Poland – Eleven months after the Polish Sejm adopted a law that had been agreed on in Brussels by the Morawiecki government to unlock the Next Generation EU funds withheld by the European Commission, the Polish Constitutional Tribunal said on Monday, December 11, that some key provisions of the agreed law are unconstitutional.

One of these unconstitutional provisions is the transfer of disciplinary procedures from the Supreme Court, where over half of the judges have been appointed after the 2017 judicial reform of the National Judicial Council (KRS), to the High Administrative Court (NSA). This provision raised questions from the beginning as the NSA’s role as per the Polish Constitution is to supervise the work of the administrative court system, whereas the reform imposed on Poland by Ursula von der Leyen’s Commission would have had the NSA conducting disciplinary procedures as a last resort for judges sitting on penal and civil courts.

However, the most important point rejected on December 11 by the Polish Constitutional Tribunal concerns something the European Commission had insisted on but which could potentially bring total anarchy to the Polish judiciary: the judge independence test. Something that would have been unique for Poland but which the European Commission considered was needed in light of the 2017 reform of the KRS.

Indeed, with this reform, the 15 judges sitting on Poland’s judicial council, out of 25 members in total, are elected by the Sejm, that is, the lower house of the Polish Parliament. Although Poland is not the only EU country where members of the body in charge of appointing the judges to the courts are elected by parliament, the Von der Leyen Commission considers that in the case of Poland, this reform puts in doubt the independence of the judges appointed by the President of the Polish Republic based on the candidacies put forward by the KRS.

Hence the need, in the eyes of the Commission, to allow for the parties to a trial to have the judge’s independence “tested”, and also for a judge appointed before the reform to “test” the independence of judges appointed after the reform and consider a judgment valid or not depending on the result of that test.

President Andrzej Duda had serious doubts about the constitutionality of those two key provisions in the new law adopted under pressure from the European Commission, to unlock the EU Next Generation funds, so he referred the law to the Constitutional Tribunal. This is, therefore, another hot potato left to Donald Tusk’s new government as a result of years of his and his friend’s actions in Brussels, where they had been demanding financial sanctions against their own country to force the Law and Justice parliamentary majority to back down from its judicial reforms.