The Development of Interim Measures Procedure in Cases Against Poland Before CJEU
| May 03, 2024
Published Online: May 03, 2024
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DOI: https://doi.org/10.2478/wrlae-2022-0024
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© 2022 Aleksander Cieśliński, published by Sciendo
This work is licensed under the Creative Commons Attribution 4.0 International License.
The aim of this paper is to examine the interim measures imposed by the CJEU within the context of Polish experiences of disputes with the EU Commission. Specifically, it explores how Poland has contributed to the development of this unique legal measure within the context of proceedings before the Court of Justice. This contribution can be attributed to the assertive approach taken by the Polish government towards EU institutions, particularly in recent years, and the ongoing challenges related to the rule of law crisis.
After providing a general overview of interim measures, with an emphasis on outlining the conditions for their application, the paper focuses on analyzing case law in two major areas of EU law where such measures have been implemented, that is, the protection of the environment and the rule of law. The analysis particularly delves into understanding how these conditions were interpreted in specific situations of these disputes. The analysis is divided into two parts – first, the subject matter of the disputes as well as the Court’s rulings are presented, and then how conditions for prescribing interim measures were understood and applied in particular cases.
Interim measures have become an indispensable element of the Union’s jurisdictional system. Within the framework of proceedings before the CJEU, they are considered one of the key guarantees of an individual’s right to effective judicial protection and the full effectiveness of the future judgment on the substance, preventing it from becoming illusory by being deprived of any practical effect. The Treaty on the Functioning of the European Union (TFEU) offers two provisions in this area. The first provision, as provided for in Article 278 TFEU, plays an important role in actions for annulment instituted under Article 263 TFEU. According to it, even if actions brought before the Union courts do not have a suspensory effect, the Court may, if it considers that circumstances so require, order the application of the contested act to be suspended. The second provision, in Article 279 TFEU, is a far more general legal basis that empowers the Court to prescribe “any necessary interim measures” without setting any limits on the types of measures that can be prescribed. Therefore, it can impose any instruction or prohibition that may be found necessary to temporarily safeguard the effectiveness of the future decision in the main proceedings. As evidenced by the evolution of case law, the understanding of this last provision is very broad and creative, having a significant impact on actions by the Member States for failure to fulfil Treaty obligations.
Daniel-Erasmus Khan, Rudolf Geiger and Markus Kotzur,
Interim measures are only admissible within the context of an action already pending before the Court, serving a fully provisional and ancillary role to the main case. Most importantly, they cannot predetermine the main case or anticipate the final decision in the main proceeding, and their subject matter should focus on restoring or maintaining the status quo ante. An application for interim measures cannot be introduced without the prior, or at least simultaneous, introduction of the main action. It should be admissible only if made by a party to a case before the Court and related to that case, but only after the main action has been lodged. Once it is introduced, there is no time limit for submitting such an application. Despite being designed for imposition only in exceptional circumstances, they are now frequently applied for by the Commission in procedures concerning the infringement of EU law by Member States instituted under Article 258 TFEU.
Bertrand Wägenbaur,
Applications for Interim Measures must be well grounded, and their issuance requires the fulfillment of strict conditions that must be met cumulatively. However, the interim relief procedure is not designed to establish the truth of complex and much-debated facts. The judge who hears an application for them does not have the means necessary to carry out such examinations, and in numerous instances, he would have difficulty doing so within a sufficient time frame. This is one of the reasons why such a judge has wide discretion and is free to determine, with regard to the case’s specific circumstances, the manner and order in which various conditions are to be examined. Originally, two criteria were verified, and they are still fully in force. Therefore, interim measures may be ordered only if it is established that they are justified, prima facie, in fact and in law, and provided that it is urgent insofar as it must, in order to avoid serious and irreparable harm to the applicant’s interests, be made and produce its effects before a decision is reached in the main action.
