European Commission defends judicial independence, taking aim at Poland’s ‘muzzle law’

Today (31 March), the European Commission took further action to stem the erosion of judicial independence in Poland. Frustration has been mounting in the European Parliament and among Polish civil society organizations at the increasing stranglehold the PiS (Law and Justice) party has over the judicial system.

“The law on judicial powers is incompatible with fundamental provisions of the EU treaties,” said Justice Commissioner Didier Reynders. “The Commission believes that the law infringes the independence of the judiciary in Poland and is incompatible with the primacy of the law of the European Union.”

‘Muzzle Law’

The Commission argues that the law on the judiciary from 2019 prevents Polish courts from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the CJEU. This poses an existential question on the European Union which is based on law.

Renew Europe President Dacian Cioloş, who congratulated Commissioners Reynders and Jourová for their action, said: “The Polish government’s repeated attacks on the rule of law and the independence of the judiciary are unacceptable. Despite several rulings by the European Court of Justice and the Polish Supreme Court, the ‘Disciplinary Chamber’ of the Supreme Court continues to threaten the independence of Polish judges.  The Polish government knows it is acting against our fundamental laws, our treaties but it continues to do so. The infringement procedure announced by the European Commission against the ‘muzzle law’ is therefore necessary.”

Interim measures to prevent ‘irreparable harm’

The Commission has requested that the EU’s Court of Justice (CJEU) orders interim measures, with the aim of preventing irreparable harm being inflicted to judicial independence and the EU legal order. This includes suspending any decision of the disciplinary chamber on requests for the lifting of judicial immunity, as well as on matters of employment, social security and retirement of Supreme Court judges; suspension of decisions already taken on judicial immunity, and; any measures that stops Polish justices from carrying out their commitments to apply EU law and request direction from the CJEU.

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‘Long overdue’

Greens/EFA Group shadow rapporteur for Poland in the Civil Liberties, Terry Reintke MEP, welcomed the decision but expressed concern about the impact it has already had and the time it has taken to act:  “We welcome that finally, the Commission is taking action on the independence of the judiciary in Poland. But this referral to the Court of Justice is long overdue and isn’t enough to repair the damage done to democracy and the rule of law by the Polish government. The law the Commission has referred to the Court is just one of a barrage of bills designed to systematically strip the judiciary of any independence. Attacking the judiciary is contrary to European values as set out in the Treaties. There’s no time to wait around and refer the odd case to the Court, the Commission must be proactive and vigilant in defending the rule of law.” 

‘Chilling effect’ 

The European Commission considers that the Disciplinary Chamber of the Supreme Court, has had a ‘chilling effect’ on judges. There are now a number of instances of judges being punished directly or indirectly for performing their duties, as they are obliged to and to respect their commitments under European law, as well as under the Polish constitution. 

Reynders said: “Polish judges are at risk of being suspended from office and seeing their immunity lifted to allow criminal proceedings against them, or to detain them. While it is up to member states to decide whether they want to have a system of judicial immunity. Those decisions should be taken by an independent body. In Poland, the independence and impartiality of the Supreme Court’s Disciplinary Chamber is not guaranteed.”

European Commission Vice Presdient for Values and Transparency Věra Jourová said:

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