An adviser to the Court of Justice of the Europen Union (CJEU) said on May 6 that the Polish system to discipline judges, enacted in 2017 by the Law and Justice (PiS) government, violates EU law.

The non-binding opinion of advocate general Evgeni Tanchev could pose yet another problem for Warsaw, as it is trying to reshape Poland’s judiciary in the name of cleansing it of “communist-era residue” and making the courts more effective.

But doubts concerning the reform’s limiting the independence of judges and the government exerting overly political influence on the judiciary have led to the European Commission suing Poland over the changes.

In the opinion, Tanchev said that the government construed disciplinary measures in a way that may impinge on judges’ independence by allowing to discipline them for their rulings rather than in cases of “the most serious forms of professional misconduct.”

The advocate general also dismissed Poland’s claims that the matter is not subject to EU law.

Poland said in response that the CJEU is applying “double standards” in how it assesses member states’ judiciary systems. That is a reference to the CJEU’s earlier rulings on whether political bodies – such as in Malta or Germany – can appoint judges.

Poland’s Deputy Justice Minister Sebastian Kaleta also rolled out criticism of the CJEU on personal grounds. Kaleta suggested that a Polish former deputy foreign minister - now one of CJEU’s top figures – is inspiring “attacks” on the “sovereignty of the Polish judiciary.”

In a statement, Poland’s ministry of justice also said that Tanchev made a “dizzying career in law in his country during the communist times, according to the media.” Tanchev is from Bulgaria. 

The opinion does not preclude the final court ruling but in its past rulings, CJEU agreed with the opinions of its advocates general.

In the broader context, Poland’s being at loggerheads with the EU over changes to the judiciary is part of the discussion over whether Poland adheres to the EU’s rule-of-law principles. 

That, in turn, might have a bearing on Poland receiving funds from the bloc’s next budget and the pandemic recovery fund, although a scenario in which funds are indeed cut or withdrawn appears far off at the moment.