Europe claims Polish judges can be disciplined for rulings and are not insulated from political control

Poland is being taken to the EU’s highest court over a law said to violate the principle of judicial independence.

Just three days before parliamentary elections on Sunday, the European commission announced it was referring Poland to the European court of justice over its disciplinary regime for Polish judges.

Under the law Polish judges can be investigated and sanctioned for their court rulings. Announcing the decision to go to court, the European commission said the law did not “guarantee the independence and impartiality of the disciplinary chamber of the supreme court”. It added: “Judges are not insulated from political control and thus judicial independence is violated.”

The commission has asked the Luxembourg court to fast-track the case, in order to speed up a ruling, which can take two to three years in some cases.

The latest referral opens a new front with Poland’s nationalist Law and Justice government that is already embroiled in an intractable dispute with the rest of the EU over the rule of law.

The Law and Justice (PiS) party is expected to easily win the most votes in Sunday’s election, but it is unclear whether the party will be able to form a government again, either by itself or in coalition, or be replaced by a broad opposition coalition.

Since the nationalists came to power in 2015, the government has been taken to court several times, as civil society groups have criticised an erosion of democratic values. In a landmark decision in July the European court ruled that a decision to lower the retirement age was unlawful. PiS had attempted to force the departure of 40% of Polish judges by introducing an abrupt change to the retirement age.

Since the EU launched its sanctions procedure for violations of the rule of law against Poland in 2016, progress has been slow.

The process allows Polish ministers to appear before their EU peers to explain Polish policies, such as tightening control over the judiciary. While France and Germany have been strongly critical of the Polish government’s increasing controls over the courts, EU member states as a whole have not reached any conclusion. Poland is very unlikely to face the ultimate sanction – losing voting rights – because of a mutual defence pact with Hungary, which is also in the dock over the rule of law.

Many EU governments hope clear verdicts from the ECJ will provide a way out of the current impasse with Poland over the rule of law.