Case C-7/04 P(R)
Prima facie justification, also known as a prima facie case, is also labelled as Fumus Boni Juris. This condition may seem to be the most problematic one, particularly when understood in an open way and adopted as a consequence of the long development of case law. Originally, the approach was restrictive, requiring the judge hearing the application for Interim Measures to examine whether, at first sight, the action in the main case is admissible and well-founded. However, currently, it is to be met where at least one of the pleas in law in support of the main action appears, prima facie, not unfounded, i.e., whether at first sight, it appears that the action in the main proceedings is not completely without merit. This kind of examination can be based on a rather brief analysis of the case only, leaving a wide margin of appreciation for the judge who is supposed to ascertain whether at least one of the pleas is weighty enough that it cannot be discounted in the proceedings, or whether the action in the main proceedings does not seem to be ‘manifestly’ or ‘prima facie’ unfounded, or even that the arguments put forward by the applicant cannot be dismissed at such an early stage of the proceedings without a more detailed examination.
Case C-149/95 P(R)
The Court of Justice was even prepared to prescribe Interim Measures in cases where a plea revealed the existence of complex legal issues, the solution to which was not immediately obvious and therefore called for a detailed examination that could not be carried out by the judge hearing the application for interim relief but must be the subject of the main proceedings. It was also done in cases where the discussion of issues by the parties revealed a significant legal disagreement whose resolution was not immediately obvious.
Case C-238/18 R
The condition of urgency is a key element of the analysis, the absence of which results in the failure of the application for Interim Measures and appears to be more evident. It is based on the idea of no gap in legal protection and to ensure the full effectiveness of the future final decision in order to avoid serious and irreparable harm to the applicant’s or, more generally, the Union’s interests, particularly related to the protection of EU values or basic principles. This last aspect is typical for the Commission acting as a guardian of the Treaties in actions against Member States to prevent the damage caused by the infringement of EU law by national authorities to the rule of law, free movement in the internal market, or environmental protection. In all cases, the sought measures must be urgent and indispensable at such an early stage in order to avoid the damage that could occur if they are not imposed and, therefore, they have to be ordered and become effective even before the judgment in the main proceedings. The sole aim of these measures is not to repair the damages that have already occurred but to prevent new ones, especially those that could not be remedied by a favourable final decision in the main action. It is for the applying party to prove that it cannot wait for the outcome of the main proceedings without suffering serious and irreparable damage stemming from a refusal to grant the interim measures sought, in the event that the action in the main proceedings is subsequently successful. However, it is not necessary for the occurrence of the damage to be demonstrated with absolute certainty but rather to show that it is foreseeable with a sufficient degree of probability.
Case 378/87 R
The aforementioned traditional conditions were supplemented during the development of the case law, leading to the introduction of one more criterion. Interim Measures that would be prima facie justified and considered necessary in terms of urgency might be prescribed, provided that the judge responsible for it must undertake a balancing of the interests involved to verify whether the one in favour of having interim measures imposed outweighs the other interests at stake. This is a very important condition as both the grant and refusal of the measure sought are likely to produce certain effects, including definitive ones. Therefore, it is necessary to weigh up the risks and consequences attached to each of the possible solutions and consider whether it is possible to reverse the situation created by a particular interim measure. This includes a proportionality assessment between, on the one hand, the preservation of the status quo ante and, on the other hand, the need to avoid prejudging the main case.
Case C-159/98 P(R)
Particularly in proceedings against Member States, the interest in having Interim Measures is supported by the general EU interest, which needs to be balanced against specific national interests, often involving the maintenance of certain rules or measures that may undermine the integrity of the EU system. In practical terms, this involves examining whether the interest represented by the Commission in obtaining the suspension of the application of provisions of national legislation outweighs the interest in their immediate implementation. In this examination, it must be determined whether the possible repeal of those provisions after the Court has upheld the action in the main proceedings would make it possible to reverse the situation that would have been brought about by their immediate implementation. Conversely, it must be considered whether the suspension of their application would impede the objectives pursued by those provisions in the event of the action in the main proceedings being dismissed.
Case C-619/18 R
Within the framework of actions undertaken by the Commission for the failure to fulfil obligations under the Treaties by Member States, Interim Measures have proven to be particularly useful. They are gradually becoming one of the vital legal instruments ensuring the more general effectiveness of the EU legal order, with special emphasis placed on the rule of law and the basic principles of the EU supranational system. Unfortunately, one of the main reasons for their growing role is the extremely assertive approach represented by the Polish government in terms of respecting the special nature of this order and even the CJEU’s case law itself. This has provided the Court of Justice with a good opportunity to develop an understanding of Treaty rules on interim measures and their application in particular situations.
