The European Court of Human Rights (ECHR) said on February 3 that Poland violated a company’s right to fair court proceedings by putting unlawfully appointed judges on a panel in the Supreme Court that reviewed the company’s case.

The ruling moves Poland’s judiciary, remodelled under the Law and Justice (PiS) government, further away from the EU legal order. It also opens wide a legal way of disputing the Supreme Court’s judgments in the future, including business and investment cases, experts say.

In the judgment, the ECHR said that the Supreme Court’s Civil Chamber was not an “independent and impartial tribunal established by law” as it consisted of judges appointed by the reorganised National Council of the Judiciary (KRS), itself a body found to be in breach of independence and impartiality principles.

“Today’s judgment has far-ranging consequences. So far, the Polish rule of law crisis has been mostly about the status of judges, the disciplinary regime and criminal procedure. Today’s verdict opens a new avenue of Polish rule of law crisis, [as] civil proceedings [are about] money,” Jakub Jaraczewski, a legal expert with Reporting Democracy wrote on Twitter.

The crux of the matter is that “the Civil Chamber had been composed of judges appointed by the president of Poland on the recommendation of the [KRS] … which has been the subject of controversy since the entry into force of new legislation providing, among other things, that its judicial members are no longer elected by judges but by the parliament,” the ECHR said in the judgment.

That, in turn, led to “unduly influence by the legislative and executive powers” of the process of appointing judges to the Civil Chamber, the ECHR said.

By allowing politicians to in effect appoint members of the disciplinary body, judges who displease the government can be removed or just frightened into following its line.

The case was brought to the ECHR by Advance Pharma, a retailer of dietary supplements. In 2010, the company had to withdraw one of its products, a supplement for men wanting to “enhance their sexual performance,” due to an unregistered ingredient that the company also did not list on the label.

Before an appeal found out that the decision to withdraw the supplement was flawed, the company had in the meantime destroyed the supplement’s stock and sued the state for damages. 

The damages case was subsequently dismissed because Advance Pharma was only ordered to withdraw the supplement in question, not destroy it. Still, the company took it to the Supreme Court where a Civil Chamber panel of three judges – all the KRS-appointed judges - also ruled to dismiss it. 

Advance Pharma then took the case to the ECHR in what might start a deluge of similar cases if any company’s legal dispute involves judges appointed by the KRS.

There are as many as 94 cases concerning the Polish judiciary in the ECHR.

On February 3 Polish President Andrzej Duda proposed replacing the controversial disciplinary body of Poland’s Supreme Court with a new entity in a bid to resolve the long-standing and costly dispute with the European Commission over the rule of law.