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EU court adviser backs $1M daily fine against Poland in rule of law dispute

The European Union and Poland have been at odds over democratic backsliding since the country’s ruling Law and Justice party came to power in 2015.

LUXEMBOURG (CN) — An adviser to the European Union’s top court criticized Poland in a series of opinions on Thursday, recommending the court uphold a fine of 1 million euros per day for failing to rescind controversial judicial reforms. 

Advocate General Anthony Collins wrote three nonbinding opinions for the European Court of Justice in five cases, all stemming from moves by Poland's nationalist right-wing government to overhaul the country's judiciary. 

The opinions come just days after Warsaw announced concessions in the long-running dispute in an effort to unlock billions in EU recovery funds Brussels has refused to turnover. Prime Minister Mateusz Morawiecki said in a press conference on Wednesday he is attempting to expedite the passage of a new law promising more judicial independence. 

Since the ruling Law and Justice party took power in 2015, it has instituted a series of reforms to the court system, including setting up a new disciplinary chamber and firing a number of judges it claimed had connections to the previous communist regime. 

The European Commission, the EU's executive branch, launched an infringement proceeding against Poland in 2021, alleging the newly established Disciplinary Chamber of the Supreme Court was not independent or impartial. Last October, the Luxembourg-based European Court of Justice announced it would fine the country 1 million euros ($1.06 million) daily for failing to comply. 

Poland appealed, claiming Brussels overstepped its authority. But Collins found that the EU has a vested interest in ensuring countries have an independent judiciary.

“The European Union is founded upon values common to the Member States in a society where justice prevails,” the Irish judge wrote. "Mutual trust between the Member States and, in particular, their courts and tribunals, is based on the
[premise] that a set of common values is shared."

Warsaw has already scrapped the disciplinary chamber, however, as part of its attempt to get ahold of some $37 billion in grants and loans from the EU's pandemic recovery fund.

“Unfortunately, the reality is the court is not fast enough,” Jakub Jaraczewski, research coordinator at Democracy Reporting International, a Berlin-based nonprofit that promotes democracy, said in an interview. 

According to Jaraczewski, the replacement body, the Professional Liability Chamber, is more independent and impartial than the previous institution. “It is an improvement,” he said. 

The other opinions focused on the firing of several specific Polish judges as part of the judicial overhaul, including Igor Tuleya, who has become a poster child for the plight of his fellow jurists.

Tuleya was suspended by the Disciplinary Chamber in 2020, in part for asking the Court of Justice to weigh in on some of the reforms. Collins wrote that judges can only be disciplined under EU law by a body that is independent and impartial. Going a step further, he advised that the national court should ignore rulings from the Polish Supreme Court if they are in conflict with EU law.

“The referring court must therefore, if necessary, disregard rulings of the [Constitutional Court] if it considers that, having regard to the Court’s judgment, those rulings are inconsistent with EU law,” Collins wrote. 

Jaraczewski said this is just the latest move by the Court of Justice to establish that it has supremacy over national courts where EU law is concerned. 

Once again, however, the court is “mostly speaking to the past,” Jaraczewski said. Tuleya was reinstated by the new Professional Liability Chamber earlier this year. 

Poland’s ruling party may not have enough votes in the country’s parliament to pass the law it is proposing to meet Brussels’ remaining demands. It would require cooperation from another party and, even if it does pass, the new regulations may not go far enough to open the EU's purse strings. 

Final rulings are expected in all of the cases next year. While the court is not required to follow the advice of its advocates general, it does in about 80% of cases. 

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