Rule of Law: Commission adopts next step in the infringement procedure to protect judicial independence of Polish judges
Today, the Commission decided to send an additional reasoned opinion to Poland regarding the continued functioning of the Disciplinary Chamber of the Supreme Court.
On 3 December 2020, the Commission sent an additional letter of formal notice to Poland, adding a new grievance to the infringement procedure started on 29 April 2020. Poland’s reply to the additional letter of formal notice does not address the Commission’s concerns. For this reason, today the Commission has decided to advance with the next step in the infringement procedure by sending an additional reasoned opinion to Poland.
The Commission considers that Poland violates EU law by allowing the Disciplinary Chamber of the Supreme Court – the independence and impartiality of which is not guaranteed – to take decisions, which have a direct impact on judges and the way they exercise their function. These matters include cases of the lifting of immunity of judges with a view to bringing criminal proceedings against them, and the consequent temporary suspension from office and the reduction of their salary. The Disciplinary Chamber is also deciding on matters related to labour law, social security and the retirement of Supreme Court judges.
By giving the Disciplinary Chamber powers that directly affect the status of judges and the exercise of their judicial activities, the Polish legislation jeopardises the ability of the respective courts to provide an effective remedy, as required by the second subparagraph of Article 19(1) TEU. The mere prospect for judges of having to face proceedings before a body whose independence is not guaranteed creates a ‘chilling effect’ for judges and can affect their own independence.
Poland has one month to reply to this additional reasoned opinion and to take the necessary measures to comply with EU law, otherwise the Commission may refer the case to the Court of Justice.
Background
A law of 20 December 2019 amending a series of legislative acts governing the functioning of the justice system in Poland, entered into force on 14 February 2020. On 29 April 2020, the Commission sent a letter of formal notice to Poland regarding this law on the judiciary. On 30 October 2020, the Commission moved forward with the infringement procedure by sending a reasoned opinion. The Commission is currently assessing the reply received from Poland.
The additional reasoned opinion adopted today follows on the additional letter of formal notice adopted on 3 December 2020, which has added a new grievance to the infringement procedure started on 29 April 2020. It does not replace the initial grievances already included in the reasoned opinion, which the Commission sent to Poland on 30 October 2020.
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