Poland’s supreme court has been told by the EU’s court that it is up to the Polish court itself to determine whether its newly constituted disciplinary chamber is sufficiently independent to rule on controversial enforced judicial retirements.
In kicking the ball back to the Polish court, the Court of Justice of the European Union (CJEU) made clear it was just as concerned as the referring court about the issues raised over judicial independence, but that initially the issue should be dealt with domestically.
The Luxembourg-based CJEU on Tuesday ruled that cases concerning the application of EU law must not be dealt with by courts or tribunals that are not independent.
But it was up to the Polish supreme court, faced with a challenge from such courts, themselves to determine their impartiality or refer cases on to other courts .
Poland’s Supreme Court must now decide whether a body overseeing judges is politically independent.
The Polish Supreme Court had asked the ECJ to rule whether sufficient guarantees for judicial independence could be provided by Warsaw’s National Council of the Judiciary, a body responsible for appointing judges and reviewing ethical complaints against judges, which was completely reformulated in 2018, and a new Disciplinary Chamber of the Supreme Court.
According to Tuesday’s judgement, it is up to the Supreme Court of Poland to investigate the independence of the Disciplinary Chamber.
Its judges were chosen by the National Council of the Judiciary, which, according to Polish judges, does not ensure independence from the legislative and executive branches of government.
“It is a very happy day for Poland and rule of law advocates because we finally clearly see that neither the new National Council of Judges nor the Disciplinary Chamber are being tolerated in the European legal space,” analyst said.
“At the same time, it is a very sad day because when it comes to the rule of law in the EU, Poland lags behind. No other country, even Hungary, has such a record as Poland.”
Tuesday’s ruling stated, “The referring court must ascertain whether the new Disciplinary Chamber of the Polish Supreme Court is independent, in order to determine whether that chamber has jurisdiction to rule on cases where judges of the Supreme Court have been retired, or in order to determine whether such cases must be examined by another court which meets the requirement that courts must be independent.”
“The Grand Chamber’s judgement may directly impact on the status of hundreds of judges in Poland that have been appointed or promoted on the NCJ’s recommendation,” Researcher said.
“This would be a yet another serious blow to the validity of Law and Justice’s judiciary reforms, especially given that the NCJ is the apple in the eye of the governing majority.”
Since coming to power in 2015, the right-wing Law and Justice party, which recently secured its second consecutive term, has been seeking to reform the Polish judicial system.
They say the system was corrupt and served only the interests of the elite, including the former ruling party, the Civic Platform.
Over the past four years, judges loyal to Law and Justice have been appointed to the Constitutional Tribunal and other judicial bodies, such as the National Council of the Judiciary.
The Ministry of Justice also replaced court presidents and vice-presidents, and those judges whose rulings ran contrary to the party line have faced disciplinary proceedings.
The Law and Justice party also introduced changes into the organisation of the Supreme Court, trying to remove uncooperative judges by lowering the retirement age of judges, including that of the first president.
The European Court of Justice (ECJ), the supreme court of the European Union, once again handed down a judgement expressing concerns over Poland’s judicial “reforms” imposed by the ruling Law and Justice party.
European Court has questioned legality of Poland’s judicial reforms.