EU court puts legality of Polish court reform in doubt

Judges of the Court arrive for a hearing at the European Court of Justice (ECJ) in Luxembourg, 14 October 2019. [EPA-EFE/JULIEN WARNAND]

Europe’s top court on Tuesday (19 November) ruled that Polish judges must decide on the validity of a disciplinary chamber imposed on them by the government, in a possible setback for Warsaw’s controversial judicial reforms.

As part of a disputed effort to assert greater political control, Poland’s right-wing populist government has created a disciplinary panel for judges that opponents allege lacks independence.

The European Court of Justice stopped short of declaring the new body illegal, but asserted “the primacy of EU law” and said courts must not refer cases to the panel without ensuring it is “independent and impartial”.

The Polish opposition will doubtless leap on the ruling to bolster their case that Polish Prime Minister Mateusz Morawiecki’s government is attacking the independence of the judiciary.

But the government will take heart that the Luxembourg court, which found against it earlier this month in a similar case, did not order that the Disciplinary Chamber be wound up.

On 5 November, the ECJ ruled that Poland was wrong to lower the retirement age of Supreme Court judges, a reform that critics said undermined the independence of the judiciary.

In Tuesday’s ruling, the court said that when complaints over early retirement are appealed, Polish courts can only defer the decision to the disciplinary chamber if they judge the panel to be independent.

“The principle of the primacy of EU law thus requires it to disapply the provision of national law which reserves exclusive jurisdiction to the Disciplinary Chamber to hear and rule on cases of the retiring of judges,” it said.

Retirement cases must “be examined by a court which meets the requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field”.

In addition to its legal battles, Warsaw also faces a political fight with Brussels, where the European Commission says constitutional reforms are endangering the rule of law.

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