Another judicial reform in Poland, another blow from the EU Court. The European justice has ruled this Tuesday against the rule that granted the Polish Minister of Justice the power to place judges almost at will in the courts in charge of solving the main criminal cases. Those elected by the minister, who also holds the position of attorney general, also assume the task of “disciplinary agent”, whose mission is to monitor the work of ordinary court judges.
The Grand Chamber of the Court of Justice of the EU has ruled that “such power cannot be considered [del ministro] is compatible with the obligation to comply with the requirement of independence ”. The verdict, which resolves a preliminary ruling by the Warsaw Regional Court in relation to seven pending criminal cases, makes even more unsustainable the judicial reforms undertaken by the Polish Government and which have been denounced time and again by the European Commission.
In October, the EU Court already sentenced Poland, at the request of the Commission, to a daily fine of one million euros for failing to preventively paralyze the activity of the disciplinary chamber of the Supreme Court, a body that, according to Brussels , also undermines the independence of Polish judges.
This Tuesday’s ruling places the Mateusz Morawiecki government once again faced with the dilemma of abiding by European jurisprudence or facing a new clash with the European Commission that would endanger the receipt of multimillion-dollar European funds. The confrontation is further soured by a recent ruling by the Polish Constitutional Court which, in response to a consultation from Morawiecki, ruled that the articles of the EU Treaty invoked by the Commission to attack the judicial reforms are incompatible with the Magna Carta. Polish.
Warsaw accuses the Commission of interference in the Polish judicial order, which is part of its national sovereignty. But it is some Polish magistrates, who fear for their independence, who are rebelling against Morawiecki’s reforms through prejudicial consultations with the European court. In which it was resolved this Tuesday, it was questioned whether the rule that gives the Minister of Justice the power to assign judges on secondment to a higher court and dismiss them when he wishes is compatible with Article 19 of the EU Treaty (which requires effective judicial protection) and with the European directive on the presumption of innocence.
The European Court concludes that the Polish rule is incompatible with both the Treaty and the directive. Community judges acknowledge that the norm provides a safeguard, by making the appointment of the judge on secondment subject to acceptance by the court of destination. But they point out that the minister has excessive discretion because the criteria for appointing the chosen one are secret. And it can also be terminated at any time without having to justify the reason.
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The sentence also recalls that the minister acts as attorney general, which also gives him power over the prosecution. And the judges appointed by the minister are in charge of instructing disciplinary procedures against other magistrates. An accumulation of positions appointed or supervised by the executive that, according to the European ruling, “may raise legitimate doubts in the minds of the defendants regarding the impermeability of the other members of the prosecuting bodies in question against external elements.”
The ruling grants more ammunition to the European Commission in its battle to preserve the independence of the Polish judicial system. The executive chaired by Ursula von der Leyen maintains, for the moment, blocked the approval of the national recovery plan presented by the Morawiecki government, which will give Poland access to 36,000 million euros from the European recovery fund.
Since January 1, Brussels also has a regulation on conditionality of all funds (including structural and agricultural) that allows suspending payments to those countries where the fragility of the rule of law endangers the management of the resources of the community budget. Von der Leyen is awaiting a ruling from the European Court on an appeal by Poland and Hungary against this regulation. But if the community judges reject the appeal, the Commission will be able to use that regulation to freeze, if necessary, financial flows on which public investment in Poland depends to a great extent.
The Commission trusts that the Morawiecki government will commit to abide by the European judgments despite the opinion of the Polish Constitutional Court. This commitment would allow the approval of the recovery plan and the release of the funds, always subject to the fulfillment of certain milestones that will include, among other measures, the dismantling of the Supreme Court’s disciplinary chamber and the reversal of the judicial reforms rejected by the EU. .