Who will protect Poland's judges if not the EU?

While we are focused on Brexit, the European Union has other crises on its hands. To give perspective to our all-consuming national debate, it might be useful to talk about the threat to the rule of law posed by populist governments in Poland and Hungary. 

There have been another couple of episodes in the saga regarding Poland’s treatment of its judges. The first was when the Advocate General of the Court of Justice of the European Union (CJEU) delivered his opinion in infringement proceedings brought by the European Commission against Poland. The commission’s action was based on two grounds: that the lowering of the retirement age of judges of the Supreme Court infringed the principle of irremovability of judges; and that measures granting the president of Poland discretion to extend the active mandate of certain of those judges infringed the principle of judicial independence.

The case was brought under two provisions, one of which was Article 19(1) of the Treaty of the European Union (TEU). The second sub-paragraph of Article 19(1) of the treaty states: ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered’. This will be the first time the CJEU will rule on compatibility with EU standards of member states’ actions concerning the organisation of their judicial systems (within the context of an infringement procedure, at any rate). The Advocate General concluded that Poland had failed to fulfil its obligations under Article 19(1) TEU in respect of the two grounds cited by the commission.

If you are wondering what business it is of the EU to meddle in the internal organisation of the judiciary of a member state, you need to know some of the background. Polish judges who are suspected of not being fully signed up to the government’s overall stance, whether towards the reorganisation of the judiciary or other policies, have been subjected to serious intimidation for months. The main kind is the use of disciplinary proceedings as harassment, but it is not the only one. There has been a billboard hate campaign; ruling-party politicians have called judges thieves; and those who speak up against the new system are barred from promotions or transfers. 

But most worryingly from the EU angle has been the allegation, as explicitly contained in the recent report from Amnesty International on the harassment of Polish judges, that ‘there are documented cases when disciplinary proceedings have been triggered upon some judges’ referral of judicial questions to the CJEU’.

As a result of this practice, on 3 April the commission launched a further infringement procedure to protect judges in Poland from political control. Part of the commission’s launch statement is worth quoting in full, because it shows that the EU has no option but to intervene:

[The] new disciplinary regime allows for judges to be subject to disciplinary proceedings for the content of their judicial decisions. This includes decisions to refer questions to the Court of Justice. As judges are not shielded from being exposed to disciplinary sanctions for exercising this right enshrined in Article 267 TFEU, the new regime creates a chilling effect for making use of this mechanism. The functioning of the preliminary reference mechanism – which is the backbone of the Union’s legal order – requires national courts to be free to refer to the European Court of Justice any question for a preliminary ruling that they consider necessary, at whatever stage of the proceedings.

That has not been the only effect of the Polish government’s assault on its judiciary. In July last year the CJEU issued a judgment on the consequences of this matter, allowing an Irish court to refuse the extradition of a person under a European Arrest Warrant to Poland if the Irish court had evidence that there was a real risk of breach of the fundamental right to a fair trial on account of deficiencies in the independence of Poland’s judiciary (Case C‑216/18 PPU). Meanwhile, the European Network of Councils for the Judiciary has taken the rare step of suspending its Polish member (as of September last year) for lack of independence from the government. 

I have not even begun with Hungary, which raises similar concerns. But it is clear that the Polish government is behaving in a way which undermines the legal order of the EU. If the EU does not take steps to protect its own legal order – echoes of the Brexit negotiations – it will cease to function.

In any case, who else will take action to protect the judges, and finally the citizens, of Poland, if not the EU?

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council