The European Association of Judges (EAJ) welcomes the Judgment given by the Court of Justice of the European Union on 15 July 2021 in Case 791/19 European Commission v Poland and the Order for interim measures made by that court in Case 204/21R European Commission v Poland on 14 July 2021. Both decisions clearly confirm the assessment of the EAJ that the Disciplinary Chamber of the Supreme Court of Poland does not meet the requirements of an independent judicial body; that several provisions of the disciplinary procedure contradict European standards; and that a disciplinary prosecution of a judge for exercising a judge’s right to ask the Court of Justice for a preliminary ruling infringes Article 267 TFEU - all of which constitute breaches by Poland of its obligations under the Treaty on European Union (TEU).
However, the EAJ also considers that the last-minute reaction of the Polish government on 16 August 2021 is totally inadequate. The preliminary suspension of the activities of the Disciplinary Chamber by the chair of the court and the vague notice given by the government that the legal provisions will be improved are combined in the same announcement with a reference to a judgment of the Polish Constitutional Court which denies the priority of European Union Law over national law and which in itself is another infringement of the TEU. The Polish government thus clearly shows its reluctance to depart from its course of demolishing the independent judiciary in Poland.
The EAJ therefore welcomes the decision of the European Commission on 7 September 2021 to request the Court of Justice to impose penalties on Poland due to its failure to observe the Court´s decisions and encourages the European Commission to persevere in following this path until Poland has completely implemented the decisions of the Court of Justice.
Further, the EAJ reiterates that there remain in place several other matters damaging to the rule of law, particularly regarding the independence of the judiciary. These include among others the election procedure for the members of the Judicial Council; the arbitrariness of the appointing of judges, especially Supreme Court judges; the appointment of some of the members of the Constitutional Court; and the position and jurisdiction of the Minister of Justice.
As regards the election of the members of the Judicial Council for instance, the concerns of the EAJ include the apparent misuse by the governing party of state institutions, such as the Speaker of the Parliament (Sejm), in order to prevent Polish citizens from learning details of the candidates for the NCJ. Access to public information is guaranteed by art. 61 of the Constitution and, as the Supreme Administrative Court of Poland has pointed out, such access may be restricted only where that is necessary for “the protection of rights specified in legal acts of persons and business entities, protection of public order and safety or an important economic interest of a state” none of which circumstances applies in the case of election to the NJC. Further, since at least one member of the NCJ has not been nominated lawfully, the validity of its decisions is open to question and in other respects the NCJ may not meet European standards
The EAJ therefore urges the European Commission to continue to use all means which the Treaties provide to bring the Polish authorities to abide by relevant European standards and by their obligations owed under the TEU and, in particular, to ensure that the abovementioned decisions of the Court of Justice are respected and that implementation of the measures necessary to give effect to the decisions is not further delayed. Such measures include declaring that the decisions which this unlawful Disciplinary Chamber has issued are null and void.