By Joseph Ayinde
The European Commission has taken its infringement procedure against Poland over judicial independence one step further and asked the EU’s Court of Justice to impose daily fines on the country.
The Commission considers Poland has failed to abide by the Court’s interim measures issued on 14 July, which relate to a controversial chamber of the Polish Supreme Court that was established to discipline judges and prosecutors.
Brussels sees the disciplinary chamber as a threat to the country’s judicial independence that makes judges subject to political control.
The Polish government insists it’s an essential tool to eliminate the remains of the communist regime.
The EU’s top court issued the July injunction in an attempt to suspend both the chamber and the effects of the decisions it had already taken on the lifting of judicial immunity.
However, the Polish constitutional tribunal rejected the ruling, arguing it was inconsistent with the Polish condition and therefore non-binding. The move was seen as shocking and extraordinary: the primacy of European law is one of the EU’s fundamental principles. Some experts raised the possibility of a “legal Polexit”.
In response to this act of defiance, the European Commission sent an ultimatum and gave Poland until 16 August to abide by the Luxembourg ruling and suspend the disciplinary chamber. Otherwise, the executive would request daily penalties – the final and most forceful step of an infringement procedure.
Even though the Polish government sent a reply on 16 August and promised to dismantle the chamber, the Commission is not satisfied and believes the country “has not taken all the measures necessary to fully comply” with the order.
The disciplinary chamber continues functioning today, the executive noted.
For this reason, the Commission has asked the EU’s Court of Justice to impose financial penalties on Poland until the interim measures issued in July are applied. The Commission didn’t provide the Court with a proposed amount for the daily fines. A spokesperson said on Tuesday the matter will be for the Luxembourg judges to decide.
Separately, the executive launched a new infringement procedure against Poland in relation to another ruling by the EU’s Court of Justice that said the legislation underpinning the disciplinary chamber was in breach of EU law. Polish authorities, Brussels said, have also failed to apply this judgement.
“Justice systems across the European Union must be independent and fair. The rights of EU citizens must be guaranteed in the same way, wherever they live in the European Union,” European Commission President Ursula von der Leyen said in a statement.
The Commission hopes the financial threat will force the hand of the Polish government and finally amend the disciplinary chamber, a subject that has put Brussels and Warsaw on a collision course.
Polish Deputy Justice Minister Sebastian Kaleta has described Brussels’ move to request daily fines as “aggression”.
“The European Commission is illegally blocking funds in Poland and is calling for sanctions. These are acts of aggression,” he said in a tweet, adding that these attacks were “illegal”.
The latest escalation comes as the Commission continues its internal review of the Polish recovery and resilience plan. Although the €36-billion plan was submitted back in May, the Commission continues to postpone the publication of its assessment, which needs to be sent to the EU Council for approval.
At the same time, the European Parliament is pressing the Commission to apply a new mechanism to freeze EU funds for countries that don’t respect the rule of law and fundamental rights. MEPs have singled out Poland as a case that merits the system’s immediate application.
In a matter of weeks, Brussels has seen the three issues – the infringement procedure, the recovery fund and the conditionality mechanism – converge into a decisive test for the European Commission to prove its value as guardian of the EU treaties.
“It’s very important to put a real pressure with a real financial sanction to be sure that we have a real positive evolution in Poland,” Didier Reynders, European Commissioner for justice, told reporters on Tuesday afternoon.
“There is a link between the [national recovery] plans and the country-specific recommendations in the European Semester. And if you look to the country-specific recommendations, you will see that [for] Poland, we have put some remarks on the independence of the justice system,” he said, adding that the Commission would be able to add “conditions” in the adoption of the recovery plans.
Asked about the potential amount of the financial penalties, Reynders didn’t specify a number but referred to a previous case where the Luxembourg court ordered Poland to pay €100,000 per day for defying a ban against logging in an EU-protected forest.
The Commission is also considering blocking cohesion funds destined to Poland over the so-called LGBT-free zones that some municipalities and regions have put in place. The executive considers these areas to discriminate against EU citizens on the grounds of sexual orientation. Brussels opened an infringement procedure in mid-July deploring Poland’s lack of cooperation.