Frans Timmermans, the EC’s VP, has succeeded in persuading the EC to take Poland to the ECJ over disciplinary measures for judges.

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The EC has accepted Frans Timmermans initiative of taking Poland to the ECJ over the country enforcing new disciplinary procedures for judges. The only commissioner to object was Gunther Oettinger who argued that this should not be done just ahead of the elections due in Poland on Sunday 13 October.



On 3 April of this year the EC had begun the infringements of the rule of law procedure against Poland for undermining the independence of judges from political influence. The EC objected in particular to the fact that new disciplinary procedures envisaged the possibility of disciplining judges for court verdicts.



It also objected to the independence and neutrality of the newly created Disciplinary Chamber of the Supreme Court, the body responsible for taking decisions on disciplinary cases brought before it. The Disciplinary Chamber is composed solely of members from the National Judicial Council (KRS), which is newly elected by the Polish Parliament.



Polish government position The present Polish government has reformed the judicial system by introducing a Disciplinary Chamber inside the Supreme Court and by having the National Judicial Council (KRS) elected by Parliament. These measures have been introduced to bring greater accountability to the judiciary.



The Polish government has argued that the judiciary in Poland has not been reformed since communist times and that there are still judges who presided during Martial law in 1980 in situ. It also argues that the reforms introduced are in line with many other EU states in which the government and the legislature have influence over judicial procedures and appointments in line with the principle of checks and balances between the judicial, executive and judicial branches of government.

The dispute between the EC and Poland over judicial reform continues. The EC seems to have given up on using Article 7 of the Lisbon Treaty as the stick to beat Poland with, as it requires unanimity among the EU member states. So sanctions against Poland are, for the time being, out of the question.



The ECJ is now the preferred route. A route which has already worked with regard to overturning some of the changes made in the legislation on the Supreme Court.



However, the EC is still pursuing attempts to link compliance with the rule of law to the payments of EU funds to member states. This is to be done by creating a monitoring mechanism that would assess rule of law compliance and would allow the EC to freeze funds if that compliance was deemed to be unsatisfactory.



In this way the need to apply the long and complicated process envisaged in Article 7 of the Lisbon Treaty would be circumvented. This will not be easy for member states to agree, although it can be done by a qualified majority vote rather than using the principle of unanimity that Article 7 imposes.



Poland will continue to argue that it has a right to reform the judiciary as the organisation of the judiciary is not covered in EU treaties. But the trend for both the EC and the EU courts is to extend their powers in relation to imposing common standards in an increasing number of walks of life.



As for disciplinary procedures themselves, the consensus in Poland is that they are needed to sanction judges for when they are guilty of malpractice, breaking the law or are found to have engaged in corruption or partisan political activity. The fear, however, is that they may be punished for issuing verdicts government or Parliament does not like.