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The reform of the Polish judicial system, promoted and approved in December 2019 at the request of PiS, violates EU law. This was said at the time by numerous associations, all the opposition parties and the European Commission. And now, after countless procedures, it has also been ruled by the Court of Justice of the European Union.

For a decade, Brussels and Warsaw have clashed in everything that has to do with the courts. The government controlled in the shadow by Jaroslaw Kaczyski, brain and arm of the Law and Justice party, then began a slow assault on the judiciary and the lawsuits with the European Commission are the only thing that has prevented it from completely destroying the separation of powers. Last week, in the umpteenth episode, European and US pressure forced President Andrzej Duda to backtrack on the passage of a law that provides for the creation of a commission to investigate Russian interference and that critics believe is a ruse to persecute political adversaries, especially the former president of the European Council. Donald Tusk.

On 20 December 2019, the country adopted a law amending the national rules for the organisation of ordinary courts, administrative courts and the Supreme Court. The European Commission appealed, considering that this "amending law" gave the Disciplinary Chamber of the Supreme Court, whose independence and impartiality were clearly not recognized, powers to rule on the status of judges and the exercise of judicial functions. That is, it became an organ of control, surveillance and punishment.

With the creation of this body, the Government removed responsibilities from the Supreme Court, and magistrates were imposed "the obligation to communicate information on their activities in associations or foundations, as well as on their political affiliation in the past", and by ordering the publication of this information, the "amending law violates the right to respect for private life and the right to the protection of personal data".

A long fight with the institutions began that punctuated the creation of the European recovery fund, the distribution of Next Generation funds and that has further rarefied any bilateral deal. The clash was open and frontal, but with the war in Ukraine it was in the background, since Warsaw has occupied a prominent place in everything that involved working to punish Russia. Changes have been made in these years, modifications after community pressure and magistrates, but the process was still underway because PiS has never accepted criticism and aspired to be able to recover the initial project.

The Commission, like many of the other open court cases, called for immediate temporary measures to avoid irreparable harm, such as when Poland wanted to forcibly retire many judges. During the procedure, the Government was ordered at the end of 2021 to pay a fine of one million euros per day, as the high court of Luxembourg considered that it was necessary "to ensure that Poland complied with the provisional measures". In April last year the fine was reduced to half a million, but with today's judgment, which definitively closes the file, Poland's obligation to pay the penalties owed remains.

"Today is an important day for the restoration of an independent judiciary in Poland. Since the adoption of the law in December 2019, the Commission has expressed its point about the law clearly and firmly: it undermines the independence of Polish judges. Any backsliding in the organization of justice must be avoided. After today's decision, the law on the judiciary will have to be adapted accordingly," said Justice Commissioner Didier Reynders.

"Although the EU has no competence to assess the organisation of the judiciary according to the Treaties, the CJEU has concluded that it can assess the Polish judiciary. The ruling indicates that Poles have no right to information about whether the judges trying their cases are political activists. This is a farce and further proof that the EU will not honour any commitments. Although the Treaty of Lisbon excludes the possibility for the CJEU to rule on Poland's compliance with the Charter of Fundamental Rights, the court always makes decisions on its basis and interprets it in relation to Poland," the country's Secretary of State for Justice, Sebastian Kaleta, responded on his Twitter account.

LEGAL ARGUMENTS

In the decision of the CJEU, the value of the rule of law prevails, which as recalled in the letter "is part of the very identity of the Union as a common legal order and is specified in a series of principles that contain legally binding obligations for the Member States".

First, the Court emphasises that the monitoring of a Member State's compliance "with values and principles such as the rule of law, effective judicial protection and judicial independence" falls fully within its competence. Moreover, the community partners are also "obliged to ensure that any regression, in terms of the value of the rule of law, of their legislation on judicial organization is avoided, refraining from adopting rules that undermine the independence" of the magistrates.

Second, the Court, relying on its case-law, reaffirms its finding that the Disciplinary Chamber of the Polish Supreme Court "does not satisfy the requirement of independence and impartiality". Thirdly, Luxembourg considers that, "in view of their breadth and imprecision and the particular context in which they were adopted", the provisions of the law "are incompatible with guarantees of access to an independent, impartial tribunal previously established by law", since in practice they imply that in some circumstances national courts are obliged to verify whether they themselves or their judges or other judges or courts. meet the requirements laid down by Union law".

"You may disagree with the European Commission, but the judgment of the Court of Justice of the EU resolves the matter definitively. The CJEU has the final say when it comes to the application of EU law and the protection of the EU legal order. As a member of the European family, I urge the Polish authorities to fully comply with the sentence. This is necessary to strengthen the independence of Polish courts," said Commissioner Reynders.

  • European Union
  • Poland
  • Articles Pablo R. Suanzes

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