Poland's Law and Justice (PiS) party tabled on February 11 a draft bill seeking to resolve the long-standing argument with the European Commission over rule of law that has seen Brussels hold up billions in funding, which the government wants to use to boost economic growth.

The dispute centres on the Disciplinary Chamber of the Supreme Court, which the Commission wants Poland to disband, saying that judicial appointments to the chamber do not meet the criteria of impartiality and independence from the government. Hence, the criticism goes, the chamber could target judges critical of the government, which, in turn, could have an adverse effect on their impartiality and independence. 

Poland has so far dug in over the Commission’s demands to dismantle the chamber – and the entire regime of disciplining judges off which the chamber is a key part – arguing that the Commission is usurping power over a member state’s exclusive competence. 

Facing suspension of billions of euros from the EU’s pandemic recovery fund and delays in payouts from the bloc’s regular budget for 2021-2027, Warsaw has recently suggested proposals to address the Commission’s grievances.

The proposal by PiS seeks to curb the Disciplinary Chamber’s power to discipline judges, leaving it to review cases concerning other legal professional groups. Judges’ cases would be reviewed by regular Supreme Court judges instead.

It is not clear, however, whether the proposal by PiS – or a concurrently tabled proposal by President Andrzej Duda - are going to gain any traction with the Commission.

The core problem remains that the Disciplinary Chamber consists of judges appointed upon the recommendation of the National Council of the Judiciary (KRS), which – in theory – safeguards judicial independence. 

Following the government’s reforms, however, members of the KRS are no longer elected by judges but by the parliament. That undermines the KRS’ own independence and impartiality as well as that of the judges it appoints, the Commission has argued.

The Commission’s view has been backed by rulings of the Court of Justice of the European Union and the European Court of Human Rights. The Polish government has ignored the rulings. 

It also is not clear which of the proposals – by PiS or by Duda – will be debated in the parliament and when.