Commission ups the ante, asks court for financial penalties against Poland

In a highly unusual move in its ongoing legal spat with Poland, the European Commission asked the top EU court on Tuesday (8 September) to impose a daily financial penalty for Warsaw’s non-compliance with temporary measures European judges put in place in July.

The move comes as the Commission steps up its legal feud with Warsaw over judicial reforms that Brussels says are incompatible with EU law.

On 14 July, the European Court of Justice (CJEU) ordered Poland to suspend certain powers of the country’s disciplinary chamber for judges, including the body’s ability to go after judges who apply EU law on judicial independence, as well as its power to lift judicial immunity, and retroactively suspend all such decisions already taken.

The Commission now said that Poland had failed to comply with the orders of the judges in Luxembourg, pointing to a recently opened disciplinary investigation against a judge in Poland who had applied the CJEU’s July order.

Meanwhile, the Polish government has said it does not have the power to implement the order.

The European executive’s decision to demand financial penalties for Poland’s not complying with a Court order before a final judgement in the case is made is highly unusual. One senior Commission official described the move as “very uncommon” and “not an easy step”, taken after a lot of deliberation.

The Commission left it up to the Court to decide on the amount, should it decide to press ahead with the penalty.

Some commentators applauded the move for its swiftness, after frequent accusations that the Commission was dragging its feet on rule of law. “Excellent news and right course of action without undue delay for first time in years,” Laurent Pech, professor dealing with European rule of law issues, wrote on Twitter.

Others have remained less optimistic.

“In a ‘community based on the rule of law’, even a weak, member state-driven Commission has no choice but to act”, Alberto Alemanno, professor of European law and founder of The Good Lobby, said on social media.

The Commission also started a separate procedure against Poland on Tuesday for failing to comply with a summer judgement of the CJEU proclaiming the regime for judges in Poland incompatible with bloc law because it fails to protect judges from political control.

In the meantime, Poland promised last month to scrap the disciplinary chamber in question but the Commission now said the promises lacked clarity.

According to the senior Commission official, Brussels was given “no information on how this needs to be done or by when, for instance.”

The episode is the latest in a series of legal battles between the EU and Poland that some fear could eventually lead to a legal ‘Polexit’ from the bloc.

Meanwhile, Poland accuses Brussels of blackmail over what it says are attempts to attach strings to the disbursement of already earmarked COVID cash.

“The European Commission unlawfully blocks funds in Poland and applies for penalties,” Poland’s deputy justice minister Sebastian Kaleta said in reaction to Tuesday’s decisions, calling the Commission’s moves an “unlawful attack” in a series of “acts of aggression”.

He also pointed towards Germany, Spain, Romania, and France, saying they “have not recognised the judgments of the CJEU in the last two years”.

In turn, the Commission continued to claim that its decision to hold up approval of Poland’s recovery plan, the next step in unlocking the funds, is a separate procedure “on the basis of the criteria laid out in the” recovery fund regulation.

[Edited by Zoran Radosavljevic]


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