are expert opinions prepared by Professor Dr Hab. Marek Szydło (chair of the prime minister’s legislative council, who gave a positive opinion on Mateusz Morawiecki’s instructions to hold elections by correspondence), Professor Krzysztof Koźmiński (associated with Ordo Iuris), as well as Dr Hab. Robert Suwaj and Dr Hab. Jarosław Dobkowski.

Szymon Szynkowski vel Sęk also stated that he disagrees with the Senate’s removal of provisions of December 2019 (namely the muzzling provisions): ‘These changes have no grounds in any milestone. Case C-204/21, which applies to the legality of the repealed provisions, has not yet been decided on to this day.’

Kamila Gasiuk-Pihowicz reminded the minister that it is these very regulations to which the CJEU’s ruling applies, for which Poland is being fined €1 million per day. ‘I find the claim that there is no justification for repealing these provisions to be strange, whereas we have already paid 2 billion zlotys in fines,’ said the MP.

‘These fines are being imposed on Poland illegally,’ committee chair Marek Ast commented on the retort. ‘The Constitutional Tribunal will certainly look into this matter soon,’ announced Ast, referring to the pending application regarding the ruling on the unconstitutionality of the EU regulations allowing the CJEU to impose fines. The matter ended up in the Constitutional Tribunal on Zbigniew Ziobro’s initiative, but was repeatedly deferred for fear of spoiling the protracted negotiations with the EC.

A brief history of the latest amendment

Another amendment to the Act on the Supreme Court is the result of the negotiations between the new EU Minister, Szymon Szynkowski vel Sęk, and the European Commission. The bill has the intention of implementing the CJEU rulings and meeting the milestones on the rule of law, which are a condition for unlocking billions for the National Recovery Plan.

PiS submitted the bill to the Sejm on 13 December, and work on it was supposed to start immediately. Solidarna Polska opposed it from the beginning, but an additional blow was made by President Andrzej Duda, who publicly threatened he would veto it. The bill was dropped from the agenda.

The amendment provides for an extension of the test of a judge’s independence and impartiality, which would now be conducted at the court’s request. The bill also provides for the transfer of disciplinary cases of judges from the Professional Liability Chamber of the Supreme Court to the Supreme Administrative Court, which gives rise to constitutional doubts among experts.

‘The jurisdiction of the Supreme Administrative Court is defined by Article 184 of the Constitution; it cannot be given tasks other than those provided for in that provision,’ warned Jacek Chlebny, president of the Supreme Administrative Court during the debate on the Act during the session of the Sejm’s justice committee. He also considers it unconstitutional to give the Supreme Administrative Court the competence to conduct a test of impartiality and independence.

The democratic opposition clubs submitted a number of amendments to the bill, which were rejected. The bill was passed by a majority in the final vote.  This is because not only did the PiS club split (Solidarna Polska voted against the bill), but the opposition’s united front also broke down. Polska 2050 voted against the bill. The Polish Coalition clubs, namely the KO [the Civic Coalition] and Left clubs almost entirely abstained. Kamila Gasiuk-Pihowicz and Henryka Krzywonos-Strycharska from KO and six people from the Left, including Krzysztof Śmiszek and Anna Maria Żukowska, voted against the bill. Paweł Kukiz voted against, while the two other Kukiz’15 MPs abstained.

The strategy of the opposition parties, which enabled PiS to pass a law containing a number of questionable solutions, was extensively criticized by people working in support of the rule of law. In turn, the fact that the Polska 2050 circle broke ranks and voted against the bill caused a storm in the media around Szymon Holownia’s party and started a series of mutual accusations within the opposition.

Translated by Roman Wojtasz

The text was published in OKO.press on 6th February 2023.