Therefore, the “Polish” case law in this matter has become very interesting and informative from a systemic viewpoint and is worth closer analysis. There are particularly two sensitive areas of EU law where this case law could be developed, namely EU policy on the environment on one hand and the protection of the rule of law with special emphasis placed on the independence of the judiciary on the other. Especially in the second area, the rule of law crisis that has been growing in Poland since 2015 has posed dramatic challenges for the EU. However, the rulings and orders that the Court of Justice was forced to pass in this context paved the way for both substantive and procedural developments, leading even to new measures that may be adopted in response to the unprecedented undermining of EU law foundations, along with the jurisdiction of the Court of Justice.
All of the proceedings described below ended without a final ruling as the applicants decided to withdraw their applications.
Case C-193/07
The first environmental dispute that was about to lead to the imposition of Interim Measures started in 2007. It concerned the construction of expressways through a Special Protection Area in terms of the Wild Birds Directive and Habitats Directive in the renowned primaeval woodland of the Rospuda River Valley, posing a threat of irreversible damage. The Commission initiated proceedings and applied specifically for the immediate suspension of the works. At that time, just a few years after the EU accession, this kind of pressure proved to be sufficient, and the Polish government soon announced the discontinuation of the construction at the stage when only some geodetic measurements were undertaken. Therefore, the Commission decided to withdraw its application,
Case C-193/07 R-2 Case C-193/07 EU:C:2009:495
Case C-441/17
Ten years later, in a different political climate, the Polish government adopted a much more assertive approach, demonstrating no intention of compromise in a similar situation involving charges of violations of the Habitat and Wild Birds Directives. The Białowieża Forest is the last remaining primaeval forest in lowland Europe, protected not only by EU law (designated as the Natura 2000 site of Community importance) but also recognised by UNESCO as a Biosphere Reserve and a World Heritage Site. It has been safeguarded from logging for decades to preserve centuries-old trees and large quantities of dead wood that foster an incredible variety of well-preserved natural habitats for hundreds of rare species of birds, animals, insects, and fungi, as well as, unfortunately, the bark beetle. According to Poland, the lack of “sustainable management” of the forest had encouraged the uncontrolled spread of the bark beetle, leading to an increasing death toll of trees. Although this is a natural process for such forests, the Polish government adopted a purely economic approach, focusing on market use and income for neighbouring communities while disregarding the unique value of the untouched forest as a living organism, where dying trees serve as habitats for other species. Consequently, an increase in logging was permitted, along with the removal of dead and spruce bark beetle-affected trees, allowing active forest management operations in previously untouched areas, including ‘sanitary pruning’, reforestation, and restoration.
The European Commission instituted proceedings against Poland, supported by a number of scientific opinions demonstrating the adverse impact on the forest’s integrity, without meeting the ecological requirements, particularly the strict protection of many species, and undermining the favourable conservation conditions for habitats. In its application for interim measures, the Court was asked to order Poland to cease all these operations, and it was granted provisionally soon after.
Case C-441/17 Case C-441/17
That order entered history as, due to well-grounded doubts that Poland was not prepared to comply with it, the Court decided, following the Commission’s proposal, to adopt a new approach to the interpretation of Art. 279 TFEU, based on the concept of a very broad discretion of its own powers to impose literally any measure it deems necessary to ensure the effectiveness of the interim measures imposed. For the first time, there was a provision for a periodic penalty payment to be imposed should the order prescribing them not be respected by the relevant party, as its prospect may discourage failing to comply, also guaranteeing the full effectiveness (seen as an essential component of the rule of law) of the final decision in the main action without, however, prejudging it. The Court did not share Poland’s position that only Art. 260 TFEU on final judgments in this kind of proceeding empowered it to impose such penalties, even if it had been the common understanding until that time. However, since it was a novelty, they were not prescribed yet, but Poland was ordered to notify the Commission of details of all measures adopted, and only after a failure would be found, could the request for the proceedings to be resumed be applied. But the Court already established its future power to adopt a new order finding an infringement and imposing a penalty payment of at least €100,000 per day until Poland would fulfil its duties or until a final judgment, which finally wasn’t necessary as Poland fully complied with its duties.
