Polish practice of secondment of judges incompatible with European treaties – Advocate-General of top EU court

The advocate-general of the EU’s Court of Justice has said the Polish practice that allows the justice minister to second judges to higher courts – and to dismiss them at any moment – is incompatible with the bloc’s laws.

The damning opinion was published on Thursday by Michal Bobek, Advocate General with the Court of Justice of the European Union (ECJ), dealing another blow to Poland, which has been entangled in a legal battle with Brussels over the controversial reform of its judiciary.

The advocate-general provided his opinion on the Polish practice, which allows the country’s justice minister to second judges to higher courts, as well as to dismiss them at any moment. At the same time, the justice minister is also the country’s senior prosecutor.

“In circumstances such as those in the main proceedings, the minimum guarantees necessary to ensure the indispensable separation of powers between the executive and the judiciary are no longer present,” Bobek said in a statement, stressing that such a situation puts the independence of Poland’s courts in serious jeopardy.

The national rules at issue do not offer safeguards sufficient to inspire in the individuals, especially those subject to criminal proceedings, reasonable confidence that the judges sitting on the panel are not subject to external pressure and political influence, and have no vested interest in the outcome of the case.

Moreover, the situation “is further aggravated by the fact that the delegated judges may also hold the position of disciplinary agents attached to the Disciplinary Officer for Ordinary Court Judges,” which makes other judges even less independent.

“It is certainly not far-fetched to believe that judges may be reluctant to disagree with colleagues who, one day, may bring disciplinary proceedings against them,” Bobek stated.

While the ECJ is not obliged to follow the advice of its advocates-general, the court usually sticks to their opinion in its rulings.

Poland has been at odds with the EU for several years already over its reforms of the judiciary and state-run media. The controversial judiciary reform was signed into a law by the country’s President Andrzej Duda back in February 2020, despite being rejected by the country’s upper house of parliament. While Poland has insisted the reform was needed to make the judiciary more efficient, Brussels argued it breached courts’ principles of independence and violated the bloc’s laws.

In particular, Brussels targeted the controversial disciplinary mechanisms, established under the new legislation. Said mechanisms have effectively barred judges from questioning the government’s judicial reforms and from partaking in political life. Those daring to speak against the reforms, could face salary cuts, fines and could ultimately get fired altogether.

Late in March, the EU Commission took Poland to the ECJ over the provision, arguing that the legislation violated the bloc’s laws “by allowing the Disciplinary Chamber of the Supreme Court – the independence of which is not guaranteed – to take decisions which have a direct impact on judges.” Earlier this month, another ECJ advocate-general, Evgeni Tanchev, sided with Brussels, stating that the disciplinary mechanism for judges was against the bloc’s laws.

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