By: Nick Mosher

On October 27, 2021, the European Court of Justice (ECJ) ordered Poland to pay a $1.2 million fine every day until the country enacts stipulated judicial reforms—namely, suspending the Disciplinary Chamber of its Supreme Court. The chamber – established in 2018 by Poland’s ruling Law and Justice Party (PiS) – has been used by PiS to increase the party’s control over the judicial branch. The ECJ (the EU’s top court) said that the fine was “necessary in order to avoid serious and irreparable harm to the legal order of the European Union and to the values on which that Union was founded in particular that of the rule of law.” PiS members, on the other hand, have called the fine “usurpation and blackmail.” 

PiS attempts to limit judicial independence began in 2015, when the newly elected President Duda refused to swear in five judges to the Constitutional Tribunal, the highest constitutional court in Poland. These judges were appointed prior to Duda’s term in office, and the president had no legal authority to prevent their swearing in. The Sejm – the lower house of Poland’s parliament that is currently controlled by PiS – then nominated five new judges loyal to the party. This act was immediately ruled unconstitutional by the Constitutional Tribunal. Nevertheless, Duda blocked the publishing of the court’s ruling and swore the judges in.

Duda, the Sejm, and the newly appointed members of the Constitutional Tribunal have worked together to sabotage the tribunal’s independence. Against constitutional norms, Duda appointed Julia Przylębska, a judge loyal to the party, as interim president of the tribunal in December 2016 and granted veto powers to the other unconstitutionally appointed judges. With this, critics warn, PiS has essentially turned the Constitutional Tribunal into a rubber stamp body for the party.

With the Constitutional Tribunal under its control, PiS turned its attack towards the Supreme Court, proposing a set of laws in 2017 designed to bring Poland’s highest court to heel. This included a new mandatory retirement age of 65 for men and 60 for women. If enacted, the law would force the retirement of 35 of the 87 justices, allowing PiS to fill the court with judges loyal to the party. Another major piece of the proposal was the creation of the Disciplinary Chamber within the Supreme Court. This chamber, filled by professional judges and civil jurors appointed by the Senate, is argued by critics to be a tool to pressure judges into PiS-friendly rulings.  Public outcry over the proposal forced President Duda to veto the bill in 2017 so that it could be reworked; it was then passed in 2018 without the mandatory retirement age.

The new Disciplinary Chamber within the Supreme Court allows PiS to severely limit judicial independence and cause Polish judges to fear speaking out or ruling against the Law and Justice Party. The ECJ ruled in July that Poland must suspend the chamber and announced its fine in October when Poland failed to do so. Although Poland promised in August to dismantle the body, it has failed to act as of yet.