EU goes legal with Poland over rule of law

The European Commission (EC) has referred Poland to the Court of Justice of the European Union (CJEU) for violating EU law, it announced Wednesday, 15 February. 

EC Vice-President for Values and Transparency Vera Jourova tweeted “EU law must be equally applied across the Union. The EU’s top court will now evaluate the actions of the Polish Constitutional Tribunal.”

Billions in funds frozen over rule of law row

Poland, along with its long-time ally Hungary, has been hit with an unprecedented freeze of tens of billions of euros in funding over concerns regarding the application of the rule of law.

In its Recovery and Resilience Plan (RRP), Poland committed to undertake reforms of the disciplinary regime regarding judges, to dismantle the Disciplinary Chamber of the Supreme Court, and to create review proceedings for judges affected by decisions of that Chamber aimed at strengthening certain aspects of the independence of the judiciary.

The tribunal is widely seen as being under the influence of PiS, with several judges appointed in violation of the constitution. According to the EC, the Constitutional Tribunal’s rulings breached various fundamental principles, including autonomy, primacy, effectiveness, uniform application of Union law, and the binding effect of rulings of the Court of Justice of the European Union. 

Poland’s ruling PiS party is keen to get the EU funds ahead of the country’s upcoming election in the autumn. Poland was hit with a record-high daily fine of EUR 1mn from October 2021 for not complying with an EU court order to suspend the controversial disciplinary mechanism. The EC is unlikely to decide on releasing funds until the judicial reform bill is law.

The bill shifts judicial disciplinary matters from the Disciplinary Chamber of the Supreme Court, seen as being under the government’s influence, to the Supreme Administrative Court, another top court but one viewed as being more independent.

However last week President Andrzej Duda sent a bill reversing judicial reforms to a top court for adjudication, a key part of the ‘milestones’ agreement Poland made with the EU to release EUR 36bn of grants and loans from the RRF. Having been involved in the bill’s drafting, Duda eventually sent the bill to the Constitutional Tribunal, reportedly dissatisfied with its final form, however.

Row over EU’s legal primacy began in 2021

The Polish Constitutional Tribunal issued rulings in July and October 2021 that deemed provisions of the EU Treaties incompatible with the Polish Constitution, challenging the primacy of EU law.

The EC responded by initiating an infringement procedure with a letter of formal notice in December 2021. In September 2022, Poland rebutted the EC’s opinion to Poland, leading to the EU’s de facto governing body now referring the matter to the Court of Justice of the European Union.

The EC stated its goal as safeguarding Polish citizens’ rights and access to benefits as citizens of all EU member states and underlined that the rulings also violate a judicial protection guarantee, as the Polish court’s interpretation of this was “unduly restrictive”. 

According to the EC, the Constitutional Tribunal no longer satisfies the prerequisites of an independent and impartial tribunal established by law due to the irregularities in the appointment procedures of three judges in December 2015 and the selection of its president 12 months later. 

EU underlines that Polish judiciary incompatible with EU law

The EC wrote on Wednesday that “as reflected in 2022 Rule of Law Report, serious concerns related to the independence of the Polish judiciary continue to persist, recalling that “in 2019 and 2020, the Commission launched two new infringement procedures to safeguard judicial independence. Since then, the Court of Justice found that the disciplinary regime for judges in Poland is not compatible with EU law.”

“The rule of law is one of the fundamental values of the European Union. It is essential… to ensure that national judges … can fulfil their role in the application of EU law and can properly interact with the Court of Justice of the European Union,” the statement added.