As Poland’s row over judicial independence continues to escalate, the EU’s highest court has imposed a €1 million daily fine on Warsaw for not implementing its summer orders.
On 14 July, the European Court of Justice (CJEU) ordered Poland to suspend certain powers of the country’s disciplinary chamber for judges. These powers included the ability to go after judges who apply EU law on judicial independence, its power to lift judicial immunity and to retroactively suspend all decisions already taken.
The European Commission asked the EU court on 7 September to impose a daily financial penalty for Warsaw’s non-compliance with the order. The Polish government defended its position, saying it did not have the power to implement the order.
“Compliance with the interim measures … is necessary in order to avoid serious and irreparable harm to the legal order of the European Union and to the values on which that Union is founded, in particular, that of the rule of law”, CJEU Vice-President Lars Bay Larsen wrote in the order.
The Court also said the Polish government had not provided evidence for “the assertion that despite the inadequacy of the measures adopted … Polish courts are complying in principle with that order”.
The EU’s court in Luxembourg also said that the Polish government’s plans to reform the judicial system within a year would not prevent “the occurrence of serious and irreparable harm” to the EU legal order.
The situation deteriorated even further in early October when the Polish Constitutional Tribunal, considered illegitimate by its critics, ruled that specific provisions of EU treaties are incompatible with the Polish constitution.
It also said the Polish Constitution stood above European rules in areas defined by the Tribunal, going against the legal principle of primacy of EU law, leading some to fear a legal ‘Polexit’ from the bloc.
“Quite striking that the judges in the CJEU are willing to take a much stronger stand to defend the rule of law (and ultimately democracy) in Poland than the governments in the European Council, which have so far been inclined to appease and enable nascent autocrats in their midst,” said R. Daniel Kelemen, professor of Political Science and Law at Rutgers University, on Twitter.
Meanwhile, Poland accuses Brussels of blackmail over its attempts to attach strings to the disbursement of already earmarked COVID cash.
The Commission maintains that its decision to hold up the approval of Poland’s recovery plan, the next step in unlocking the funds, is a separate procedure “based on the criteria laid out in the” recovery fund regulation.
[Edited by Alice Taylor]