The European Commission launched a new infringement procedure against Poland Wednesday over a law beefing up the country’s rules on penalizing judges that it says “undermines” judicial independence.
The legislation — which the opposition calls the “muzzle law” — can be used to reprimand judges who complicate the functioning of the justice system or who call into question how fellow judges were appointed.
The Commission said that the law, which is part of sweeping and controversial judicial changes brought in by the ruling Law and Justice (PiS) party, broadens the notion of a disciplinary offense, making it a tool of political control and prevents Polish courts from fulfilling their obligation to apply EU law.
“The new law on the judiciary undermines the judicial independence of Polish judges and is incompatible with the primacy of EU law,” Věra Jourová, vice president of the European Commission, said on Wednesday. “Moreover, the new law 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 [EU] Court of Justice.”
The law — which entered into force on February 20 — is a direct response to a November ruling from the Court of Justice of the EU. It said Polish courts will have to determine whether a newly created disciplinary chamber for judges and the National Council of the Judiciary, which is responsible for judicial appointments, are “sufficiently independent.”
The EU court’s ruling has led to some Polish courts questioning whether judges appointed by the new council are legitimate or not — something the government says will cause legal chaos but which its opponents say is a direct result of PiS’s efforts to put the judiciary under tighter political control.
As a result of another pending infringement procedure, the EU’s top court has also ordered the temporary suspension of the disciplinary chamber, a Polish body that penalizes judges, until the case is finalized.
Poland’s new law has been criticized by the country’s Supreme Court and Ombudsman and by several international bodies, including the Venice Commission of the Council of Europe and some U.S. congressional members.
The Polish government argues that EU institutions — both the Commission and the Court of Justice of the EU — don’t have competence to meddle in the country’s domestic judicial reforms.
Jourová said today that launching the procedure was a legal, not a political move. “This infringement case is based on solid legal ground, I didn’t want to have any doubt raised on this issue,” she said.
This is the fourth infringement procedure started by the Commission over Polish judiciary reforms. In two other procedures, the Court of Justice of the EU decided that Polish reforms violated EU law, and the third procedure is still pending.
Jourová also repeated her concerns about the organization of the Polish presidential election, planned for May 10, which the government intends to hold via postal vote even though relevant legislation is stalled in the opposition-controlled Senate.
She said the Commission will “monitor” the developments and there’s a “strong expectation that our member states will guarantee free and fair elections”.
“If I were the Polish citizen, I would have many questions because I would really like to have fair access to the voting. I would like to see the candidates campaigning in a fair campaign time and I think these are the questions especially which should be asked on Polish territory,” she added.