Poland has blocked European recovery funds and cohesion funds in Brussels due to the crusade of its Government –commanded by PiS, Vox’s main European ally– against LGTBI groups and judicial independence. And it has several open judicial procedures, in addition to having activated Article 7 – a kind of censorship that can lead to you losing your vote in the Council – for violating the founding values of the EU.
But this Tuesday the Community Executive has taken a further step as the Polish Government maintains its assault on the country’s judicial power and its defiance of the pre-eminence of community legislation over state legislation.
First, the European Commission has decided to request the Court of Justice that the EU impose economic sanctions on Poland to ensure compliance with the Court’s injunction order, which referred to the functioning of the Disciplinary Chamber of the Supreme Court of Poland and the suspension of other provisions of Polish law affecting judicial independence. “The Commission asks the Court to impose a daily fine on Poland as long as the measures imposed by the Court’s order are not fully applied,” says the Community Executive.
Secondly, the Commission has also decided to send a letter of formal notice to Poland for failing to take the necessary measures to fully comply with the judgment of the Court of Justice (of 15 July 2021), which states that Polish legislation on the scheme disciplinary action against judges is not compatible with EU law.
Deaf ears in Warsaw
On July 20, the European Commission sent a letter to Poland on the two issues: the order of provisional measures of the Court of Justice (July 14) and its judgment (July 15). Brussels requested Poland to communicate all the measures taken or planned to fully comply with the Court’s order, and all the necessary measures to fully comply with the judgment.
The Polish authorities replied to the Commission on 16 August. Regarding the order of provisional measures of 14 July, after having examined the response of the Polish authorities, the European Commission considers that Poland has not taken all the necessary measures to fully comply with the Court’s order. “In particular,” says Brussels, “the provisions referred to in the order continue to apply. For example, the Polish authorities recently opened a disciplinary investigation against an ordinary court judge who applied the July 14 order in a case pending before him. In addition, the Disciplinary Chamber continues to function. ”
As regards the judgment of the Court of 15 July, the European Commission considers that “Poland did not take the necessary measures to implement it. Poland reported on the intention to dismantle the Disciplinary Chamber in its current form, but without providing further details. For example, the president of the Disciplinary Chamber continued to designate disciplinary courts of first instance to hear cases of ordinary court judges. ”
If the European Commission considers that the Polish response to the letter of formal notice sent this Tuesday “is not satisfactory, it will be able to take the case once more before the Court of Justice”.
On April 29, 2020, the European Commission initiated an infringement procedure of the Polish law of December 20, 2019 that modifies a series of legislative acts that govern the functioning of the judicial system in Poland. On March 31, 2021, the Commission decided to refer Poland to the Court of Justice and requested provisional measures. On July 14, 2021, the Court of Justice imposed precautionary measures on Poland, related to the functioning of the Disciplinary Chamber of the Supreme Court of Poland, acceding to the request of the European Commission in all points.
The Court ordered Poland to suspend the provisions by which the Disciplinary Chamber of the Supreme Court can rule on requests to lift judicial immunity, as well as in matters of employment, social security and retirement of Supreme Court judges; suspend the effects of the decisions already adopted by the Disciplinary Chamber on the lifting of judicial immunity; and suspending the provisions that prevent Polish judges from directly applying EU law protecting judicial independence and referring preliminary decisions on such matters to the Court of Justice.
Furthermore, on April 3, 2019, the European Commission initiated an infringement procedure claiming that the new disciplinary regime undermines the judicial independence of Polish judges and does not guarantee the necessary guarantees to protect judges from political control as required by the Court of EU Justice.
On October 10, 2019, the European Commission referred this case to the Court of Justice of the EU and on January 14, 2020, the Commission decided to request the Court of Justice precautionary measures from Poland, ordering it to suspend the operation of the Disciplinary Chamber of the Supreme Court.
On April 8, 2020, the Court of Justice ruled that Poland should immediately suspend the application of the national provisions on the powers of the Disciplinary Chamber of the Supreme Court with regard to disciplinary cases related to judges, confirming the position of the European Commission .
On July 15, 2021, the Court of Justice ruled that the disciplinary regime for judges in Poland “is not compatible with EU law”.
“The Court confirmed all the claims made by the Commission. The Polish disciplinary regime undermines the judicial independence of Polish judges and does not ensure the necessary guarantees to protect judges from political control”, says Brussels: “If the Court of Justice determines If a Member State has failed to fulfill an obligation under the Treaty, the State is obliged to take the necessary measures to fully comply with the judgment of the Court of Justice “.