Polish disciplining of judges against EU law - EU court

Polish legislation enabling disciplinary proceedings to be taken against judges violates EU law, and the EU Court of Justice (CJEU) should rule accordingly, the court's Advocate General said on Thursday in an opinion on the awaited ruling.

The ruling will follow the European Commission's decision in October 2019 to take Poland to the CJEU. The Commission argued that a Disciplinary Chamber under the Polish Supreme Court, set up in 2017, violated judicial independence in that it could have a "chilling effect" on judges, and thus ran against EU law.

Thursday’s statement could add further friction to Poland’s relationship with EU over the Polish government’s overhaul of the judicial system.

The European Commission has claimed that the overhaul threatens the independence of judges, and has thus taken the Polish government to court. So far Poland has refused to comply with instructions for the disciplinary chamber to be suspended.

In a statement release on Thursday, the CJEU’s Advocate General wrote that: "By allowing the right of national courts to make a reference for a preliminary ruling to be limited by the possible initiation of disciplinary proceedings, the contested measures infringe the second and third paragraphs of Article 267 TFEU, which regulate the discretion or obligation of national courts to make a reference for a preliminary ruling."

"In that regard, he recalls that national measures which expose national judges to disciplinary proceedings because they made a reference cannot be permitted. Indeed, such measures not only undermine the functioning of the preliminary ruling procedure, but also are likely to influence the decisions of other national judges in the future as to whether to make a reference, thus giving rise to a ‘chilling effect’.

"To the Advocate General’s mind, the mere prospect that a national judge may be subject to disciplinary proceedings or measures for making a reference strikes at the heart of the procedure governed by Article 267 TFEU and with it, the very foundations of the Union itself," the statement concluded.

The institution of the Disciplinary chamber was part of a broader overhaul of the Polish judicial system, large parts of which have been contested by the EU on the grounds that they made courts vulnerable to political pressure.