Polish legislation on a disciplinary regime for judges is contrary to European Union law, ruled Advocate General Evgeni Tanchev in his opinion delivered on Thursday 6 May (Case C-791/19).
In early 2020, the European Commission initiated an action for failure to fulfil obligations (see EUROPE 12403/23) seeking a declaration by the Court of Justice that Poland had failed to comply with a previous judgment of the Polish Supreme Court, in which they relied on a judgment made by the Court in November 2019 (see EUROPE 12372/28) that the disciplinary regime for judges of the Polish Supreme Court and of the ordinary courts (on appeal) is contrary to the EU Treaties (Article 19 on effective judicial protection) and the Functioning of the EU (Article 267).
This regime does not guarantee the independence and impartiality of the Disciplinary Chamber, which is composed exclusively of judges selected by the National Council of the Judiciary, Poland, whose members are elected by the Sejm (the Lower Chamber of the Polish Parliament).
Thursday’s findings follow an earlier Court order that required the Polish authorities to suspend the application of the disciplinary regime pending the Court’s judgment (see EUROPE 12464/27).
Mr Tanchev considers Warsaw’s argument – that disciplinary cases against Supreme Court and general court judges do not concern the implementation of EU law – to be irrelevant.
Furthermore, the disciplinary system infringes the independence of the judiciary. Indeed, the possibility that disciplinary measures may be taken against judges because of the content of the judicial decisions they make or because they make a reference for a preliminary ruling, cannot be accepted insofar as such a situation creates “a chilling effect”.
The Advocate General is also of the opinion that the Commission has sufficiently established that the contentious provisions do not guarantee the independence and impartiality of the Disciplinary Board. Any lack of appearance of independence or impartiality that undermines the confidence that justice must inspire in a democratic society must not be allowed, he emphasised.
Finally, Mr Tanchev considers that the Polish regime disregards the right to a court established by law, infringes the right to have a case heard within a reasonable time and infringes the rights of the defence.
See the conclusions: https://bit.ly/3tq7cY7 (Original version in French by Mathieu Bion)