CJEU: Polish justice reform of December 2019 infringes EU law

Poland, the largest ex-communist EU country, has lost its reputation as a poster child of democratic transition, as well as access to billions worth of EU funds in bitter rule of law battles with the liberal West since PiS came to power in 2015.

On Monday, the Court of Justice of the European Union (CJEU) said that publishing online declarations on judges' membership in associations, non-profit foundations or political parties violated their right to privacy and could be used to sway them.

The Luxembourg-based court listed that among several elements of the PiS judicial overhaul that were damaging the independence of judges, and hence undermining the rule of law.

"The Polish justice reform of December 2019 infringes EU law," the court said in a statement. "The value of the rule of law is an integral part of the very identity of the European Union."

A hardline deputy justice minister of Poland, Sebastian Kaleta, swiftly dismissed the ruling as "farce".

Polish EU Affairs Minster Szymon Szynkowski vel Sek said that some of the issues pointed to by the CJEU had already been addressed. "This challenged legal status has undergone significant changes, it has been amended," he told reporters.

The case was brought by EU executive European Commission, which holds the bloc's budget and is tasked with enforcing joint laws in all 27 member states. The lawsuit was backed by Belgium, Finland, Denmark, Sweden and the Netherlands.

The ruling is final, meaning Poland must now amend the elements of its judicial set-up assessed by the CJEU as illegal. Should Warsaw fail to do that, the the high court could impose further financial penalties.

Poland had been ordered to pay the Commission, by Order of the Vice-President of the Court of 27 October 2021, a daily penalty of 1 million euros, which was reduced to 500,000 euros in April 2023. "The imposition of that periodic penalty payment was considered necessary in order to ensure that Poland gave effect to the interim measures set out previously in the order of 14 July 2021, in particular as regards the suspension of the application of the provisions of the amending law contested by the Commission," CJEU said.

"Today's ruling stops the accumulation of daily fines, which amounted to a total of 556 million euros," said TVN24 correspondent in Brussels Maciej Sokołowski. However, the CJEU stressed, "this does not affect Poland’s obligation to make the daily penalty payments due in respect of the past".

Sokołowski underscored that the fines are deducted from the European funds earmarked for Poland.

BELOW IS THE FIVE-POINT JUSTIFICATION TO THE RULING THE CJEU INCLUDED IN MONDAY'S PRESS RELEASE

"In the first place, the Court confirms that the review of respect by a Member State for values and principles such as the rule of law, effective judicial protection and judicial independence falls entirely within the competence of that Member State. In exercising their power concerning the organisation of justice, Member States must comply with the obligations arising from EU law. They are thus required to ensure that, in the light of the value of the rule of law, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of judges. That fundamental value, which is an integral part of the very identity of the European Union, is given concrete expression in legally binding obligations, which the Member States may not disregard by relying on national provisions or case-law, including constitutional provisions and case-law.

In the second place, the Court, relying on it’s earlier case-law, 5 reiterates its assessment that the Disciplinary Chamber of the Supreme Court does not satisfy the requirement of independence and impartiality. It infers from this that the mere prospect, for judges called upon to apply EU law, of running the risk that such a body may rule on matters relating to their status and the performance of their duties, in particular by authorising criminal proceedings against them or their arrest or by adopting decisions relating to essential aspects of the employment, social security or retirement regimes applicable to them, is liable to affect their independence.

In the third place, the Court considers that, in the light of the relatively broad and imprecise nature of the provisions of the amending law complained of by the Commission and the particular context in which those provisions were adopted, they lend themselves to an interpretation that allows the disciplinary regime applicable to judges, and the sanctions that that regime entails, to be used to prevent national courts from assessing whether a court or a judge meets the requirements relating to effective judicial protection under EU law, where appropriate by referring questions to the Court for a preliminary ruling. The measures thus adopted by the Polish legislature are incompatible with the guarantees of access to an independent and impartial tribunal. previously established by law. Those guarantees mean that, in certain circumstances, national courts are required to ascertain whether they themselves or the judges of whom they are composed or other judges or courts meet the requirements laid down by EU law.

In the fourth place, the fact that the amending law conferred on a single national body (namely the Extraordinary Review and Public Affairs Chamber of the Supreme Court) jurisdiction to verify compliance with essential requirements relating to effective judicial protection infringes EU law. Compliance with those requirements must be guaranteed across all the substantive areas of application of EU law and before all national courts seised of cases falling within those areas. The monopolistic control put in place by the amending law, combined with the introduction of the abovementioned prohibitions and disciplinary infringements is liable to contribute to weakening even further the fundamental right to effective judicial protection enshrined in EU law.

Finally, according to the Court, the national provisions requiring judges to submit a written declaration indicating any membership of an association, non-profit foundation or political party, which provide that that information be placed online, infringe the fundamental rights of those judges to protection of personal data and respect for private life. The placing online of information relating to past membership of a political party is not, in the present case, appropriate for attaining the alleged objective of strengthening the impartiality of judges. Information relating to membership of associations or non-profit foundations on the part of judges is liable to reveal their religious, political or philosophical beliefs. The placing online of that information could enable persons who, for reasons unrelated to the alleged public interest objective, seek to obtain information about the personal situation of the judge concerned to have free access to those data. Having regard to the specific context of the measures introduced by the amending law, such placing online is, moreover, liable to expose judges to risks of undue stigmatisation, by unjustifiably affecting the perception of those judges by individuals and the public in general."

PiS critics at home and abroad, however, say the wide-ranging changes have exposed Polish courts and judges to direct political meddling. They also denounce the PiS for restricting the rights of women, LGBT people and migrants.

Upset with the PiS' track-record on democracy, the European Commission blocked Warsaw's access to 35.5 billion euros of COVID stimulus and billions more in funds meant to help poorer member countries catch up on development.

Eyeing the looming election, opposition parties said a protest they organised in Warsaw to galvanise support gathered half a million people last Sunday.

But the PiS' mix of extensive social spending and firebrand nationalism has long proven attractive in the country of 38 million people, a NATO ally bordering Ukraine where Russia is now waging a war.

Opinion polls suggest PiS would still come first in the election expected this October or November, though might fall short of parliamentary seats to rule alone.