Polish law on judges violates EU treaty, says ECJ adviser

Opinion by top lawyer marks latest clash between 27-member bloc and Poland’s ruling nationalist coalition.

Poland's ruling coalition, which is headed by the PiS, has been at odds with the EU over the changes it has been introducing to the country's judiciary since it took power in late 2015 [File: Kacper Pempel/Reuters]

A Polish law that allows the justice minister to second judges to higher courts and end that secondment at any moment is incompatible with European Union treaties, according to an adviser to a top EU court.

Advocate General Michal Bobek’s assessment on Thursday marks another blow to the eurosceptic ruling coalition in Poland, headed by the Law and Justice (PiS) party, which has been at odds with the EU over its judiciary measures since it took power in 2015.

The Luxembourg-based European Court of Justice (ECJ) usually, though not always, follows opinions issued by its advocates general in its rulings.

“The Advocate General concludes that, in circumstances such as those in the main proceedings, the minimum guarantees necessary to ensure the indispensable separation of powers between the executive and the judiciary are no longer present,” Bobek said in a statement (PDF).

“The national rules at issue do not offer safeguards sufficient to inspire in the individuals, especially those subject to criminal proceedings, reasonable confidence that the judges sitting on the panel are not subject to external pressure and political influence, and have no vested interest in the outcome of the case.”

Poland’s nationalist government has defended its moves to reshape the country’s judiciary, saying it is seeking to reform an inefficient and corrupt system.

Critics, however, see that as a pretext for the party seizing control of the courts.

Regarding a separate case, another ECJ advocate general said two weeks ago that the court should rule that Poland’s measures to discipline judges contradict the bloc’s laws, ahead of a final decision due in months.

In 2017, Poland’s government created the Disciplinary Chamber, a body at the country’s Supreme Court with the power to discipline judges, including those of the lower courts.

Many Polish judges fear the chamber is a tool to pressure them to issue rulings that favour the authorities.

The chamber is composed of judges selected by the National Council of the Judiciary, whose members are chosen by the parliament, where PiS holds a majority.

In his opinion issued on May 6, Evgeni Tanchev also said Poland’s broad new definition of disciplinary offences had a “chilling effect” among judges by weakening their protections and independence.

ECJ judges will begin deliberations; a judgment is expected later this year.

The European Commission, which ensures that EU law is respected by the member states, brought a complaint to the ECJ over the issue.

It believes that independence and the impartiality of the Disciplinary Chamber cannot be guaranteed.

The ECJ has already ordered the suspension of the Disciplinary Chamber pending a final ruling on whether it offers sufficient guarantees of judicial independence.

However, the chamber has continued to work despite the ruling.

Source: Al Jazeera and news agencies