The European court has rejected the request to consider pre-judicial questions on disciplinary procedures in place in Poland as beyond its remit.
The European Court of Justice (ECJ) has rejected requests to consider pre-judicial questions filed by two Polish judges. The judges had asked the ECJ to rule whether the recently introduced disciplinary procedures on judges meant that they could be disciplined for their actual rulings in cases. However, the ECJ also ruled that judges may not be disciplined for filing such questions.
The prejudicial questions asked by judges from Warsaw and Łódz were rejected by the ECJ on the grounds that they are not connected in any way with European law. The remit of the ECJ is to rule on matters of European and not domestic law. The decision was in line with arguments presented to the ECJ by the Polish government.
The decision to reject the prejudicial questions from Polish judges does not in any way affect the case filed by the European Commission with regard to the Disciplinary Chamber of the Supreme Court. That action is still in process and involves a potential suspension of the work of the Disciplinary Chamber.
It is too early to determine if the decision to reject the two prejudicial questions represents a softening of the ECJ’s course with regard to judicial reform in Poland. The ECJ as well as other European institutions are often accused of widening their remit beyond the competences granted to them in EU treaties. This is of concern to many member states, not just Poland.
The dispute over disciplinary procedures rooted in the fight over judicial reform
The disciplinary system which has been introduced in Poland is under fire from the EC and from domestic judges and political opposition for allegedly limiting judicial autonomy. The judges of the Supreme Courts itself have ruled that the Disciplinary Chamber does not constitute an independent court because the members of it were selected by the National Judicial Council (KRS) which has been elected by Parliament.
The majority of Supreme Court judges and the EC argue that most of the members of the KRS should be elected by the judges themselves and that electoing the majority of the KRS by Parliament breaches the constitutional guarantees of the independence of the judiciary and independence of judges.
However, the Polish constitution does not stipulate how members of the KRS should be elected, though it does guarantee judges independence. And the Supreme Court has no role for adjudicating constitutional matters. Those competences are reserved for the constitutional court.
The ECJ has been asked by the EC to suspend the work of the Disciplinary Chamber of the Supreme Court as it considers that the KRS reform is a breach of the principle of judicial independence. However, many EU member states already have legislatures participating in the selection of the judiciary for key functions, a fact the Polish government has been accentuating in its defence of the country’s ongoing judicial reform.
The institution of the new disciplinary system has led to conflict between the government and large sections of the judiciary. Judges argue that they could be disciplined for making rulings the government does not like. The ruling Law and Justice (PiS) on the other hand accuses many judges of indulging in political campaigns against the ongoing judicial reform.
PiS pledged itself to reform the judiciary to root out incompetence, cronyism and corruption from the system. In order to do that it has changed the way the KRS is elected (previously most members were elected from among the senior judiciary) and created a new disciplinary chamber within the Supreme Court. The members of that disciplinary chamber were nominated by the President on recommendation by the KRS.
The ruling party also tried to change to make radical changes in the membership of the Supreme Court via lowering the retirement age for judges. Those changes would have included the retirement of the present chief justice of the Supreme Court Małgorzata Gersdorf. This was stopped by an ECJ ruling and the government retreated on the measure.