The Court of Justice of the European Union, on Wednesday 8 April, ruled in favour of the European Commission's January request to suspend new disciplinary laws implemented by the Polish government against judges critical of the ruling power (case C-791/19) (see EUROPE 12403/23).
Justice Commissioner Didier Reynders welcomed the ruling and commented on his Twitter account that "it was important to act to protect the independence of the judicial system and the rule of law".
This demand for suspension follows the opening of an infringement procedure and was decided when the Polish Government voted in January for new measures developing this disciplinary regime (see EUROPE 12346/17).
In its decision, the Court recalls that in 2017, Poland adopted the new disciplinary regime for judges of the Supreme Court and ordinary courts, creating a new Disciplinary Chamber within the Supreme Court. The Commission had brought its action for failure to fulfil obligations, maintaining that the new disciplinary regime did not guarantee the independence and impartiality of the Disciplinary Chamber, whose 15 member judges were elected by the Sejm (Polish Parliament lower Chamber).
Furthermore, in the Commission's view, the new disciplinary regime allows the content of judicial decisions to be qualified as a disciplinary offence concerning judges of ordinary courts and does not guarantee that disciplinary cases are examined by a court "established by law", inasmuch as it confers on the president of the disciplinary chamber the discretionary power to designate the competent disciplinary court.
It "does not guarantee that disciplinary cases against judges of the ordinary courts are examined within a reasonable time" and "allows the right of the courts to refer requests for preliminary rulings to the Court to be limited by the possibility of initiating disciplinary proceedings".
The Commission had therefore asked the Court, by way of interim measures, to order Poland to suspend the application of those measures pending the final judgment of the Court and to put on hold the cases which the Chamber was about to judge.
In its order, the Court first rejected Poland's arguments on the inadmissibility of the application. While the organisation of justice in the Member States falls within their competence, "Member States are required to comply with their obligations deriving from EU law. It is thus for each Member State to ensure that the disciplinary regime applicable to judges of the national courts which are part of their system of legal remedies in the fields covered by EU law complies with the principle of the independence of the judiciary, inter alia by ensuring that the decisions delivered in disciplinary proceedings brought against the judges of those courts are reviewed by a body which itself satisfies the guarantees inherent in effective judicial protection, including that of independence".
In those circumstances, the Court has jurisdiction. It also recalls that interim measures can only be granted if it is established that their granting is prima facie justified in fact and in law and if they are urgent. Regarding the factual elements put forward by the Commission, the application appears "not unfounded".
As regards the urgency, the Court notes that purpose of proceedings seeking interim relief is to guarantee the full effectiveness of the future final decision, in order to ensure that there is no gap in the legal protection. The Commission argues that the application of the provisions between now and the final judgment "may cause serious and irreparable harm with regard to the functioning of the EU legal order". According to the Court, the mere prospect that they may be subject to disciplinary proceedings which may be referred to a body whose independence would not be guaranteed is likely to affect their own independence and thus cause serious harm to the EU legal order.
As a result, the Court "considers that the urgency of the interim measures requested by the Commission is established".
Link to the order: https://bit.ly/34monP4 (Original version in French by Solenn Paulic)