The European Commission decided on Thursday 10 October to refer Poland and its new disciplinary regime against judges to the Court of Justice of the European Union. This step comes after an unsuccessful reasoned opinion on the subject was sent in July.
On 10 October, it also requested an urgent procedure with the application of provisional suspension measures. It is this accelerated procedure that the Commission had already requested with regard to the Polish law on the Supreme Court.
In this particular case, the Commission criticises the new disciplinary regime, which entered into force at the beginning of 2019, which it says "undermines the judicial independence of Polish judges".
Polish law allows ordinary court judges to be subjected to disciplinary investigations, procedures and sanctions on the basis of the content of their judicial decisions, and in particular goes against the free exercise of their right, provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU), to request preliminary rulings from the Court of Justice of the European Union, the Commission explains.
Moreover, the new disciplinary regime does not guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which is composed solely of judges selected by the National Council for the Judiciary, which is itself politically appointed by the Polish Parliament (Sejm). It also does not guarantee that a court "established by law" will decide in the first instance on disciplinary proceedings against ordinary court judges. Instead, it empowers the President of the Disciplinary Chamber to determine, on an ad-hoc basis and with an almost unfettered discretion, the disciplinary court of first instance to hear a given case brought against an ordinary court judge.
In the case of Supreme Court judges, the Court of Justice of the European Union ruled, last June, in favour of the Commission and judged that this law on early retirement of judges was contrary to EU law (see EUROPE 12281/2) (Original version in French by Solenn Paulic)