There is no need for any urgent amendment to implement this ruling; it will be sufficient for the Constitutional Tribunal to rule that the Act on the Supreme Court, which has been pending since January, is compliant with the Constitution – claims Minister for European Affairs Szymon Szynkowski vel Sęk.

Minister of Justice Zbigniew Ziobro believes the ruling was not issued by judges, but by politicians – and at ‘lavishly boozy banquets and hunts’.

This is how the ruling party refers to the highly significant ruling of the Court of Justice of the EU, which ruled on Monday, 5 June that Poland has failed to fulfil its obligations as a Member State as the judicial reforms of December 2019 are incompatible with EU law.

The latest CJEU judgment: What reforms is this about?

This is about the amendments to the Act on the Supreme Court and the Act on the Structure of Ordinary Courts, which tightened the provisions on disciplinary proceedings against judges and established a new chamber in the Supreme Court with the jurisdiction to rule on these cases.

The new regulations on disciplinary proceedings introduced strict penalties for judges for applying EU law and for checking whether benches satisfy the Union’s requirements of an independent court. The Disciplinary Chamber, to which judges were appointed by the new, politicized NCJ, replaced the previously functioning Criminal Chamber, which was staffed with legally appointed judges, and therefore cannot be considered a properly appointed court.

The Disciplinary Chamber has already been liquidated, but the provisions of the so-called Muzzle Act, to which Monday’s ruling of the CJEU applies, are still in force today. It was with their help that Judges Tuleya and Juszczyszyn, among others, who have already returned to adjudication, were persecuted.

Szynkowski vel Sęk: There is no need to urgently amend any laws

As for the CJEU ruling, Minister for European Affairs Szymon Szynkowski vel Sęk said that ‘the content of the ruling is currently being analysed’. However, as he emphasized, ‘the preliminary analysis suggests (…) that (…) some of the allegations are already outdated’, while some ‘could be resolved if the Act amending the Act on the Supreme Court, which was adopted by the Sejm in January this year and which is currently being analysed by the Constitutional Tribunal, were to enter into force’.

This is because the Act transfers the adjudication on disciplinary cases from the Professional Liability Chamber to the Supreme Administrative Court and increases the ability to apply the so-called ‘independence test of a judge’, granting every bench this right ex officio.

According to Szynkowski vel Sęk, such a provision responds to the allegation upheld by the CJEU today.

Furthermore, according to the minister, ‘there are no arguments there [in the CJEU ruling] which would make us have to consider some urgent amendment’. That is why Szynkowski vel Sęk hopes that ‘the Constitutional Tribunal will assess the constitutionality of this Act as quickly as possible (…) and that this Act enters into force’.

Szynkowski vel Sęk’s thoughts are wishful thinking

Such thinking is rather wishful thinking.

Firstly, one matter is out of date: the Disciplinary Chamber was liquidated in 2022 and the Professional Liability Chamber was established in its place. The CJEU’s ruling applies to the legal situation as at the date on which the European Commission filed the application.

However, the problem is that, if the CJEU considers the Disciplinary Chamber to be defective, it would also consider the Professional Liability Chamber as such, because it has the same defect as the Disciplinary Chamber: it is staffed with neo-judges, namely judges appointed by the politicized NCJ.

However, Szynkowski vel Sęk argues that both this problem, to which the CJEU ruling does not apply directly, and the problem of the Muzzle Act, which is still in force, would be resolved by the entry into force of the amendment to the Act on the Supreme Court of January 2023, which is being held up by the Constitutional Tribunal.

But – as experts already warned at the beginning of the year – the Act as it stands does not eliminate the provisions of the Muzzle Act, while the consideration of disciplinary cases by the Supreme Administrative Court is unconstitutional. The amendment to the Act on the Supreme Court, which is stuck, still leaves the prohibition to challenge the status of the neo-NCJ and the capacious provision on the alleged refusal to administer justice.

It is with these that judges who challenge the status of neo-judges and do not want to adjudicate with them are being punished. This amendment only eliminates the penalties of such adjudicatory actions by judges.

Furthermore, it can be seen that the Minister for European Affairs has not even read the CJEU’s communication about today’s ruling. Because had he read it, he would have known that the Act on the Supreme Court and the Act on the Structure of Ordinary Courts need to be urgently amended. This is because the CJEU has contested provisions that are not eliminated by the amendment to the Act on the Supreme Court, which is being blocked in the Constitutional Tribunal. These include provisions forcing judges to submit declarations disclosing their membership of non-governmental and party organizations.

In addition, the Constitutional Tribunal – which is deep in dispute – is practically not processing, something that Minister Szynkowski vel Sęk does not seem to notice once again.

The CJEU judgment and the NRRP? ‘Two separate topics’.

Furthermore, Szynkowski vel Sęk declares that he is not connecting this ruling to the matter of the dialogue being held with the European Commission on the funds for the NRRP.

‘I do not see this ruling in the context of the dialogue that is currently in progress with the European Commission on disbursements for the National Recovery and Resilience Plan, because these are two separate elements.’

Such a statement is surprising because firstly – there is no dialogue with the European Commission at the moment.

The European Commission is simply waiting for a signal from Poland that the Constitutional Tribunal has reviewed the constitutionality of the Act on the Supreme Court and that it can be implemented.

