An infringement procedure initiated by the European Commission against Poland is completely groundless. The European Commission does not have the power to intervene in matters of the system of justice, as this area of legislation is the exclusive domain of the Member States of the European Union.
The European Commission is not entitled to question the act of 20 December 2019, passed by the Polish parliament and signed by the President of the Republic of Poland, amending the law on the system of common courts, the law on the Supreme Court and certain other acts, which guarantees constitutional order in the judiciary.
Recent rulings by the Constitutional Court have made it clear that judges cannot question the status of other judges. This is an unacceptable interference in the activities of the constitutional organs of the state and may lead to anarchy and legal chaos in Poland. A judge may not arbitrarily put himself above the legislative, the executive and President of the Republic of Poland.
The opinion of the European Commission is also based on the false thesis that the Act of 20 December 2019 limited the right of judges to submit questions for a preliminary ruling in the areas covered by EU law. In fact, there are no such restrictions anywhere in this law.
The reference by the European Commission to Art. 19 of the Treaty on the European Union is all the more unjustified as the German Constitutional Court made an opinion on this subject twice in 2009 and 2019. It stated that, despite the functioning of this provision, the organization of the judiciary was the sole competence of individual Member States.
The scope of obligations imposed on the Member States with regard to the organization of the judiciary cannot be arbitrarily extended by the rulings of the CJEU, as there is no democratic legitimacy for the Court of Justice to issue decisions in this area.
Report of the European Commission’s Rule of Law
Polemic elements for the analytical part of the report (the justice system)
1. The assessments in the European Commission’s Rule of Law Review Cycle – Chapter for Poland are
untrue. Legislative changes made in the Polish judicial system since 2017 have been aimed at ensuring
compliance of the Polish regulation with the values common to all EU Member States. Furthermore,
the judiciary reforms introduced into the Polish legal system are in line with the EU law.
2. The Commission expresses concerns about the Constitutional Tribunal , without specifying any
specific allegations and limiting itself to pointing out that the objections regarding the independence
and legality of the Constitutional Tribunal, raised by the Commission under the procedure under Art. 7
of the Treaty on European Union, have not yet been resolved. The demand of the EU institutions that
“the President and the Vice-President of the Constitutional Tribunal be elected in accordance with the
law” undoubtedly indicates that the dispute over this court is primarily personal, not systemic. De lege
lata , there are relevant legal regulations that guarantee the functioning of the Constitutional Tribunal
in accordance with the Constitution and EU law.
3. The EC’s comments with regard to the composition of the National Council of the Judiciary are a
sign of insufficient consideration of the implications of the judgments of the Court of Justice,
including in particular the analysis of the judgment of 19 November 2019 in joined cases C-585/18,
C-624/18 and C-625/18 (AK judgment) and ignoring the judgment of the Court of Justice of 9 July
2020 in case C-272/19 VQ v. Land Hessen, in which it was concluded that the numerical majority of
members elected by the legislature in the body participating in the process of appointing judges does
not violate the principle of separation of powers constituting the basis of a democratic state ruled by
law and is not inconsistent with the international and European standards applicable in this field.
4. Despite the critical assessment of the European Commission, the reform of the organizational structure
and scope of competence of the Supreme Court , under which two new chambers of this Court were
established: the Disciplinary Chamber and the Extraordinary Control and Public Affairs Chamber,
enables judicial supervision over the activities of common and military courts and deepens the sense
of social justice. The newly created chambers of the Supreme Court give the guarantees of
independence laid down in the case law of the Court of Justice.
5. It is not true that the influence of the executive powers over the judiciary has increased in Poland.
All judges of common courts, administrative courts and the Supreme Court are elected and appointed
in a procedure that guarantees their independence from the legislative and executive authorities. The
independence of the judges results not only from the procedure of their appointment, but above all
from the extensive system of constitutional guarantees which ensure that they adjudicate in a manner
completely free from external pressure, i.e. appointment for an indefinite period (Art. 179 of the
Constitution), irremovability (Art. 180 of the Constitution), immunity (Art. 181 of the Constitution),
obligation to remain apolitical (Art. 178 (3) of the Constitution). Judges of the Supreme Court and the
Supreme Administrative Court are prohibited from taking up additional employment, except for
employment as a research and teaching worker (Article 44 of the Act of December 8, 2017 on the
Supreme Court, Article 49 of the Act of July 25, 2002 – Law on the system of administrative courts).
6. The allegations of the Commission expressed in relation to the disciplinary system reform carried
out in 2019 are unfounded. In particular, in the context of the definition of a disciplinary offense, the
Act of 20 December 2019 details the existing provisions which defined a disciplinary tort only with
the use of vague, unspecified phrases. It is not true that judges in Poland may be held responsible for
the content of the decisions issued. A finding of a disciplinary offense, manifested in the issuance of a
specific decision by a judge, requires an obvious and gross offense against the law. Disciplinary
liability is caused not by the fact that a specific decision has been issued, but by the fact that a
qualified infringement of the law (obvious and gross) has been committed. The provision of art. 107 §
1 of the Act of 27 July 2001 – Law on the System of Ordinary Courts does not allow the judge to be
held responsible for the content of the judgment, and even less for making a preliminary question
pursuant to Art. 267 of the Treaty on the Functioning of the European Union. In terms of disciplinary
liability, the Act does not differ from the standards existing in other European countries, including
similar French and German solutions, where such behavior is subject to more extensive liability than
in this Act – i.e. criminal liability.
7. By introducing the principle of prohibiting the examination of the legality of the appointment of a
judge by the President of the Republic of Poland, the Act of 20 December 2019 strengthens the
guarantees of irremovability of a judge, and implements the judgment of the CJEU in the case of A.K.,
where it was confirmed that the appointment of judges by the President of the Republic of Poland,
including judges of the Supreme Court, cannot be subject to judicial review (point 133).
8. The European Commission’s critical remarks regarding the law-making process and the alleged use
of accelerated legislative procedures to adopt reforms are not true. The accelerated legislative path
may be used in the case of parliamentary legislative initiatives. Contrary to the position of the
European Commission, data from the Chancellery of the Sejm show that in relation to the laws passed,
the number of parliamentary legislative initiatives in the 7th term of the Sejm (2011-2015) was 241,
while in the 8th term of the Sejm (2015-2019) this number decreased to 184.