Did the ECJ Just Give a Stamp of Approval to Poland’s Backsliding?

With parliamentary elections happening this weekend in Poland, the ruling Law and Justice Party will seek to brandish its likely victory as a signal of support for controversial policies that have dismantled checks and balances. However, the now-numerous cases lodged with the EU’s highest court challenging these policies tell another story. After the European Court of Justice (ECJ) struck down one Polish law based on rule of law concerns, two of Poland’s judges have appealed for it to consider the main tool now used to intimidate judges: disciplinary proceedings.

The ECJ, based in Luxembourg, is set to rule this year or early next on Poland’s two-year-old disciplinary regime for judges, used by the ruling party to limit the independence of the judicial branch. A recent preliminary opinion from the European court’s Advocate General appeared to reject the case brought by the two Polish judges, who cited abuse of the disciplinary process as a source of political pressure. But a deeper reading of the draft finding suggests the potential for a more promising outcome for rule of law in Poland in future proceedings.

The disciplinary model created in 2017 by the Law and Justice Party-led Parliament bases decision-making on politics rather than legal judgment. It contains political appointees who are not even lawyers sitting in the highest-level disciplinary court. While the grounds for discipline for judges remained the same under the new law (e.g. breach of law or professional ethics), the system and its procedures have changed to place the politically appointed Minister of Justice in charge of naming disciplinary court judges and commissioners who act as prosecutors.

In addition, the new National Council of the Judiciary, an administrative body of judges that selects justices for, among others, the Supreme Court’s Disciplinary Chamber, was captured by the governing majority in 2018, allowing political allies of Law and Justice in Parliament to appoint all judges to the Supreme Disciplinary Chamber. A 2017 legal change instituted by the Law and Justice Party had already awarded the Minister of Justice control over retention and promotion of the judges in the lower chambers, and the ability to select which judge will hear which case. In other words, the Minister of Justice now determines both the officials who will bring the disciplinary charges as well as those who will adjudicate the cases.

It was no wonder that after this change in the system, the types of “violations” that may lead to disciplinary proceedings have expanded to include, for example, language in a judicial opinion that the Law and Justice party does not like, or receipt of an award for speaking about human rights. Other violations have included criticizing the government’s judicial reforms or giving a news media interview.

EJC Rulings on Poland’s Backsliding

The new disciplinary system has been at the center of controversy over what critics have called the systemized destruction of rule of law in Poland under the current government. As a result, the ECJ has intervened more and more often — for example, with its ruling prohibiting the forced retirement of more than a third of Poland’s Supreme Court judges.

The role of the ECJ is to determine whether the new provisions comply with European Union law. When a national court has doubts about the application of EU law, the court can – and the highest court in that country is obliged to – seek the guidance of the ECJ. The national court is bound by the ECJ’s decision.

Statistics show that other countries’ courts traditionally have requested ECJ interpretations of EU law more frequently than Poland’s courts. However, with the kneecapping of Poland’s Constitutional Court, the body responsible for judging legislation’s compliance with the Constitution, it became necessary for another judicial body to call out the Law and Justice government’s violations of basic principles of rule of law and judicial independence. The ECJ cannot verify that the provisions adopted by the Polish Parliament are consistent with Poland’s constitution, but if the new provisions concern EU law and values, the ECJ’s role becomes extremely important.

The Polish Cases 

In this case, the new disciplinary regime triggered the requests for ECJ review. Two judges in two cities – Łódź and Warsaw – submitted requests to the ECJ for review of whether the new disciplinary system complies with EU law. In both cases, judges petitioned the court because they were about to issue opinions unfavorable to the government and feared they would face disciplinary charges.

The judges in question, Judge Ewa Maciejewska and Judge Igor Tuleya, were not wrong. Almost immediately after Polish media reported on their requests to the ECJ, the disciplinary commissioner summoned them for a hearing that was to focus on their decisions to refer their cases to the ECJ. Although no disciplinary proceedings were launched after the summoning, that action itself created pressure for Maciejewska and Tuleya.

The Preliminary Opinion 

Generally, before the ECJ issues an opinion, the case is reviewed by the Court’s Advocate General, who issues a preliminary opinion. Although the ECJ isn’t bound by the opinion, in practice it adopts significant parts of this draft in about 90 percent of cases.

In this case, Advocate General Evgeni Tanchev determined that the national proceedings in which these judges asked for ECJ interpretation concerning judicial discipline did not significantly involve the application of EU law, so the ECJ should not adjudicate. His preliminary opinion explains that he found the case to be too “general” or “hypothetical,” not because no disciplinary proceedings were initiated, but because the application of EU law is not significant in the adjudication of individual disciplinary cases.

Upon first review, this opinion may seem like a blow to the work of rule of law advocates in Poland, who have looked forward to the ECJ’s review of what is believed to be a dangerously political body now used to intimidate judges. After all, the Polish government lauded this opinion as an indication that concerns about its judicial reform are misplaced.

However, a deeper review of the opinion shows that the Advocate General indicated that, while decision-making in individual cases may not be governed by EU law, the functioning of the disciplinary system itself is governed by EU law. This suggests that, while the ECJ may refrain from review now, there may be a review of the judicial disciplinary system as a whole in the future.

The Advocate General noted that violations of EU law may occur when judicial independence is impaired due to a “structural breach” that “impacts an entire tier of the judiciary.” In other words, the ECJ is indeed competent to rule on problems with the new disciplinary regime against judges and its compliance with EU law in the case of a “structural breach.”

This case is just one of a number of challenges to the alarming, increased use of disciplinary charges against judges in Poland. In April, the European Commission launched an infringement proceeding against Poland concerning the new judicial disciplinary regime. If the Polish government is unable to convince the European Commission that the regime is fair and complies with the rule of law, that case will also be directed to the ECJ.

That will provide yet another chance for the ECJ to examine the “reforms” of the Polish judiciary, including their structural defects. Rule of law advocates in Poland will now be pinning hopes on that case, hoping to undo yet another injury to judicial independence.

IMAGE: A picture taken on September 17, 2018 in Warsaw shows a statue of Poland’s 17th-century monarch King Sigismund III Vasa, as opponents of controversial changes in the judicial system covered it with a chasuble featuring the word “Constitution.” The raft of judicial changes significantly increases the right-wing Law and Justice (PiS) government’s influence over judges in the common courts, the National Judiciary Council (KRS), the Constitutional Tribunal and Supreme Court. (Photo by JANEK SKARZYNSKI/AFP/Getty Images)

  

About the Author(s)

Małgorzata Szuleka

Head of advocacy at the Helsinki Foundation for Human Rights in Warsaw, Poland. Follow her on Twitter (@m_szuleka)

Melissa Hooper

Director of Human Rights and Civil Society program at Human Rights First; previously worked for nine years as a practicing lawyer in state and federal courts on death penalty cases. Follow her on Twitter (@melhoop10)