Rule of Law: European Commission launches infringement procedure to safeguard the independence of judges in Poland

Governance – Justice/Poland

Rule of Law: European Commission launches infringement procedure to safeguard the independence of judges in Poland
Press release 29 April 2020 Brussels
Today, the European Commission launched an infringement procedure by sending a Letter of Formal Notice to Poland regarding the new law on the judiciary of 20 December 2019, which entered into force on 14 February 2020.

The new law on the judiciary undermines the judicial independence of Polish judges and is incompatible with the primacy of EU law. Moreover, the new law prevents Polish courts from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the Court of Justice. After carrying out an analysis of the legislation concerned, the Commission concluded that several elements of the new law violate EU law:

First, the Commission notes that the new law broadens the notion of disciplinary offence and thereby increases the number of cases in which the content of judicial decisions can be qualified as a disciplinary offence. As a result, the disciplinary regime can be used as a system of political control of the content of judicial decisions. The new law violates Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union, which establish a right to an effective remedy before an independent and impartial court. It is incompatible with the requirements of judicial independence as established by the EU Court of Justice.

Second, the Commission notes that the new law grants the new Chamber of Extraordinary Control and Public Affairs of the Supreme Court the sole competence to rule on issues regarding judicial independence. This prevents Polish courts from fulfilling their obligation to apply EU law or request preliminary rulings from the EU Court of Justice. The new law is incompatible with the principle of primacy of EU law, the functioning of the preliminary ruling mechanism as well as with requirements of judicial independence.

Third, the Commission notes that the law prevents Polish courts from assessing, in the context of cases pending before them, the power to adjudicate cases by other judges. This impairs the effective application of EU law and is incompatible with the principle of primacy of EU law, the functioning of the preliminary ruling mechanism and requirements of judicial independence.

Finally, the Commission notes that the new law introduces provisions requiring judges to disclose specific information about their non-professional activities. This is incompatible with the right to respect for private life and the right to the protection of personal data as guaranteed by the Charter of Fundamental Rights of the EU and the General Data Protection Regulation.

Next step
The Polish Government has two months from this date to reply to the Letter of Formal Notice..