Top EU court whacks Poland on judiciary’s lack of independence, again

The top court of the European Union on Thursday took another swing at Poland’s lack of judiciary independence by ruling in favor of a Polish judge who had opposed his own suspension.

The European Court of Justice said the removed judge should “be able to continue to exercise jurisdiction in the criminal proceedings before him” and added that cases must be reassigned to him.

The court was examining two cases related to the judge’s 2020 suspension at the Warsaw regional court, which had raised questions over the independence of its judiciary and a disciplinary chamber that suspended the judge. The disciplinary chamber was monitoring what judges did on or off their jobs, and has since been abolished.

Pekka Pohjankoski, a researcher in European law from the law faculty at the University of Helsinki, said, “This case is empowering the national judges.”

“The EU court is saying that Polish judges themselves have the right under EU law to not apply these Polish national rules,” he clarified.

This decision is the most recent strike in an ongoing clash over rule of law in Poland.

Dozens of Polish magistrates have submitted requests for “preliminary rulings” to the EU’s highest court after Poland’s controversial judicial reform in 2019, which critics say aims to bring courts under tighter political control — and has set off a deepening conflict between the nationalist government and the European Union.

In 2021, the Court of Justice of the European Union hit Poland with a €1 million daily fine for not complying with an order to suspend its disciplinary chamber.

The fine was halved to €500,000 a day this past April after the court considered that the Polish authorities had implemented partial — albeit insufficient — reforms to restore the independence of judges.

The confrontation with the EU court has cost Poland €557 million in fines, of which the Commission has docked Warsaw €360 million from EU subsidies, Polish press reported.

“This judgment demonstrates the EU court’s persistence when it comes to the independence and impartiality of judges within the European Union,” Yoann Boubacir, a lawyer and expert in European law, said. The case considers how “the confidence that justice must inspire in a democratic society governed by the rule of law is at stake.”

The judgment was noteworthy, Boubacir continued, in that it assesses the political organization of Poland. “In particular, it stresses the connections between Poland’s minister of justice, the public prosecutor’s office and the disciplinary board.” According to his interpretation, the court sees this as increasing the “risk that the disciplinary board may not be perceived as being ‘independent.'”

Pohjankoski added, “Formally speaking, Poland cannot appeal against this decision.”

Today’s judgment also comes as another step in the EU more broadly chiding Poland for stagnant rule-of-law progress. In its 2023 Rule of Law Report, the European Union threatened to withhold funds for Hungary and Poland due to their lagging implementation of proposed judiciary reforms.

“Serious concerns persist related to the independence of the Polish judiciary,” the report said.

Nicolas Camut contributed reporting.