It is only when this happens that, in accordance with the procedure, which is the same for all Member States, after Poland applies for the first instalment of the disbursements, the EC will proceed to assess whether the milestones have been met. The Commission’s legal services will analyse not only whether or not the provisions of the Act on the Supreme Court actually resolve the problem of the lack of judicial independence identified in the NRRP, but also whether there have been any further changes to the law or whether any new problems have emerged in the meantime which would place a question mark over the independence of the courts in Poland.

Every CJEU ruling must be fully implemented so that the EC has no grounds for raising any further allegations.

It is only on this basis that the European Commission will determine whether Poland is eligible for the disbursement of the first tranche of funds. The mere entry into force of the Act on the Supreme Court absolutely does not mean the disbursement of funds for the NRRP.

In the case of Poland, the NRRP funds represent a total of just over €35 billion in grants and very low-interest investment loans. Some EU countries already received their first disbursements in 2022. Poland has not even applied for the first disbursement yet.

Ziobro: CJEU rulings are unreliable

Minister of Justice Zbigniew Ziobro of Suwerenna Polska [English: Sovereign Poland] and Sebastian Kaleta, Secretary of State at the Ministry of Justice from the same party addressed the matter of the CJEU ruling on the Muzzle Act and the Disciplinary Chamber at a press conference.

Ziobro claimed that ‘rulings of the Court of Justice are agreed at lavishly boozy meetings and banquets with politicians of the European People’s Party (namely the party to which Platforma Obywatelska [English: Civic Platform] belongs – editor’s note), and therefore this court’s rulings cannot be treated as reliable’.

This is not the first time that Minister Ziobro has cited an alleged scandal uncovered by the French ‘Liberation’, which, however, found no evidence of the trading of influence by judges of the CJEU.

Ziobro also added that, in his opinion, the content of the judgment ‘fully confirms the presumption that it was not written by judges, but by politicians’, because it ‘constitutes a clear breach of the European treaties’. This is because, according to Ziobro, the CJEU does not have the competence to assess the organization of the court system in Member States.

This is a claim that has already been repeatedly raised by the Ministry of Justice in the context of this case. As we have regularly verified, this is not true. The CJEU confirmed in this ruling 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.

Contrary to the assertions of the minister of justice, the CJEU is fully authorized to examine the compatibility of Polish law with EU law in all areas where the EU has competence. It is also entitled to examine whether a Member State is observing treaty values.

And these values include the right to a trial by an independent and impartial court established by law. This is also a European standard arising from the European Convention on Human Rights.

The EU does not say exactly how national courts are to be structured. It does, however, set a general standard for the judiciary. And they are primarily supposed to be independent of politicians. Despite eight years of disputes with the EU, Minister Ziobro has still not understood this simple principle.

Kaleta: ‘A political charge by the European Commission and the Court of Justice to subjugate Poland’

Deputy Minister of Justice Sebastian Kaleta repeated the same reservations – based solely on disinformation – at the same press conference.

‘The European Union does not have the competence to define the structure of the judiciary. After all, in these rulings regarding Poland, the CJEU indicates that every State is free to structure this system.’ Even so, according to Kaleta, the CJEU acknowledged that ‘Poland needs to be dealt with’.

Kaleta said ‘the allegations regarding Poland which resonate from these judgments are bizarre, because they indicate that judges appointed after 2018 cannot be trusted without any specified basis’ [original syntax – editor’s note].

‘This is a political charge by the European Commission and the Court of Justice to subjugate Poland systemically, to incite rebellion and internal anarchy within Poland, so that Poland cannot function stably, and to ultimately lead to a situation in which there will be no courts of the Republic of Poland but there will only be Union courts.’

Here, the minister really went over the top. Anyone with even the slightest knowledge of Polish and European law knows that Polish courts are Union courts – a fact which arises directly from Poland’s membership of the European Union. However, Kaleta, like Minister Ziobro, is troubled by the fact that their ‘reforms’, which were intended to subordinate the courts fully to the authorities, have been undermined in a series of judgments by the CJEU and the ECtHR.

It was in these judgments that, among other things, the legality of the nominations for judges after 2018, namely neo-judges, was contested. This is because these nominations were given by the politicized neo-NCJ, which is dependent on the politicians in power. And since this is the case, its nominations for neo-judges are also defective.

Poland is not bound by the Charter of Fundamental Rights?

The deputy minister was also further outraged by the fact that the CJEU cited the obligations arising from the Charter of Fundamental Rights in its ruling. The Charter guarantees the right to a trial by an independent court.

Kaleta stated that the CJEU ‘has consistently been ruling on some alleged breaches of the Charter of Fundamental Rights, only that there is (…) protocol number 30 – the British protocol, in which Poland has secured itself against such rulings: the CJEU has no right to assess Poland’s activities from the point of view of the Charter of Fundamental Rights,’ said the minister, once again repeating the issue that has been repeatedly heard from the mouths of the PiS and Suwerenna Polska politicians, regarding the alleged lack of applicability of the Charter of Fundamental Rights in Poland.

Only that the claim that the Charter of Fundamental Rights is not binding in Poland is untrue. We have already repeatedly explained this, including in the following article.

Translated by Roman Wojtasz