{"id":1907,"date":"2021-08-12T19:51:22","date_gmt":"2021-08-12T17:51:22","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=1907"},"modified":"2022-02-11T21:44:27","modified_gmt":"2022-02-11T20:44:27","slug":"disciplinary-regime-applicable-to-polish-judges-judgment-of-the-cjeu-in-the-case-of-commission-v-poland","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/de\/disciplinary-regime-applicable-to-polish-judges-judgment-of-the-cjeu-in-the-case-of-commission-v-poland\/","title":{"rendered":"Disciplinary regime applicable to Polish judges: judgment of the CJEU in the case of Commission v. Poland"},"content":{"rendered":"\n

In the case of European Commission v. Poland (R\u00e9gime disciplinaire des juges) <\/em>(C-791\/19, 15.7.2021), the CJEU decided on several complaints which had been raised by the European Commission, in the context of an action for failure to fulfill obligations (Art. 258 TFEU), and which concerned the new disciplinary regime applicable to Polish judges<\/strong>. In line with previous rulings (notably A.K. and Others<\/em>, C-585\/18, C-624\/18, C-625\/18; see below<\/a>), the CJEU thereby expansively dealt with the requirements to be fulfilled under EU law for a domestic court to be independent and impartial<\/strong>. From a Convention perspective, the following aspects of the CJEU\u2019s reasoning would appear to be noteworthy.<\/p>\n\n\n\n

First, on the general relationship between EU law and the European Convention on Human Rights, the CJEU confirmed that pursuant to Article 52(3) of the EU-Charter<\/strong>, its interpretation of Articles 47(2) and 48 of the Charter must ensure a level of protection which does not disregard the one guaranteed by Article 6 ECHR<\/strong>, as interpreted by the European Court of Human Rights (\u00a7 165).<\/p>\n\n\n\n

The approach adopted by the CJEU in this case would nonetheless appear to be somewhat different from the one usually adopted by the ECHR in similar cases. This could be explained by the fact that by their very nature, the complaints raised by the European Commission against the new disciplinary regime applicable to judges in Poland required the CJEU to look at the situation from an institutional perspective<\/strong>, covering simultaneously the independence and the impartiality<\/strong> of the judges concerned, considered in the abstract. Thus, the test and its application read as follows:<\/p>\n\n\n\n

Taken together, the particular context and objective circumstances in which the Disciplinary Chamber was created, the characteristics of that chamber, and the way in which its members were appointed are such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of that body to external factors<\/strong>, in particular the direct or indirect influence of the Polish legislature and executive, and its neutrality with respect to the interests before it<\/strong> and, thus, are likely to lead to that body\u2019s not being seen to be independent or impartial<\/strong>, which is likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire <\/strong>in those individuals. Such a development constitutes a reduction in the protection of the value of the rule of law<\/strong> for the purposes of the case-law of the Court referred to in paragraph 51 of the present judgment. <\/em>(\u00a7 112; see also \u00a7\u00a7 59, 86, 98, 139).<\/p>\n\n\n\n

By contrast, the ECHR primarily looks at the issues from the point of view of the individual applicant<\/strong>, thereby distinguishing between the independence<\/strong> of a judge and his\/her impartiality<\/strong> and, as far as the latter is concerned, requiring any doubts of an applicant to be objectively justified<\/strong> (see, e. g., Morice v. France<\/em>, 23.4.2015, 29369\/10, \u00a7 76).<\/p>\n\n\n\n

However, both Courts converge in emphasizing the importance of appearances<\/strong> in this field as an essential means of preserving the trust<\/strong> which justice in a democratic society governed by the rule of law must inspire in the citizens (see, e. g., Micallef v. Malta<\/em>, 15.10.2009, 17056\/06, \u00a7 98, recalling that \u201cjustice must not only be done, it must also be seen to be done\u201c). <\/p>\n\n\n\n

Finally, against this background, it comes as no surprise that on the issue of whether a court can be considered as \u201cestablished by law<\/strong>\u201d, the CJEU, in contrast with its approach on the other issues addressed, explicitly relied on Strasbourg case-law (\u00a7\u00a7 168, 171). The reason would appear to be that under Article 6 of the Convention too, the answer to this issue can only be given from an institutional perspective<\/strong>, which is much closer to the perspective adopted by the CJEU in the present case. In this connection, see also the recent judgment in the case of Reczkowicz v. Poland<\/em> <\/a>(22.7.2021, 43447\/19) in which, after abundantly referring to the case-law of the CJEU concerning the recent reform of the judiciary in Poland, the ECHR found that the Disciplinary Chamber of the Polish Supreme Court could not be considered a \u201ctribunal established by law\u201d (\u00a7 277) (see also the post on this judgment, on this page).<\/p>\n\n\n\n

Commission-v.-Poland<\/a>Download PDF<\/a><\/div>\n","protected":false},"excerpt":{"rendered":"

In the case of European Commission v. Poland (R\u00e9gime disciplinaire des juges) (C-791\/19, 15.7.2021), the CJEU decided on several complaints which had been raised by the European Commission, in the context of an action for failure to fulfill obligations (Art. 258 TFEU), and which concerned the new disciplinary regime applicable to Polish judges. In line […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,19],"tags":[],"class_list":["post-1907","post","type-post","status-publish","format-standard","hentry","category-court-of-justice-of-the-eu","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"de","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/1907","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/comments?post=1907"}],"version-history":[{"count":3,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/1907\/revisions"}],"predecessor-version":[{"id":1926,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/1907\/revisions\/1926"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/media?parent=1907"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/categories?post=1907"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/tags?post=1907"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}