EU Court of Justice and Poland cross swords over judicial independence

It is not yet a judgment, but it is a new warning shot that sent, Thursday, May 6, the Court of Justice of the European Union (CJEU) to Poland, about its very controversial ” reforms ”of the courts. Already condemned for having tried to take control of the Supreme Court, by forcing the early retirement of magistrates that he had not himself appointed, the Polish power is this time accused by the European Commission of having created a disciplinary regime for judges undermining their independence. The Advocate General, Evgeni Tanchev, agrees with him. And although its conclusions are not binding, they are often followed by the judges of Luxembourg, who should rule within a few weeks.

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The judges of this disciplinary chamber, created within the Polish Supreme Court, are appointed by the Judicial Council, whose members are appointed by the Polish Parliament, dominated by the ultraconservative Law and Justice party in power. “Any apparent lack of independence or impartiality undermining the confidence that justice must inspire in litigants cannot be tolerated”, recalls the Advocate General. ” This case comes against the backdrop of a growing number of disputes brought before the CJEU, concerning changes in Polish law affecting the independence of the judiciary.

For Evgeni Tanchev, she “ is undoubtedly of fundamental importance for the legal order of the Union. In general, a disciplinary regime for judges includes a set of rules making it possible to hold judges responsible for serious forms of misconduct and thus help to strengthen public confidence in the courts. However, there should be sufficient guarantees not to undermine the independence of judges by threatening or imposing sanctions which may be imposed on them. Such a regime is therefore linked to the rule of law and, in turn, to the functioning and the future of the judicial system of the Union depending on the Court and the national courts ”.

Uncertainties about applicable law

The Polish government has put forward the argument that the disciplinary mechanism of judges is internal in nature, unrelated to EU law. But the Advocate General pointed out that in a judgment delivered in March, “ the CJEU [avait] itself found that the Polish authorities [avaient] recently increased the number of initiatives aimed at curbing preliminary references to the CJEU on the question of the independence of courts in Poland, or calling into question the decisions of the Polish courts having made such referrals “.

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