Polish judicial bill intended to unlock EU funds declared unconstitutional by top court

Poland’s Constitutional Tribunal (TK) has ruled that changes to the disciplinary system for judges proposed by the government and approved by parliament earlier this year with the aim of unlocking frozen EU funds are unconstitutional.

The European Commission has been blocking billions of euros from the bloc’s post-pandemic recovery due to its concerns over the rule of law in Poland. In 2022, it agreed on a series of “milestones” with the Polish government that had to be met before the money was transferred.

Among those were requirements to ensure the independence of Poland’s judiciary, in particular by withdrawing the tough disciplinary system for judges introduced by the Law and Justice (PiS) government (which is this week being replaced by a new administration led by Donald Tusk).

In a bid to meet Brussels’s demands, Poland’s parliament in July 2022 adopted a law, initially proposed by President Andrzej Duda, that replaced the disciplinary chamber of the Supreme Court with a new body known as the professional responsibility chamber

The European Commission, however, stipulated that closing down the disciplinary chamber was insufficient. It also insisted that Polish judges should have the right to challenge their colleagues’ status or decisions without being subject to disciplinary action.

The PiS government entered further negotiations with the commission and, in December that year, announced that they had reached a compromise.

It sought to implement that compromise through a bill, passed by parliament in February 2023, transferring the disciplinary procedure for judges from the professional responsibility chamber to Poland’s Supreme Administrative Court (NSA), a separate entity from the Supreme Court.

The legislation also extended the scope of the so-called “test of independence and impartiality” of judges, a procedure established by Duda’s earlier bill that gives parties in legal cases the ability to request that a court examine objections to a particular judge.

According to the changes in the February 2023 legislation, the test could be initiated not only by a party to the proceedings but also by a court itself.

However, the bill was met with a hostile response from the Supreme Court – whose spokesman called it “unconstitutional on many levels” – and also the justice minister, who rebelled against his government colleagues by opposing the legislation, which he said was “dictated by Brussels” and “contrary to the Polish constitution”.

Although Duda referred the bill to the TK in February, hearings on the case were repeatedly pushed back amid a rebellion among some of the tribunal’s judges, who argue that the term of the TK’s president, Julia Przyłębsa, expired last year. She and PiS deny that.

The TK finally issued its ruling on the case yesterday, finding important parts of the legislation to be unconstitutional.

In a justification for their decision, judge Bartłomiej Sochański wrote that the test of independence and impartiality was “already unworkable in principle” and that the new bill now sought to expand it even further.

“The mutual verification by judges of the correctness of their appointments through judicial proceedings is a denial of the principle of independence and a serious violation of the powers of the head of state”, he added. “The court is unaware of any examples of similar national legislation in European countries.”

The TK also found that jurisdiction over disciplinary cases should rest with the Supreme Court, not the Supreme Administrative Court.

The ruling was welcomed by Jakub Jaraczewski, a rule-of-law expert at Democracy Reporting International, a Berlin-based NGO.

“It was a bad law that was correctly found to be unconstitutional by a broken tribunal for wrong reasons,” he wrote, referring to the fact that the TK itself has been found to be illegitimate in its current form by court rulings.

“The law was pushed by PiS allegedly to satisfy the European Commission rule of law recovery fund milestones,” added Jaraczewski. “But in their rush, the ruling camp stepped on the toes of President Duda and [justice minister] Ziobro, and both decided to make life harder for PiS.”

PiS, however, lost its parliamentary majority at October’s elections and is this week being replaced by a new government led by Donald Tusk. He has pledged to improve relations with Brussels, restore the rule of law, and unlock Poland’s frozen funds.