EU: Andrew Allison discusses possibility of 'Polexit'
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As with the controversial disciplinary chamber at the Supreme Court in Warsaw, the highest EU court found that the seconding of judges in Poland was incompatible with the European legal norms.
For five years now, the ruling law and justice party (PiS) has been reorganising the country’s judicial system.
According to experts, Poland has no clear separation of powers, and the rule of law has been severely damaged.
Specifically, there are seven cases about whether judges who have been transferred from the government, i.e. delegated judges in Poland, can administer justice independently.
A secondment is a type of promotion; If, for example, a judge is transferred from the Warsaw Regional Court to a higher-order court, there is nothing to complain about.
Such a promotion, however, comes from the Minister of Justice. Moreover, it is a practice that existed even before the PiS dismantled the judiciary.
Such secondments are not limited in time and do not require a detailed justification.
A judge can also be reassigned at any time – by a simple decision by the Justice Minister.
Jakub Jaraczewski, a legal scholar at Adam Mickiewicz University in Poznan, tells WELT: “The role of the Minister of Justice is crucial.”
In the course of the downsizing of the judiciary, the Polish Minister of Justice was given power unparalleled in the EU.
This means that if a judge does not decide in the interests of the public prosecutor’s office, he may decide against the interests of the person responsible for his promotion or dismissal – against the Minister of Justice, who is also the Attorney General.
The CJEU judges in the Grand Chamber do not see any guarantee of judicial independence for the duration of the secondment.
According to the judgment, it cannot be ruled out that this secondment system could be politically abused and “used to control the content of judicial decisions”.
In this context, the Polish government did not implement a judgment on the disciplinary body and an interim order.
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It is breaking EU law every day – which is why the ECJ imposed financial sanctions on Poland in October.
In October, Warsaw escalated the judicial dispute with Brussels. The Polish Constitutional Court stated that substantial parts of the EU treaties were not in accordance with Polish law, including Article 19, which establishes the authority of the ECJ.
Experts call this a “legal Polexit”, Poland’s departure from the European legal system.
Janusz Kowalski, a member of the governing coalition, provided a foretaste for this.
He called the judgment “another example of an ‘illegal creation of law’ by the ECJ and ‘Union Eurocrats.’”
He wrote on Twitter: “Meaningless. Baseless. Should be thrown out.”
It doesn’t look like Warsaw would compile with the most recent ruling, which will likely cause concern in Brussels.
Additional reporting by Monika Pallenberg.
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