The European Commission launched a new formal procedure against reforms in Poland on Wednesday (29 April), giving Warsaw two months to alleviate concerns about a December law that the EU executive says threaten judicial independence.
The law, which overhauls the disciplinary scheme for judges, was adopted in December 2019 and entered into force in February.
It introduces disciplinary liability of judges, including for questioning the effectiveness of the appointment of a judge upon recommendation of the new National Court Register and for public activity, which, according to the authors of the amendment, is incompatible with the principles of independence of courts and judges.
The European Commission judged that these regulations prevent courts from directly applying certain EU law provisions protecting the independence of the judiciary.
The EU executive said the infringement procedure was “designed to safeguard the independence of judges in Poland” as the law which entered into force in February would punish judges who criticise the government’s reforms of the judicial system and pose “clear risks” of political control and influence over judicial decisions.
“Member states can reform their justice system, but they must do it without violating EU treaties. We have today launched an infringement procedure because there are strong legal bases for this,” the Commission Vice-President for Values and Transparency, Vera Jourova, told reporters.
“There are clear risks that the provisions regarding the disciplinary regime against judges can be used for political control of the content of judicial decisions,” Jourova said.
“This is a European issue because Polish courts apply European law. Judges from other countries must trust that Polish judges act independently. This mutual trust is the foundation of our single market,” Jourova said.
Poland has repeatedly rejected the Commission’s criticism in this matter, with government representatives emphasising that some regulations introduced in Poland already exist in legal systems in other member states.
The new Letter of Formal Notice to Polish authorities also indicated that the new act introduces provisions requiring judges to disclose specific information about their non-professional activities.
This was considered to be incompatible with the right to respect for private life and the right to protection of personal data guaranteed by the EU Charter of Fundamental Rights, and a contradiction of these provisions with the Data Protection Regulation.
The Polish government has two months from this date to reply to the letter. At the end of this process, further action may involve a complaint against Poland to the European Court of Justice (ECJ).
This would be another lawsuit against Poland at the CJEU for non-compliance with the rule of law.
[Edited by Zoran Radosavljevic]