On January 24th, 2020 the European Commission applied to the European Court of Justice for the imposition of interim measures against the Republic of Poland. This request came within the context of the proceedings for an infringement of Articles 19 (1) TEU and 267 TFEU. In essence, by creating a politically controlled disciplinary chamber for the judges of the Supreme Court, the Polish legislation allegedly fails to guarantee the rights of defense of the judges under disciplinary proceedings and limits the Supreme Court’s right to refer question for preliminary rulings. The goal of this contribution is to give a brief overview of the factual and legal background of the dispute and to analyse the principle of the rule of law within the European architecture and the justifications brought forward by the Polish government.
Ever since the introduction of the controversial Law on the Supreme Court on April 3rd, 2018, the European institutions and Poland have been locked into a dispute which culminated in the European Commission triggering the procedure provided for in Article 7 TEU, which may culminate in the suspension of the voting rights of the representative of the Member State in the Council. The law imposed to the judges of the Supreme Court to retire at the age of 65, unless granted an authorisation by the President of the Republic, de facto allowing the ruling party, Law and Justice (PiS), to ensure that only judges aligned with the position of the government would be allowed to keep their position. The Polish government has further escalated the dispute by modifying the law on the Organisation of the Courts by allowing the Minister of Justice to nominate the members of the disciplinary chamber for ordinary judges and for the judges of lower courts, effectively putting the entire judicial system under the direct control of the executive branch.
Legal background and jurisprudence of the Court
Interim measures are based on article 279 TFEU which states that: “The Court of Justice of the European Union may in any cases before it prescribe any necessary interim measures” and by articles 160-166 of the Rules of Procedure of the Court. Although not unprecedented, these measures had been “tested” by the Court for the first time only one year earlier against Poland within the controversy regarding the lodging of wood in the forest of Białowieża. On the other hand, a similar case had been brought against Hungary, which had enacted a similar law. That proceeding, however, had been brought for a violation of Directive 2000/78, asserting that the judges, considered as “workers” for the purposes of the Directive, had been discriminated against due to their age. Hardly a comparable approach with the one taken against Poland.
The rule of law in Europe
The European Commission has defined the rule of law as a system where “all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts”. The rule of law is at the center of the EU legal system: article 2 of the TEU describes it as one of the foundations of the Union, the Court has repeatedly held that: “the EU is a union based on the rule of law”. However, there is disagreement on whether the rule of law is merely a legal standard to which the Member States have agreed upon, or if it is the essence or, even, the very purpose of the Union, through which the institutions may seek to strengthen their own legitimisation.The EU, however, has intervened rarely in the constitutional matters of Member States. In 2000, for example, the EU did not act directly against Austria for the involvement in the government of the xenophobic FPÖ, but pushed the Member States to retaliate diplomatically against Austria with little success. The subsequent approach taken by the Commission against Hungary, Romania, Greece, Italy and France, on the other hand, clearly endorsed the view which sees the rule of law as the essence of the European project. The successful enforcement of the rule of law within the context of this proceeding, therefore, will likely have an impact on the role of the rule of law in the EU framework.
The justifications of the Polish government
On March 7th, 2018 the Polish government published a White Paper  seeking to explain the need for judicial reforms. The justifications brought forward relate to i) efficiency of proceedings and to fight the “peculiar bureaucratic corporate culture which has emerged in the Polish administration of justice” ii) the existence of an imbalance of powers, iii) the failure to account for the communist past of judges. Whereas the government highlights that: “subordinating the judiciary to other branches of government cannot be a solution to all the problems described” it does little to hide that one of the objectives of the law must be that of relieving of their duties the judges which have been involved in the administration of justice during the Communist period. This should actually guarantee the rule of law because: “if [justice] is to be exercised by people who were entangled in a dishonorable service to totalitarian or authoritarian systems and did not guard the law but abused it to persecute human rights and civil liberties, it negatively affects the public trust in the judiciary – and thus the rule of law itself”.
The proceedings brought forward by the Commission underline the importance attached by the European institutions to this principle. For better or worse any decision of the Court of Justice will constitute a significant precedent in the matter and will define the power of the EU to challenge internal legislation falling within the exclusive competence of Member States for the violation of general principles of EU law.
Giulio Preti is an LL.M. student at King’s College London, specialising in Competition Law.