The European Union is referring Poland to Europe’s top court over long-standing concerns about respect for the rule of law and the independence of the country’s Supreme Court judges, EU officials said Wednesday.
The bloc’s executive commission said it will ask the European Court of Justice to order interim measures until a final judgment is given in the case “to prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order.”
The European Commission had previously warned Poland that it might go to the European Court of Justice if the government did not take action to fix the problems with the Polish law on judicial power.
“It’s a crucial step in the infraction procedure,” EU Justice Commissioner Didier Reynders said of the court referral.
The EU commission’s case is part of a long-running dispute between Brussels and the nationalist governments in Poland and Hungary over democratic standards and the rule of law in the 27-nation bloc.
The commission considers Poland in violation of EU law for allowing the country’s Disciplinary Chamber of the Supreme Court to make decisions which have a direct impact on judges and the way they do their jobs, undermining judicial independence.
“These matters include cases of the lifting of immunity of judges with a view to bringing criminal proceedings against them or detain them, and the consequent temporary suspension from office and the reduction of their salary,” the European Commission said. “The mere prospect for judges of having to face proceedings before a body whose independence is not guaranteed creates a ‘chilling effect’ for judges.”
In Warsaw, government spokesman Piotr Mueller questioned the EU’s authority in the matter.
“Regulation of the justice system area belongs solely to the national authority, and is the direct result of the provisions of Poland’s Constitution and of the EU treaties,” he said.
Mueller also said on Twitter that the Commission’s motion to the court “has no legal or factual grounds.” He insisted that “regulations in Poland are in line with the standards in force in the EU.”
A series of legislative acts in late 2019 governs the way Poland’s justice system operates. The laws took effect in February 2020. The European Commission started infringement proceedings against the right-wing government in Warsaw in April, and took further steps in October and December.
In November, the Disciplinary Chamber suspended Judge Igor Tuleya and cut his salary by 25%. Tuleya, who was critical of the changes to the justice system, has become the symbol of the struggle for judicial independence in Poland. Tuleya’s immunity was also waived, allowing prosecutors to press charges against the judge for having allowed journalists to hear the verdict in a politically sensitive trial.
He was the third judge critical of Polish Justice Ministry policies to be suspended by the Disciplinary Chamber of the Supreme Court, which is largely composed of government loyalists.
The European Commission said the interim measures it is seeking include asking the Court of Justice to suspend legal provisions that allow the chamber to decide on requests “for the lifting of judicial immunity, as well as on matters of employment, social security and retirement of Supreme Court judges.”
The head of Poland’s largest union of judges, Krystian Markiewicz said the Commission’s decision is a “victory of the free people” and a “victory of the judges” because it shows that their defense of their independence has Europe’s backing.
The regulations introduced by the government since it took power in 2015 have forced some of the older judges into retirement, notably those critical of government moves. The government is filling the jobs with loyalists and insists the changes are needed to restructure the justice system away from what remains from the communist era.
Critics insist that most of the personnel has already been changed since then, and claim that the government’s intention is to exert political control over the judiciary.