The Advocate General of the Court of Justice of the European Union, Evgeni Tanchev, found this Thursday that the disciplinary regime imposed by Poland on judges in a chamber of the Supreme Court is contrary to Community law because it undermines the independence of the judiciary.
“A lack of independence or impartiality that undermines the judiciary’s confidence in those who may be tried cannot be tolerated,” said the European lawyer.
The findings of the Advocates General are not binding on the Luxembourg Court of Justice, although in the vast majority of cases their judgments follow the line set out in these opinions.
The European lawyer denies Warsaw’s allegations that the matter falls outside the jurisdiction of Community law and points out that disciplinary action should only be taken against judges in “the most serious cases of professional misconduct and not on the basis of the content of their decisions”. which usually include an interpretation of the law and the facts.
In December last year, the European Commission included this matter in a wider disciplinary file opened against the ultra-conservative Polish government to reform the judicial system in place since February last year, which Brussels sees as a risk to the EU’s values and principles.
With regard to the disciplinary regime, the community executive sees problems in empowering the Supreme Court’s disciplinary body, “whose independence and impartiality is not guaranteed,” to take action that directly affects judges and the way in which they are judged which they carry out their duties.
The system in question does not guarantee the independence or impartiality of the chamber examining the cases and is composed only of judges appointed by the National Judicial Council, who in turn are appointed by a political decision of the Polish Parliament.
In fact, the TEU ruled against the disciplinary regime last year, and the Polish Supreme Court itself ruled that the disciplinary body does not meet the criteria for the independence of the judiciary set out in the laws of the European Union. Despite these statements, the board continues to act and poses a “risk of irreparable harm” to the judges, as Brussels claimed in an earlier appeal against Luxembourg.