‘Could this be a truce?’ EU ruling on Poland may point to future breakthrough – expert

EU: Expert discusses ‘long term challenge’ of rule of law

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The EU’s top court was asked to rule in a case brought before them on the independence of some “old” Polish judges who were appointed to the country’s Supreme Court under the Communist regime. The ECJ ruled “The mere fact that a judge was appointed at a time when that judge’s Member State was not a democratic regime does not affect the independence and impartiality of that judge.”

The case involved a ruling on three judges and their ability to themselves rule in a case between consumers and the Polish Bank Getin Noble Bank.

But as Poland has been locking horns with the EU Commission over the impartiality of its judicial system, the ECJ ruling prompted EU law experts to warn it may serve as a “truce” for newly appointed judges in Poland and their independence from the executory.

Steve Peers. Professor of EU Law, Human Rights Law & World Trade Law, at the University of Essex, asked: “Could the CJEU be offering a truce/off ramp for the Polish government?”

Professor of European Law Laurent Pech said: “For the first time, ECJ unfortunately fails to do its job properly and accepts to answer a preliminary ruling request from a manifestly irregularly appointed individual to Polish Supreme Court and ignores ECtHR case law in the process. Very poor.”

Jakub Jaraczewski, research coordinator at Democracy Reporting International and expert on the EU rule of law, said: “Three main points: a) CJEU refused to throw out the referral on grounds of it being submitted by a ‘new’ judge of the Supreme Court.

“A sign of Luxembourg refusing to flat out consider all ‘new’ judges as not independent just on the grounds of them being installed with the participation of the ‘new’ National Council of Judiciary. Not surprising.

“b) CJEU has found that the mere fact of a judge being appointed during the communist times does not mean that they’re not independent or impartial.

“This was rather obvious and expected, but it’s good to see it stated clearly by the Court.

“c) CJEU has also established that the fact that the Polish Constitutional Tribunal (in 2017, post-capture) found the ‘old’ National Council of Judiciary to be improperly composed does not lead to a lack of independence of ‘old’ judges.”

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Last October, the court condemned Warsaw for failing to comply with a ruling declaring the new disciplinary chamber for judges “incompatible” with EU law.

The case had been brought by the European Commission.

The Court ruled in favour of the Commission, stating the reorganisation of the judiciary could be “used to exercise political control over judicial decisions or to put pressure on judges with a view to influencing their decisions”.

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Mateusz Morawiecki, the Polish prime minister of the ruling PiS (Law and Justice) party, said in August that his government was ready to dissolve the controversial institution, without actually doing so.

He accused the EU of “creeping in” on Polish affairs and lamented in an interview with the Financial Times that the EU was putting “a gun to his head”.

The Commission says the disciplinary system allows for political meddling in the courts and hence violates the laws in the 27-nation EU, as well as in Poland, that establish judicial independence.

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