The conclusions of Advocate General Tanchev in the case between the Commission and Poland are of rare severity for Warsaw. The dispute over the “disciplinary board” of judges between the Commission and Poland will be settled next year by the EU Court of Justice. The opinion of Advocate General Yevgeny Tanchev, a Bulgarian, is straightforward: Polish law does not sufficiently guarantee the independence of Polish judges; the disciplinary sanctions envisaged by Polish law have a “dissuasive effect” on other national judges and violate, in this respect, the treaties of the Union. He also condemns the Polish attempt to prohibit Polish judges from putting a preliminary question to the CJEU, as provided for in the EU Functioning Treaty.
The Court is free not to follow this opinion, but it is rare, in practice, that the conclusions of the Advocate General are contradicted. How is the reform of the disciplinary council of judges problematic? In 2017, the Polish Parliament adopted a law establishing a new disciplinary chamber within the Polish Supreme Court. The composition of this disciplinary chamber lends itself to caution as it seems politicized and favorable to PiS, the ultraconservative party in power. The Brussels Commission is moved by it, begins a dialogue (deaf) with the Polish government. Nothing works. The Minister of Justice, Zbienew Ziobro, Europhobe, at the head of a small party even more ultra than the PiS, refuses even to go to Brussels to discuss it.
A war of judges at the highest level
However, this disciplinary chamber has the power to judge the judges of the Supreme Court, who are in the crosshairs of power. We are therefore witnessing a war of judges between former Supreme Court officials and the new disciplinary judges deemed to be closer to power. The conflict has gone very far. The Supreme Court ruled, on December 5, 2019 and January 15, 2020, that its disciplinary chamber did not meet the criteria (composition, scope of powers) to claim to be an independent tribunal within the meaning of both European and Polish law. The disciplinary chamber took it very badly and, as of February 4, 2020, it decided to suspend the first judge of the Supreme Court, with a reduction in his remuneration of around 40%.
Faced with this civil war of judges, the Brussels Commission asked, in summary proceedings, the Court of Justice of the EU to order Poland to take provisional measures and to put an end to the activities of this disciplinary chamber pending a stop on the bottom. On April 8, 2020, the CJEU responded favorably to this summary.
You cannot sanction a judge because his decisions are unpleasant
It is in this context that the Advocate General files his conclusions for the trial on the merits. Poland puts forward arguments. It considers that Article 19-1 of the Treaty on European Union authorizes the CJEU to interfere in disciplinary matters. And that it is therefore right that the disciplinary chamber does not apply European law. Prosecutor General Tanchev dismisses this argument on the grounds that all courts rule on questions relating to the application and interpretation of European law or the areas covered by this law.
The Commission considers that disciplinary measures taken against a judge can only be limited to the most serious cases of professional misconduct and not because of the decisions he renders. In short, a judge who no longer goes to work, or who is permanently intoxicated, would be liable to sanctions. But we cannot take sanctions against a judge because his decisions do not please. For the public prosecutor, the disciplinary sanction taken because of the content of a judicial decision creates “undoubtedly a dissuasive effect”, not only for the judge concerned but also with regard to all the other judges for their future decisions. Poland thus poses a disciplinary risk to its entire judiciary that is incompatible with the serenity and independence of judgment.
Too great a risk of arbitrariness
In addition, Polish law provides that the president of the disciplinary chamber has discretionary power to designate which disciplinary court is competent at first instance with regard to ordinary judges. Thus, he can choose at leisure, without explaining himself, who will judge the judge he intends to sanction. There is a damaging unpredictability here which suggests that we want to orient a judgment … For the prosecutor Tanchev, this discretionary power gives rise to too great a risk of manipulation and arbitrariness.
In addition, the Minister of Justice is granted the right to permanently maintain charges against the magistrates of the ordinary courts by the appointment of a disciplinary officer of the Ministry of Justice. It is also provided that the disciplinary council can take place in the absence of the accused magistrate or his lawyer. As much violation of the rights of the defense, according to the prosecutor Tanchev.
Poland is trying to dissuade its judges from making a preliminary ruling to the CJEU. They run the risk of disciplinary action in this case. This simple prospect runs up against the very basis of the procedure governed by Article 267 of the Treaty on the Functioning of the European Union. This reflects a desire to cut off the Polish legal order from the European legal order in which it is part. European Commissioner Reynders, responsible for Justice, keeps reminding Warsaw that every national judge is first and foremost a European judge and that in this there must be sincere cooperation from one country to another, since everything European is justiciable before a court of a Member State and the decisions enforceable on the continent.
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