Today, the European Commission decided to refer Poland to the Court of Justice of the European Union regarding the law on the judiciary of 20 December 2019, which entered into force on 14 February 2020. The Commission also decided to ask the Court of Justice to order interim measures until it has issued a final judgment in the case.

The Commission considers that the Polish law on the judiciary undermines the independence of Polish judges and is incompatible with the primacy of EU law. Moreover, the law prevents Polish courts, including by using disciplinary proceedings, from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the Court of Justice.

In addition, the Commission considers that Poland violates EU law by allowing the Disciplinary Chamber of the Supreme Court – the independence of which is not guaranteed – to take decisions which have a direct impact on judges and the way they exercise their function. These matters include cases of the lifting of immunity of judges with a view to bringing criminal proceedings against them or detain them, and the consequent temporary suspension from office and the reduction of their salary. The mere prospect for judges of having to face proceedings before a body whose independence is not guaranteed creates a ‘chilling effect' for judges and can affect their own independence. The Commission considers that this seriously undermines judicial independence and the obligation to ensure effective legal protection, and thus the EU legal order as a whole.

Besides referring the case to the Court of Justice, the Commission also decided today to ask the Court of Justice to order interim measures so as to prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order.

In its request for interim measures, the Commission will ask the Court of Justice in particular to:

• suspend the provisions empowering the Disciplinary Chamber of the Supreme Court to decide on requests for the lifting of judicial immunity, as well as on matters of employment, social security and retirement of Supreme Court judges,
• suspend the effects of decisions already taken by the Disciplinary Chamber of the Supreme Court on the lifting of judicial immunity, and
• suspend the provisions preventing Polish judges from directly applying certain provisions of EU law protecting judicial independence, and from putting references for preliminary rulings on such questions to the Court of Justice as well as the provisions qualifying action taken by judges in that respect as disciplinary offences.

Why is the independence of the judiciary important and who needs it?

Everyone needs an independent judiciary. Independent judges are the guardians of basic personal and civil liberties. They are a guarantee that everyone will be able to exercise and protect their rights as prescribed by law. An independent judiciary excludes political will and promotes the rule of law. Independence is preserved by the Constitution and quality laws, which prevent direct or indirect influence of the executive and legislature power on judiciary. Adopting this law, Poland is drifting away from the European acquis and violating the independence of judiciary. What is the situation in Serbia?

As part of its European path, Serbia still has a long way to go in order to harmonize its justice system with the EU. On that path, it is necessary to avoid wrong steps and to implement judicial reform as decisively as possible, because Negotiation Chapter 23 - justice and fundamental rights is one of the most important on the path to full membership in the European Union. Biggest problems of the Serbian judiciary are insufficient independence of judiciary, poor training of judges, uneven workload of judges and poor legal framework.

More details about European Commission referring Poland on European Court of Justice on this link.