Poland again reprimanded in the CJEU for the provisions on judges

Opinions of advocates general are recommendations for judges of the Court of Justice of the EU, whose judgments are usually consistent with these opinions. Spokesman Anthony Michael Collins announced on Thursday [15.12.2022] three opinions – on the complaint of the European Commission against the “muzzle law” and on two sets of preliminary ruling questions from Polish courts regarding the interpretation of EU law in the context of threats to the Polish rule of law in the judiciary.

The final judgment of the CJEU on the “muzzle law”, which the spokesman for Collins today found to be contrary to EU law, can be expected in early spring 2023. But the EU Court ordered an ad hoc suspension of its operation last year (as an interim measure), and until now Poland has been increasing the fine for ignoring this CJEU decision by another million euros every day. Currently, more than EUR 400 million has been collected, which the European Commission successively deducts from budget transfers for Poland.

Skip the decisions of the Constitutional Court

Some of the provisions of the “Muzzle Act”, which were questioned by the Advocate General, were removed with the liquidation of the Disciplinary Chamber this summer. However, restrictions on the judge’s independence test, i.e. the right of judges to check the status of other judges, still apply. This is a sensitive issue for the Polish authorities, because it concerns, among others, checking the status of “neo-judges”, i.e. those appointed with the participation of the politicized National Council of the Judiciary.

– The statutory prohibition deprives Polish courts of the ability to assess issues regarding the independence of the adjudication panel – emphasizes Collins, and such a solution is contrary to EU law.

In addition, in response to the question for a preliminary ruling related to the actions against Judge Igor Tuleya, the Advocate General of the CJEU emphasizes that Polish courts should disregard judgments (he prohibited any judicial review of the process of appointing judges) if they consider these judgments to be incompatible with EU law as interpreted by the EU Court of Justice.

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The government is negotiating with the European Commission

A chance to remove the problem of limitations in the judge’s independence test is the next draft of the court act, which the government agreed with the European Commission as part of negotiations on unblocking payments from the KPO, which was submitted this week. The draft introduces an independence test, which the Commission initially found to be compliant with EU requirements, and transfers disciplinary proceedings against judges to the Supreme Administrative Court.

Its adoption should be considered – in accordance with the political promise of the Commission – as sufficient to conclude that Poland has fulfilled the conditions of the KPO rule of law milestones.

When will the punishment for “muzzle” end?

Although the latest negotiations with Brussels did not directly concern the issue of the number of fines for the “muzzle law”, the adoption of the new law would increase the chances of stopping the charging of one million fines for each subsequent day. However, the problem may be that Poland has still not restored the judge’s immunity, but only restored him to adjudicate. still prefers that the CJEU itself (and not the European Commission) should decide whether to stop charging the penalty for a breach of the interim measure, which should therefore be addressed by the Polish authorities after the adoption of the new judicial law.

– The mere participation of a body such as the National Council of the Judiciary in the procedure of appointing judges cannot lead to doubts as to the independence of judges selected in this process – said spokesman Collins, referring to previous rulings of the CJEU on the Polish disciplinary system for judges. This is a softer line towards the “neo-KRS” (politicized KRS) than the one taken by the European Court of Human Rights (court of the Council of Europe), whose judgments about Supreme Court judges show that the participation of the “neo-KRS” determines the illegitimate status.

The CJEU spokesman has doubts about the courts

On the other hand, the CJEU, whose judgments are binding on EU institutions, has so far indicated that the participation of the “neo-KRS” in the appointment of a judge should be considered – as the spokesman for Collins reminded on Thursday – in “combination with other relevant factors and conditions in which the nomination process took place, which, as a result, may lead to doubts” as to the independence of the judge. The right to examine all these circumstances when appointing “neo-judges” (nominated with the participation of the “neoKRS”) is, according to Brussels’ intentions, to guarantee the independence test of the judge under the new judiciary act, the draft of which he submitted this week.

The existing jurisprudence of the CJEU on the issue of the National Council of the Judiciary means that the European Commission has so far refrained from launching anti-infringement proceedings against Poland due to the politicization of the “neo-KRS”. issues under the new Judicial Bill tentatively agreed this week. On the other hand, the problem of the National Council of the Judiciary is an official objection to Article 7 proceedings, which, however, at the present stage boils down to political pressure for change during the EU Council’s debate on Poland.