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New EU court ruling questions Polish judicial reforms.

Europe’s highest court flagged another problematic pillar of Poland’s judicial reform on Tuesday, warning that rules allowing the justice minister to move around judges jeopardised judicial independence.

The ruling is a far-reaching attack on justice minister Zbigniew Ziobro, a senior government figure and key architect of the judicial reforms.

These have overhauled how judges are appointed and created a new chamber to discipline judges, both the subject of separate legal action before the European Court of Justice (CJEU) in Luxembourg.

In a separate ruling on Tuesday, the CJEU grand chamber took issue with Mr Ziobro’s powers to second judges to the criminal courts as well as the justice minister’s decision to appoint himself chief prosecutor.

These latter reforms created potential problems in some criminal cases, the CEJU pointed out, where the justice minister could influence which public prosecutor took on a case and which judge heard it. Such far-reaching powers, the Luxembourg court said, could “give rise to reasonable doubts in the minds of individuals as to the impartiality of those seconded judges when they rule in such a case”.

Tuesday’s ruling follows a CJEU interim order, granted on October 27th, to fine Poland €1 million a day until it sets aside a problematic chamber for disciplining judges. A day later Poland’s constitutional court ruled – in a case brought by the government – that Polish national law and constitution had priority over EU law.

Critics say Poland’s EU membership is at risk by a reform process they say is designed to create a politically-dependent judiciary.

Warsaw dismissed the fine as “blackmail” and insists its courts, and related reforms, are areas of national sovereignty over which the EU has no competence.

Some 20 days and €20 million later, Luxembourg delivered its latest response in the long-running legal battle.

Opaque rules

Examining Poland’s reform procedures for criminal courts, it noted that a judge could only be seconded voluntarily – but that the end of such a secondment was not voluntary. The entire secondment system operates with opaque rules known only to the justice minister.

These powers, the CJEU added, “cannot be considered compatible with the obligation to comply with the requirement of independence” of EU member courts.

The referring court in Warsaw listed cases where it feared the arbitrariness of the secondment system could have an impact on rulings.

This “could give rise to the impression on the part of the judges themselves that they are ‘subordinate’ to the minister for justice, in a manner incompatible with the principle of the irremovability of judges”.

That sets the stage for a high-stakes battle among Polish judges in different camps of the judicial reforms, and the overseeing PiS-led government.

After last month’s fine, Mr Ziobro said Warsaw “cannot bow to lawlessness” and insisted Poland “cannot and should not pay a single zloty”. As part of the reform campaign, his justice ministry has formulated a law banning Polish judges seeking guidance from EU courts.

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