EU Court advisor: Poland's handling of judges against EU law

A top European Union legal advisor argued that Poland's way of disciplining judges is contrary to EU law

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A top European Union legal advisor argued Thursday Poland's way of disciplining judges is contrary to EU law — a view the Polish government denounced as a politically motivated attack on the country's sovereignty.

Those were the latest developments in a nearly six-year dispute between the 27-nation bloc and Poland's conservative, populist ruling party, which has reshaped the country's justice system to give ruling authorities new powers over it.

The ruling party, Law and Justice claims it is seeking to reform an inefficient system and corrupt judges but critics see that as a pretext for seizing control over the courts.

Law and Justice in 2017 created a new body — the Disciplinary Chamber — at the Supreme Court with the power to discipline both top judges and ordinary court judges.

Many judges and lawyers allege the chamber is being used to pressure judges to issue rulings that favor the ruling authorities. To date, while the party has taken control over the high courts and key judicial bodies, many lower court judges continue to assert their independence. Some have issued rulings against government officials or interests.

Advocate General Evgeni Tanchev recommended that the European Court of Justice — the EU’s highest court — rule that the Disciplinary Chamber of the Supreme Court is not in line with EU law.

Tanchev argued that the disciplinary procedures against judges could create a “chilling effect” towards other judges. He noted that the content of judicial decisions can be treated as a disciplinary offense.

He said “the mere prospect that a national judge may be subject to disciplinary proceedings” strikes at “the very foundations of the Union itself.”

Such legal opinions are not legally binding but are often followed by the court. The judges of the EU court are beginning their deliberations in this case and a judgment is expected later this year.

In Warsaw Deputy Justice Minister Sebastian Kaleta denounced the opinion as “political theater of double standards" against Poland. He alleged that the “attack on Poland” was being led by an ally of ex-Prime Minister Donald Tusk, a sharp critic of the current government.

“We can see that the elite in Brussels are trying to interfere with the systemic sovereignty of Poland in the field of justice,” Kaleta told reporters.

The European Commission, which ensures that EU law is respected by the bloc's 27 nations, brought a complaint to the Court of Justice over the issue. It believes that independence and the impartiality of Poland's Disciplinary Chamber cannot be guaranteed.

The chamber is composed of judges selected by the National Council of the Judiciary, a body whose own members are chosen by parliament, where Law and Justice holds a majority.

The news of Tanchev's opinion arrived in Warsaw as lawyers and others gathered outside the Supreme Court as the Disciplinary Chamber was hearing the case of a judge.

Michal Wawrykiewicz, a lawyer with Free Courts, a group fighting for judicial independence, delivered a message in English.

“Dear judges of the European Court of Justice, hear the voices of Polish lawyers, citizens, who are horrified by the destruction of Poland’s rule of law,” Wawrykiewicz said. “We are doing everything what is in our power. Please help us restore European standards of an independent judiciary in Poland. Now it is your turn.”