Checks and balances: Due to different governmental reforms, the Polish judiciary’s independence has been compromised. Bearing in mind that an effective judiciary is fundamental for the EU’s functioning, how can the latter act in order to restore the separation of powers in Poland?

Committee on Legal Affairs

by Julia Grajewska (PL)

“There is no liberty if the powers of judging is not separated from the legislative and executive”


Case study & introduction

When the Law and Justice (PiS) party took power in Poland in 2015, they began implementing various reforms targeting the judiciary to “improve its efficiency”, claiming that long-overdue reforms were needed for a system beset by corruption and communist era mentality. These changes, however, have drawn the attention of the EU and international critics, who claim that the reforms are a threat to the rule of law and democracy itself.

The package of laws introduced in 2017 affected the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary. The reform was accompanied by a media campaign presenting judges as an insulated caste and accusing them of nepotism, corruption, laziness, and abuses of justice under Communist rule. Due to the changes, the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.Democracy and the rule of law are some of the core values of the EU, and should be common to all EU countries. A breach of these values by a Member State does not only concern the Member State in question, but it also has an impact on other Member States, the mutual trust between them, the functioning of the Union’s institutions as well as its citizens’ Fundamental Rights.

Key problems

Among many other changes, the reform altered how members of the National Council of the Judiciary (NCJ),  involved in the procedure for the appointment of judges, are elected. Currently, it is for the most part made up of members chosen by the legislature. The legislation also immediately ended the terms of the NCJ’s sitting judges, allowing the lower house (Sejm) to quickly replace 15 members of the body with its own appointees. As a result, the Sejm had effectively taken control of judicial appointments in Poland. On 28 October 2021, the European Network of Councils for the Judiciary decided to expel the NCJ from their organisation, mainly for its lack of independence and failure to defend judicial independence against attacks.

Moreover, the offices of Minister of Justice (executive branch) and Prosecutor-General (judiciary branch) are occupied by the same person. Following the merging of these positions, the Minister of Justice, who is a member of the Law and Justice party, directly wields the powers vested in the highest prosecutorial office, including the authority to issue instructions to prosecutors in specific cases and to transfer prosecutors.
Furthermore, Poland’s Constitutional Tribunal, which was regarded by the European Court of Human Rights (ECHR) as unconstitutionally composed in regard to the Polish Constitution, issued a ruling that directly challenges the primacy of EU law1. It questioned the compatibility of the EU treaties with the Polish Constitution, declaring many provisions of EU law unconstitutional. In response, the Commission swiftly reaffirmed the primacy of EU law and the binding force of all Court of Justice of the European Union (CJEU) rulings on national authorities, including national courts.

1The principle of the primacy of EU law is based on the idea that where a conflict arises between an aspect of EU law and an aspect of law in an EU country (national law), EU law will prevail.

Key stakeholders and measures in place

Democratic values are the core of the EU’s functioning – they are enshrined in the Union’s Treaties, for example in Article 2 of the Treaty on European Union (TEU), and all Member States should act in accordance with them. To ensure the respect of the principles and values, several procedures enforcing the democratic values mentioned in Article 2 TEU exist. 

One of them is the infringement procedure, which is launched by the European Commission (EC), the EU’s executive body responsible for implementing policies as well as proposing and enforcing EU law. The Commission notifies an EU country that fails to implement EU law of its concerns, giving it the time to respond. If the member state still fails to fulfil its obligations, EC later sends a formal request to comply with EU law.

If the country still doesn’t comply, the Commission may refer the issue to the Court of Justice of the European Union (CJEU), which consists of judges appointed by all Member States. It interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions. In certain cases, when a Member State does not comply with CJEU’s judgements, the CJEU can impose financial penalties

Several infringement procedures have already been launched against Poland regarding judicial independence. In fact, on 27 October 2021, the CJEU imposed €1 million as a daily penalty payment on Poland for not complying with its previous orders.

Another possible penalty can be found in Article 7 TEU. It includes two mechanisms for protecting EU values: preventive measures, if there is a clear risk of a breach of EU values, and sanctions, if such a breach has already occurred. Possible sanctions against the EU country concerned are not clearly defined in the EU treaties, but might include suspending voting rights in the Council and the European Council. On 20 December 2017, the Commission concluded that there is a clear risk of a serious breach of the rule of law in Poland and therefore proposed to the Council to adopt a decision under Article 7(1), triggering Article 7 TEU for the first time. However, the procedure of stripping a Member State from its voting rights in the Council requires unanimous support from other Member States, which in practice can be difficult to reach. For example, Viktor Orbán, Hungary’s Prime Minister, announced on 8 January 2016 that Hungary would block any Article 7 sanctions that the EU might propose against Poland.

Breaches of EU values: how the EU can act (infographic), 2018

The judiciary reforms in Poland directly affect Polish judges and citizens. The level of perceived judicial independence in Poland is now very low among the general public. Overall, only 24% of the general population perceived the level of independence of courts and judges to be ‘fairly or very good’ in 2022. Moreover, a group of polish journalists exposed an online trolling campaign aimed at a group of judges being organised within Poland’s Ministry of Justice. 

Since 2017, approximately 10% of Poland’s judges have been investigated. The Polish Judges’ Association, Iustitia, stated that judges who oppose the changes in the judicial administration are being targeted, and that there may be numerous pretexts: a public statement, approaching the CJEU with a request for a preliminary ruling2, or simply wearing a t-shirt with the inscription Konstytucja (Constitution). Disciplinary proceedings are not the only repression affecting judges; some have even been suspended for challenging government policies.

2A preliminary ruling is the decision of the European Court of Justice (ECJ) on the interpretation of the European Union law that is given in response to a request for a court or a tribunal of a member state.


In order to kickstart our work, I will ask you to prepare a short answer to one of the following questions. Feel free to do it in any format you like – a video, infographic, written piece – anything you’ll feel most comfortable with! It doesn’t have to be complicated, a few sentences will be perfectly enough. You’re very much welcome to do more research on your own, however if you use a fact not mentioned in the Topic Overview make sure to include a source of your information.

  • How do the reforms in Poland affect other EU countries, and why do they matter in the international context?
  • What are some possible dangers of the executive and legislative branches interfering with the judiciary? 
  • Think of another example of a breach of the rule of law in Europe (preferably in the last 5 years). Was it similar to Poland’s judiciary reforms? Are there any common patterns?