EU court questions legality of Polish judicial reforms

The EU’s highest court has delivered its strongest rebuke yet of Poland’s controversial judicial reform process, questioning the legitimacy and political independence of judges appointed under the new regime.

The Court of Justice of the European Union (CJEU) recommended on Wednesday that Poland’s supreme court rule in favour of Waldemar Zurek, a regional judge who was transferred against his will from one court division to another in 2018.

Mr Zurek filed a legal challenge against a move he viewed as a demotion. Before a final legal review by the civil chamber of the supreme court, however, a judge at a separate chamber created by recent judicial reforms intervened.

Without reviewing the case file or hearing from Mr Zurek, the one-judge panel dismissed the appeal as inadmissible – although legal proceedings were already under way.

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The supreme court’s civil chamber sought an expedited preliminary ruling from the European court, based in Luxembourg, on whether the other chamber’s actions breached civil procedure.

It also asked for clarification on whether the supreme court judge who dismissed the case, and chamber responsible, “constitute an independent and impartial tribunal established by law”.

Sending the case back to Warsaw’s supreme court on Wednesday, the CJEU indicated the decision to dismiss the appeal against the transfer be declared “null and void”.

Means of control

Transfers of judges without their consent are, it said, “potentially capable of undermining the principles of the irremovability of judges and judicial independence”.

Such measures could be used as “a way of exercising control over the content of judicial decisions” and, given their potential to affect the life and career perspectives of a judge, “have effects similar to those of a disciplinary sanction”.

Since taking power in 2015, Poland’s ruling Law and Justice (PiS) party has carried out widespread reform of public media, public prosecutor service and the judiciary.

It says reform was necessary to remove encrusted crony structures, but critics see a concerted effort to bring all aspects of public life under PiS control.

The CJEU said these reforms had given “rise to reasonable doubt in the minds of individuals as to the independence and impartiality” of judges and courts.

Wednesday’s court ruling, the latest stage in a long-running legal battle over this reform process, anticipates the likely reaction of Warsaw officials, who have questioned the primacy of EU law after other recent rulings.

“A member state’s reliance on rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law,” the Luxembourg court ruled.