Opens an infringement process for questioning the primacy of European law and doubts the impartiality of the Court
Brussels continues to add to the pile of files on the table against Poland. One more to close the year. The European Commission has announced this Wednesday another infringement procedure against the Government of Mateusz Morawiecki for the judgments of the country’s Constitutional Court (of July 14 and October 7) that considered the provisions of the EU Treaties incompatible with the Polish Constitution , expressly questioning the primacy of European law.
The Commission considers that these judgments “violate the general principles of autonomy, primacy, effectiveness and uniform application of Union law and the binding effect of the judgments of the Court of Justice of the European Union”. Emphasizing, in particular, last summer’s ruling in which the highest Polish court denied the binding nature of the orders for interim measures issued by the EU Court of Justice to ensure ‘effective judicial review by a court independent and impartial established by law ”.
In the one that was known more than two months ago, the Community Executive recalled this Wednesday, the magistrates of that room directly ignored their obligations by considering unconstitutional “and therefore not having effects in the Polish legal system” the interpretation of the CJEU according to the which a national court would have the capacity to review the legality of the procedure followed to appoint judges and rule on any irregularity.
Government control
And black on white, Brussels once again insists on another of the root problems of its conflict with Warsaw: the control that the Government exercises over the country’s judicial system. “The Commission has serious doubts about the independence and impartiality of the Constitutional Court and considers that it no longer meets the requirements of a court previously established by law,” it was asserted forcefully. Although it is not new. The Commission has assumed this since 2017, when it launched the Article 7 procedure (that ‘nuclear button’ never pushed all the way down that could leave the country without the right to vote).
The European Court of Human Rights has also moved in that line recently. In a ruling issued on May 7, it considered that the process of appointment to the Constitutional Court of three judges in 2015 was “a violation of the fundamental norms that are an integral part of the establishment and operation of the constitutional review system in Poland.” A violation of judicial independence that also offered other examples for the European institutions, such as the election of the president and vice-president of the same court.
The infringement procedure opened this Wednesday gives the Polish Government two months to present contrary arguments in writing. And it is stacked on top of two others of the same administrative nature that were processed on April 3, 2019 and April 29, 2020. The first alleged that the new disciplinary regime for judges undermined their independence and did not provide guarantees to protect them. of political control. The second criticized various legislative acts and exceptional powers of the Ministry of Justice.
It paved the way for the Commission to bring Poland to the CJEU, demanding, among other matters, the elimination of the Disciplinary Chamber of the Supreme Court, which can rule on the lifting of judicial immunity, as well as in matters of employment, social security and retirement of magistrates, in addition to other types of provisions such as those that prevent judges from directly applying EU legislation “that protects judicial independence and referring preliminary decisions on such matters to the Court of Justice.” The high court of Luxembourg has consistently agreed with Brussels.
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