On 5 June 2023, The Court of Justice of the European Union (the “Court”) rendered a Grand Chamber ruling condemning the Polish government’s attacks on the country’s judiciary. The ruling provides a detailed analysis of the concept of independence of courts and the value of the rule of law. (C-204/21)
Background: a consistent undermining of the independence of the Polish judiciary
The ruling follows a record-high daily fine of one million euros which was imposed on Poland for failing to comply with an interim judgment of the Court suspending the application of Poland’s disciplinary mechanism for judges. To date, Poland is facing about 550 million euros in fines.
Concretely, the ruling targets five measures taken by the Polish government which, according the Court, endanger the independence of judges:
(i) The Disciplinary Chamber of the Polish Supreme Court was granted jurisdiction to rule on matters directly affecting the status of judges and their performance, such as applications for authorisation to initiate criminal proceedings against judges, cases relating to employment and social security law with regard to the Supreme Court judges and cases relating to the compulsory retirement of the Supreme Court judges. This is considered problematic because it was established in another judgment of the Court that the independence and impartiality of the Disciplinary Chamber are not guaranteed.
(ii) All national courts were prohibited from verifying compliance with EU law requirements relating to an independent and impartial tribunal;
(iii) Judges reviewing whether EU law requirements relating to an independent and impartial tribunal were met could be made subject to disciplinary proceedings and sanctions;
(iv) Only the Extraordinary Review and Public Affairs Chamber of the Polish Supreme Court was made competent to examine complaints and questions of law concerning the lack of independence of a court or judge; and
(v) Judges were required to make a written declaration indicating whether they belong to an association, a non-profit foundation or a political party, which would then be published online in the Public Information Bulletin of Poland.
The verdict: Poland fails to prevent further rule of law backsliding
With regard to the first four measures, the Court largely endorses the same arguments to establish their unlawfulness, finding infringements of Article 19 TEU, Article 47 of the Charter of Fundamental Rights of the EU, Article 267 TFEU and the principle of primacy of EU law.
First, the Court rules that, although the organisation of justice is a Member State’s own competence, Member States must comply with EU law when exercising that competence. This goes in particular for the obligations arising from Article 2 TEU, which comprises the value of the rule of law. More specifically, Member States are required to prevent any regression of their laws on the organisation of justice, by refraining from adopting rules that undermine the independence of judges. The latter obligation cannot be disregarded by relying on provisions of national law, including constitutional law or case law.
Second, the Court reiterates that the Disciplinary Chamber does not satisfy the requirement of independence and impartiality. The Court recalls that the guarantees of independence and impartiality required under EU law presuppose rules, in particular with regard to the composition of the body concerned and the appointment, length of services, and the grounds for withdrawal and dismissal of its members. Such rules must dispel any reasonable doubt as to the imperviousness of that body to external factors and its neutrality with regard to the interests before it.
Third, the mere prospect for judges of running the risk of being prosecuted, seeing their remuneration reduced, or being forced to be retired early for applying EU law, clearly undermines their independence. These elements give rise to reasonable doubt as to the imperviousness of that body to the direct of indirect influence of the Polish legislature and executive and its neutrality. The Court holds that this is “likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire […]”.
Fourth, the Court finds that the disciplinary regime applicable to judges infringes EU Law. Due to the relatively broad and imprecise nature of the adopted Polish provisions, their application could lead to judges being penalised not only for assessing whether the EU independence and impartiality requirements are met; but also for referring questions for preliminary ruling under Article 267 TFEU. These provisions infringe the guarantees of access to an independent and impartial tribunal.
Fifth, the fact that only the Extraordinary Review and Public Affairs Chamber, to the exclusion of any other court, is competent to verify whether the principle of effective judicial protection is respected, infringes EU law. Compliance with this principle must be guaranteed before all national courts in all areas of application of EU law. This monopoly of review, combined with the aforementioned disciplinary regime, further weakens the fundamental right to effective judicial protection.
Finally, with regard to the written declarations, the Court holds that these provisions infringe upon the right to respect for private life and the right or protection of personal data as well as upon the General Data Protection Regulation since this information could reveal their religious, political or philosophical beliefs. The measure is inappropriate to achieve the alleged aim of strengthening the impartiality of judges. That the information is placed online is, moreover, liable to expose judges to undue stigmatisation.
Final remark
The judgment demonstrates again the importance of the independence of the judiciary for upholding the rule of law in our democratic societies. It also illustrates how EU law can be invoked to counter Member State initiatives seeking to tamper with the independence of their courts in a bid to limit judicial review of their action and inaction. State action and inaction should indeed not be excluded from judicial review. It is of vital importance that citizens and undertakings can rely on independent courts in their disputes with public authorities.
For further information about this case and/or for general legal advice relating to the rule of law, please contact Pierre de Bandt and Raluca Gherghinaru.