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EU court rules against Poland in judiciary row

November 16, 2021

The European Court of Justice ruled that powers wielded by the Polish justice minister are against the EU law in the most recent clash with Warsaw over judicial independence in Poland.

A man holds up a sign saying 'Polish people are with judges' during a protest in Warsaw
Many Poles oppose the government's judicial reformsImage: Reuters/K. Pempel

The European Court of Justice  (ECJ) ruled on Tuesday that the ability of the Polish government to appoint and remove judges from trials is in violation of EU law.

According to reforms pushed through by Warsaw, Polish Justice Minister Zbigniew Ziobro has the power to move judges to higher courts — known as secondment — and, if he chooses, to end their temporary appointment without giving reason or recourse.

"During the period of those judges' secondment, they are not provided with the guarantees and the independence which all judges should normally enjoy in a state governed by the rule of law," the top EU court said in a statement.

The decision comes just weeks after another case on the rule of law in Poland saw the ECJ fine Warsaw €1 million ($1.14 million) a day.

Is €1 million a day a fair penalty?

Challenge to judicial independence

The ECJ took on the case after a Polish court questioned the government's ability to intervene and decide which judges sit on panels for criminal cases.

The EU's top court pointed to the lack of legal criteria for the decisions taken by the justice minister. Because of this gap, the necessary guarantees against the risk of political control over judicial decisions are missing, the judges ruled. 

This blending of judicial and executive power challenges the independence of the judicial system, according to the Luxembourg-based court.

The ECJ said that the risk of bias from appointed judges undermines the presumption of innocence of the defendants they are judging.

Warsaw and Brussels at loggerheads

Tuesday's decision is the latest escalation in an ongoing legal battle between the EU and Poland over whose law has primacy.

Europe's next domino: Will Polexit follow Brexit?

The European Parliament's main political groups wrote to the European Commission jointly requesting billions of Euros in recovery earmarked for Poland be frozen until it can respect judicial independence within Poland and EU law. 

Only the far right and euroskeptics did not sign but the groups that did represent over 75% of the members of the European Parliament.

The ECJ imposed a hefty fine on Warsaw after its own constitutional tribunal ruled that Polish law takes precedence over EU law.

Poland's conservative government used this as justification to ignore calls from the EU to abolish a disciplinary chamber  for judges on the Supreme Court. Critics say the body allows the government to dismiss judges on political grounds.

Poland has vowed not to pay the fine. The European Court of Human Rights — which is not part of the EU — also ruled last week that Warsaw must compensate judges who said they had been denied a fair nominating process. The court also questioned the independence of Poland's judicial system.

The court's decision comes as the EU and Poland try to form a united front against Belarus over the migrant crisis at the Belarus-Poland border.

ab/dj (dpa, Reuters)