On 14 January 2020, the European Commission requested that the Court of Justice of the European Union (CJEU) issue an interim order to halt all judicial activities by the Polish Supreme Court’s Disciplinary Chamber. This request is a part of the infringement procedure brought before the Court by the Commission against Poland (case C-791/19).
DRI’s Jakub Jaraczewski (@J_Jaraczewski) answers some questions following Tuesday’s events.
What is an interim measure?
Under the Article 279 of the Treaty on the Functioning of the European Union, the European Court of Justice can order an interim measure in any case before it, if necessary. The aim of these measures is to ensure the full effectiveness of the court’s final decision, including halting any activity that may be deemed illegal by its upcoming ruling. Interim measures are supposed to make sure that no damage is done while the proceedings are underway before the Court.
Have interim measures been used against Poland before?
Yes, with two cases being relevant here. In November 2017, interim measures were ordered in the case related to the deforestation of Białowieża forest by the Polish authorities when the Court ordered the government to halt the deforestation until a final judgement was passed. On the rule of law issues, in December 2018, the CJEU ordered the Polish government to suspend a law lowering the mandatory retirement age of judges. The Polish authorities complied with these interim measures.
Why is the European Commission acting now?
Several factors prompted action on Poland. Most worrying is a series of disciplinary proceedings against judges who attempted to implement the 19 November ruling by the CJEU concerning the independence of the Disciplinary Chamber. Another is the proposed “muzzle law” introduced by the government (see below). Lastly, Polish and international civil society, academia, lawyers and ordinary citizens ramped up the pressure on the government, culminating in the “March of 1000 black robes” on 11 January 2020, which featured judges from all over Europe protesting in solidarity with their Polish colleagues.
Is this request related to the “muzzle law”?
The “muzzle law” is a recent bill introduced by the Polish government that once more changes several laws related to the judiciary. It is widely seen as an assault on the independence of the judiciary and its effects include initiating disciplinary measures against judges who apply EU law. A report by the OSCE’s Office for Democratic Institutions and Human Rights states that the “muzzle law” is contrary to several international and regional standards to which Poland is committed.
The Commission’s interim measure request concerns an earlier pending case concerning the independence of the Disciplinary Chamber of the Polish Supreme Court and by extension, the National Council of Judiciary, which participated in appointing the Chamber’s judges. It does not relate directly to the “muzzle law”, but if the interim measure is issued, it would effectively halt the activities of the Disciplinary Chamber - the same chamber which would sanction judges if the “muzzle law” was implemented.
What are the implications of the Commission taking a tough stance?
The question of whether Reynders, Jourová and von der Leyen would take a stronger stance on the rule of law has been hanging in the air for some time. Some commentators suggested that the initial support from Poland’s ruling party PiS for the von der Leyen Commission, and the conciliatory language used by von der Leyen herself, would mean that the Commission is about to take a softer stance. Yesterday’s action shows that the Commission is willing to act decisively, at least when it comes to Poland. It remains to be seen if this will be the case for the rule of law issues in Hungary, Malta, Romania and Spain as well.
Interested in learning more about what the EU will do next?
Join us in Brussels on 22 January, where we will be talking about the rule of law in the EU with the Vice-President of the European Commission for Values and Transparency Věra Jourová, MEP Terry Reintke, Emmanuel Crabit, Director at Directorate Human Rights and Rule of Law, DG Justice and Consumers, European Commission, Ralph Kaessner from the European Council’s secretariat and Dr Joelle Grogan from the Middlesex University. You can register for the event, organised with the European Policy Centre, here: https://www.epc.eu/en/events/100078~2dfd70
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Photocredit: Grzegorz Żukowski/Flickr