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FOR Communication 10/2019: Polish rule of law before the European Court of Justice: reflections after the hearing on the Disciplinary Chamber and the new National Council of the Judiciary [NCJ]

  • On 19 March, a hearing took place at the EU Court of Justice [EUCJ] in another case concerning changes in the Polish judiciary
  • The judges in Luxembourg examined whether the Disciplinary Chamber is an independent court within the meaning of EU law, as it was appointed in its entirety by the new National Council of the Judiciary [NCJ] chosen by politicians
  • The reasoning in favour of considering that the Disciplinary Chamber is not a 'court' was supported by a majority of the participants in the proceedings. The representatives of the Polish government and the Prosecutor General were of the opposite opinion. The latter has submitted a surprising request for the President of the CJEU to be excluded from the examination of the case
  • The prosecutor's behaviour and the statements of government representatives may suggest that the ruling majority is preparing for a non-recognition or creative interpretation of the ruling, to the detriment of the independence of Polish courts and Poland's position in the EU

Is the Disciplinary Chamber an independent court since it was fully formed by the new National Council of the Judiciary, mostly elected by politicians? Such a question from the Supreme Court came before the EU Court of Justice at its hearing in Luxembourg on Tuesday. The procedural nature of the case and the arguments raised during the hearing, as well as the expected decision of the Constitutional Tribunal seem to suggest that the final decision may (at least partially) contribute to limiting the influence of politicians on the Polish justice system. On the other hand, the surprising motion of the prosecutor to exclude the President of the CJEU at the trial may testify to the preparations of the ruling majority to challenge the judgment in this case, which would further weaken Poland's position in the EU. The Advocate General announced that the opinion on questions from the Supreme Court will be issued on 23 May.


Patryk Wachowiec, legal analyst

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Patryk Wachowiec