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European judges sue Council for disregarding EU Court’s judgement in unblocking Poland’s recovery fund

01 September 2022

Earlier this week, four key organisations representing European judges filed a law suit with the Court of Justice of the European Union (CJEU), against the EU Council over its decision to unblock Recovery and Resilience funds for Poland.

The four organisations, Association of European Administrative Judges (AEAJ), European Association of Judges (EAJ), Magistrats Europeéns pour la Démocratie et les Libertés (MEDEL) and Rechters voor Rechters (Judges for Judges), led by NHC Supervisory Board member Tamara Trotman, argue that the milestones agreed when the Council decided to unblock EU funds for Poland back in June 2022, insufficiently ensure effective protection of the independence of judges and the judiciary, and disregard the judgments of the Court of Justice on this issue.

NHC Committee Member Kees Sterk, former president of the European Network of Councils for the Judiciary, was involved in the preparation of this lawsuit.  As Sterk notes in an interview with leading Dutch news outlet NOS:

The decision to let Poland use the Corona recovery fund states that a possible application by a judge to get his job back will take a year,” Sterk says. “And the outcome is not guaranteed. That goes directly against what the Court has said.

In July of 2021, the Court of Justice of the European Union ruled that the Polish legislation regarding the disciplinary regime for judges is contrary to EU law. The Court found that the disciplinary regime, adopted back in 2017, undermines the judicial independence of Polish judges and does not ensure the necessary guarantees to protect judges from political control. At the time, the Court ruled that Polish judges affected by what it found to be unlawful disciplinary procedures should be reinstated at once, without delay or a procedure. The EU took this ruling to heart – employing the Rule of Law mechanism to block Poland’s access to the Recovery and Resilience fund, if it failed to complied with the Court’s judgement.  As Sterk pointed out, this is now directly negated by the Council’s decision to ‘water-down’ the milestones Poland needs to reach to access the recovery fund.

Joeri Buhrer Tavanier, Programme Manager Integrity and Accountability NHC:

In March of 2022, the NHC together with 10 other organisations working across Europe to defend fundamental rights and the rule of law, called on the European Commission and the Council to refrain from approving recovery funds to the governments of Poland and Hungary in haste without genuine and solid guarantees that the rule of law concerns will be resolved. At the NHC, we were and remain convinced that the European Commission and the Council need to hold strong on the fight for freedom, democracy and respect for fundamental rights and rule of law that Russia’s invasion in Ukraine has put back at the centre of our lives.  As we’ve said, the EU cannot allow the Polish government to continue to reject the rulings of the CJEU concerning the Disciplinary Chamber and risk further attacks, and we therefore welcome this lawsuit by the four organisations of judges for bringing this matter firmly back on the EU’s agenda.