EU’s top court strikes at the heart of Polish government’s judicial reform

EU’s top court strikes at the heart of Polish government’s judicial reform
/ European Union, 2021
By Wojciech Kosc in Warsaw June 6, 2023

The Law and Justice (PiS) government’s judicial reform of 2019 constitutes a breach of the European Union legal order, the bloc’s top court said in a ruling on June 5.

The ruling – the fourth concerning the reform and the fourth that Warsaw has lost – by the Court of Justice of the EU (CJEU) strikes at the essence of the government-driven changes in the judiciary, with the potential to make Warsaw further estranged from the EU. 

It could also add more fuel to the anti-European sentiment inside the already Eurosceptic government, especially in PiS’ coalition partner, the small Sovereign Poland Party, on which PiS’ parliamentary majority hinges.

The ruling elicited an angry reaction from the government.

Deputy Justice Minister and one of Sovereign Poland’s leaders Sebastian Kaleta called it a “farce.”

The Polish government has long maintained that the EU has no say over a member state’s judiciary. It has called the ruling an “intervention in Poland’s internal affairs.”

The opposition and legal experts not aligned with the government welcomed the ruling as a step towards restoring the rule of law in Poland.

The ruling follows a lawsuit by the European Commission, which sought a confirmation that the 2019 reform “infringes various provisions of EU law.”

The disputed law’s centrepiece was tightening disciplinary measures for judges to prevent them from questioning the legitimacy of certain appointed judges and, therefore, courts on which those judges would sit, by asking the CJEU for an opinion. 

Since the PiS-held majority in the parliament overhauled the judge-appointing body, known as the KRS, in 2017, to stack it with government loyalists, questions have followed as to the legitimacy of judges appointed by the KRS. 

The CJEU sided fully with the Commission, saying that while the rule of law, effective judicial protection and judicial independence, fall “entirely within the competence of a member state,” they must not be compromised by domestic legislation, including changes in that member state’s constitutional order.

The reform prevented national courts from “assessing whether a court or a judge meets the requirements relating to effective judicial protection under EU law, where appropriate by referring questions to the [CJEU] for a preliminary ruling,” the ruling read.

The CJEU also said that the very existence of the Disciplinary Chamber of the Supreme Court – a then-new body established (and later liquidated) to enforce the disputed measures – was a tool to put undue pressure on judges.

“The mere prospect, for judges called upon to apply EU law, of running the risk that such a body may rule on matters relating to their status and the performance of their duties … is liable to affect their independence,” the CJEU said.

The ruling means that Poland has to pay €565mn in penalties, which the CJEU imposed earlier, of €1mn daily, later halved to €500,000.

“The effects of those orders cease to apply with today’s judgment, which closes the proceedings. However, this does not affect Poland’s obligation to make the daily penalty payments due in respect of the past,” the CJEU said.

Some €360mn from the fines’ total has already been deducted from Poland’s due payments from the EU budget.