Warsaw, 1st of October 2020.
the President of the European Commission
Ursula von der Leyen
the Vice President of the European Commission
the European Commissioner for Justice
Dear President von der Leyen,
Dear Vice President Jourova,
Dear Commissioner Reynders,
the Board of the Association of Polish Judges IUSTITIA assures you of the highest respect for the actions taken so far by the European Commission to defend the rule of law in Poland.
Out of concern for the preservation of the basic standards of the democratic state of law and civil liberties, the Board informs that the Disciplinary Chamber of the Supreme Court of Poland ignores the Court of Justice of the European Union (Grand Chamber) ruling of 8 April 2020, in Case C-791/19 Commission v. Poland, suspending the application of the national provisions concerning the jurisdiction of the Disciplinary Chamber of the Supreme Court in disciplinary proceedings against judges. This is reflected, among other things, in the Disciplinary Chamber ruling issued on 20 September 2020, under case file II DO 52/20, in which it expresses a view that the CJEU ruling of 19 November 2019, in joined cases C-585/18, C-624/18, and C-625/18 cannot be considered valid on the grounds of the Polish legal order. The Disciplinary Chamber justified this view by explaining that in all proceedings before the Chamber of Labor and Social Security Law of the Supreme Court of Poland, in which preliminary rulings were submitted to the CJEU (III PO 7/18 – preliminary ruling registered in the CJEU under case file C-585/18; III PO 8/18 – preliminary ruling registered in the CJEU under case file C-624/18; III PO 9/18 – preliminary ruling registered in the CJEU under case file C-625/18), actions were carried out in court composition contrary to [national] law, which results in the nullity of the proceeding.
Since the nullity concerns the whole proceeding, then the CJEU preliminary ruling obtained under such invalid proceedings should not be binding (link to the ruling: http://www.sn.pl/sites/orzecznictwo/OrzeczeniaHTML/ii%20do%2052-20.docx.html).
The above ruling by the Disciplinary Chamber raises serious concerns about the respect for CJEU rulings in Poland. Our concern is further aggravated by the fact that the Disciplinary Chamber continues to work on cases in the area of broadly defined disciplinary proceedings, including those against judges. For 5 October 2020, another meeting was scheduled to consider a prosecutor’s complaint against the Disciplinary Chamber’s resolution regarding the waiving the immunity of Igor Tuleya, a judge at the Warsaw District Court known for his rulings and numerous public statements in defence of the rule of law in Poland. Regardless of the eventual decision, the fact that explanatory and judicial activities have been undertaken by the Disciplinary Chamber is contrary to the CJEU ruling of 8 April 2020. For the period between 1 October and 11 December 2020, the Disciplinary Chamber plans 29 sessions, for which 82 cases were submitted for consideration.
Let us recall that on 24 June 2020, the Polish government submitted explanations to the European Commission as to how it complies with the aforementioned CJEU ruling. Since then, the European Commission has neither requested the CJEU to impose financial penalties nor has it submitted a request regarding interim measures.
In this state of affairs, the Board of the SSP IUSTITIA repeats its appeal to you, Ladies and Gentlemen, to immediately undertake adequate actions that will lead to real (and not only declaratory) respect for European values and CJEU rulings.
President of the Polish Judges Association IUSTITIA