How to save the rule of law in Poland
The European Commission should return to the ECJ
The European Court of Justice (ECJ) has forced Poland to undo some steps in the demolition of judicial independence. But Poland's judiciary is still under siege. No member state of the EU has ever gone as far in subjugating its courts to executive control. EU member states and all parliamentary groups should support the European Commission and the Court in their ongoing battle to protect the rule of law in Poland.
ESI newsletter: Winter is coming - Polish Bulldozer – win-win-win for the rule of law (20 December 2021)
ESI report: The Polish Bulldozer – Towards a win-win-win for Poland, the EU and the European Commission (18 December 2021)
ESI newsletter: 5 billion to save the EU - Poland, Penguins and the Rule of Law (6 August 2021). Also available in French, German, and Polish.
ESI background: Inside the system Ziobro built (5 August 2021)
ESI background: How infringement penalties are set – the case for 5 billion (5 August 2021)
Since coming into power in 2015, the ruling Law and Justice Party (PiS) has brought the whole system of appointment, promotion and disciplining of judges and prosecutors under its control. It captured the Constitutional Tribunal, ignoring its rulings until it had filled it with new friendly judges. It dismissed the members chosen by judges on the National Council of the Judiciary, the body responsible for nominating judges and safeguarding the independence of the judiciary, and replaced them by members chosen by the parliamentary majority. The Council of Europe's Venice Commission warned already in late 2017 that the changes to the judicial system bore "a striking resemblance with the institutions which existed in the Soviet Union and its satellites."
Then, in December 2017, PiS pushed through parliament a new law on the Supreme Court, stipulating the forced retirement of dozens of judges, so that 70 of 120 Supreme Court judges would be replaced.
On 29 May 2018 the Batory Foundation and ESI published a joint report on the rule of law in Poland. Building on a landmark ruling concerning a salary dispute of judges in Portugal from February 2018, we made a concrete recommendation: that the European Commission take Poland to the European Court of Justice (ECJ) to challenge Poland's Law on the Supreme Court.
The report received widespread and prominent support. On 2 July 2018 the European Commission started the procedure which led Poland to being taken to the ECJ in September. The court issued an interim measure to stop implementation of the law. The Polish government withdrew its changes. It was a victory for the rule of law.
But this case addressed only one aspect of the systematic demolition of Poland's independent judiciary by the governing party. In 2018, new legislation allowed Poland's Minister of Justice, who since 2016 also serves as prosecutor general, to appoint every single person involved in the investigation, prosecution and adjudication of disciplinary charges against ordinary judges in Poland. The minister appointed new national disciplinary officials who began to initiate disciplinary investigations against judges openly critical of his efforts to subdue Poland's independent judiciary.
On 22 March 2019 the Batory Foundation and ESI made another concrete recommendation:
"The European Commission needs to take Poland to the European Court of Justice (ECJ) as soon as possible for infringement of the EU's fundamental values and principles, focusing on disciplinary procedures and the executive's control over judges."
Two weeks later, on 3 April 2019, the European Commission launched another infringement procedure against Poland, stating that "the new disciplinary regime undermines the judicial independence of Polish judges by not offering necessary guarantees to protect them from political control, as required by the Court of Justice of the European Union."
On 19 November 2019 the ECJ issued a landmark ruling, setting out criteria to judge the independence of any court as determined by the EU treaty and inviting the Labour Chamber of the Polish Supreme Court to apply these criteria. On 5 December 2019, the Labour Chamber ruled that the new Disciplinary Chamber failed to satisfy the criteria of judicial independence as set out by the ECJ. It also invited all Polish judges to apply the ECJ criteria directly.
In response, on 12 December the government presented a draft law introducing a range of new disciplinary offences specifically targeting judges applying the recent ECJ ruling. As proposed by ESI in a third report, on 14 January 2020 the European Commission asked the ECJ to issue an interim measure to stop all activity by the new Disciplinary Chamber. Less than 10 days later and in clear defiance of this step, on 23 January PiS' parliamentary majority adopted the new law allowing the targeting of judges applying the ECJ ruling.
On 15 July 2021 the European Court of Justice (ECJ) in Luxembourg concluded in a historic judgement that the Polish disciplinary system for judges violated the EU treaties and that Polish judges have good reason to fear consequences if they issue judgements that displease the government.
Ziobro ignored the judgement. The disciplinary chamber of Poland’s supreme court keeps working.
The ball is now with the European Commission. To preserve the independence of Polish courts, it must ask the ECJ now to declare that Poland has failed to fulfil its obligations to implement the 15 July judgement and to impose a penalty payment:
- It must go back to the European Court of Justice as soon as possible. It is vital to pre-empt further drastic changes damaging the Polish judiciary.
- The financial penalty must be high enough to ensure that Poland will implement the 15 July ECJ judgement. The Commission’s guidelines on this refer to “the need to ensure that the penalty itself is a deterrent to further infringements.” ESI proposes 1 percent of Polish GDP per year, which is around 5 billion Euro. This would be in line with current EU law.
- This would be even more likely to restore “effective legal protection” in Poland if the European Commission also explicitly links disbursements from its new Resilience and Recovery Facility (RRF) to implementation of ECJ judgements on the rule of law.
This would be a win-win-win scenario: A win for the rule of law in Poland. A win for the European legal order. A win for the people of Poland.