The European Commission is to refer Poland to the Court of Justice of the European Union (CJEU) over the legislation on the country’s judiciary that came into effect on 14 February 2020.
The commission has also decided to ask the court to order interim measures until it has issued a final judgment in the case, “so as to prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order”.
Poland has faced significant criticism over its treatment of the judiciary, with European judges last year joining their colleagues in the country to march in support outside Poland’s Supreme Court.
Violating EU law
The EU’s executive believes the new Polish law undermines the independence of Polish judges and is incompatible with the primacy of EU law.
It says the law prevents Polish courts from directly applying certain provisions of EU law protecting judicial independence, and from requesting preliminary rulings on such questions from the CJEU.
In addition, the commission believes Poland is violating EU law by allowing the Disciplinary Chamber of the Supreme Court – the independence of which it says is not guaranteed – to take decisions which have a direct impact on judges and the way they exercise their function.
“These matters include cases of the lifting of immunity of judges with a view to bringing criminal proceedings against them or detain them, and the consequent temporary suspension from office and the reduction of their salary,” the commission says.
It argues that the prospect of judges having to face proceedings before a body whose independence is not guaranteed creates a “chilling effect”, which can affect their own independence.
The commission has asked the CJEU, as an interim measure, to suspend the powers of this body relating to a number of key issues, and to suspend decisions already taken by it.
The CJEU had already ruled in April 2020 that Poland must immediately suspend the powers of the Disciplinary Chamber of the Supreme Court with regard to disciplinary cases concerning judges.
Previous rulings by the court had forced Poland to remove parts of controversial legislation relating to the judiciary.