Case C-121/21
The above-mentioned amount of money seemed to be extremely high, even compared to penalties that the Court used to impose within the framework of proceedings under Art. 260 TFEU. However, this perception changed with the action of the Czech Republic against Poland over the functioning of the Turów open-cast lignite mine located very close to the Polish-Czech border, operated by the large Polish energy corporation PGE, which caused a major problem of a dramatic lowering of groundwater levels on the Czech side. The legal status of these operations became doubtful when the previous concession to operate the mine was about to expire in April 2020, and Polish authorities decided to amend domestic law to allow for a special one-time extension of its validity for six years without any environmental impact assessment, justified by the rational management of the deposit if done without extending its original scope. While the extension was granted days before the expiry date, simultaneously, the operator applied for the regular extension of the concession until 2044. Within the framework of this proceeding, the decision on environmental conditions was issued by the relevant Polish authorities in January 2020. That decision was immediately enforceable without putting it under any prior control of an independent court, providing effective legal protection and giving an opportunity to be challenged by NGOs and local communities, excluding even public opinion from review at this stage. This was a serious violation of EU rules, especially Directive 2003/4 on public access to environmental information, Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment, Directive 2000/60 on water policy, and the principle of sincere cooperation of Article 4(3) TEU.
Therefore, the following year, the Czech Republic instituted an action before CJEU for Poland’s failure to fulfil its obligations under EU law, invoking pleas of no assessment for the temporary decision, with the proceedings mostly non-public, excluding the public concerned or the Czech Republic from the ability to intervene in the procedure, especially since Poland failed to publish the development consent and sent it to the state late and in an incomplete form. The party also applied to the Court to order Poland to immediately cease lignite extraction mining activities until the final judgment was delivered, which was ordered in May 2021 but with no compliance result.
Case C-121/21 Case C-121/21
The Court also established some more general rules on amounts to be imposed in such cases, reminding first of all that the State Party’s proposals are not binding for the judge, who remains free to set the penalty considered as adequate, i.e., appropriate to the circumstances, proportionate to the established infringement, and the ability to pay off a State, taking into account the need to avoid serious and irreparable harm. Poland did not want to pay penalties voluntarily, but some time later, a political agreement between both governments led to the withdrawal of the case by the Czech Republic, and it was removed from the register in May 2022.
The Court of Justice’s approach to understanding the prima facie justification of applications in the cases described above turned out to be rather open.
In the Białowieża case, the Court found that there was a major legal or factual disagreement whose resolution was not immediately obvious, and therefore, the action was not prima facie without reasonable substance. For the judge in this proceeding, the arguments relied on by the Commission did not appear, prima facie, to be unfounded, especially considering that the active forest management operations at issue failed to respect the protection requirements under the Habitats Directive and the Birds Directive.
Case C-441/17 R, p. 31–42
In the Turów case, it could not be ruled out prima facie that the Polish legislation infringed EU law, especially since an extension of such a concession must always be subject to environmental assessment or at least to prior verification of its need. Consequently, the arguments put forward by the Czech Republic appeared for the judge, prima facie, to be well-founded.
Case C-121/21 R, p. 41–52
The CJEU did not have doubts that active forest management operations in Białowieża were likely to cause irreparable and serious damage to the environment and even the common heritage, as they involved the removal of old, dying, or dead trees, which must have had an impact on the relevant habitats with no possibility to be rectified in case of continuation.
Case C-441/17 R, p. 54–59
In the Turów case, the most sensitive issue was the negative effects of the continuation of mining activities on the access to water for a number of settlements on the Czech side, as it entailed an uninterrupted flow of a considerable volume of water from the Czech to Polish territory, causing an undoubted deterioration in the level of groundwater in the Czech Republic. The threat to the drinking water supply of the populations dependent on the affected bodies of water could not be remedied at a later date, even if the Czech action were to be upheld in a final ruling. That kind of harm to both the environment and human health was considered serious and irreversible enough to impose interim measures, especially since Poland’s responsibility was confirmed by its own actions, i.e., the plan of adopting a remedial measure - the construction of an anti-filtration screen to reduce the negative effects but not to be completed until years to come.
Case C-121/21 R, p. 59–79
This part of the Court’s findings focused on confronting opposing interests. In the Białowieża case, the potential threat to the protection of habitats and species posed by active forest management operations turned out to be more important than respecting the Polish argument of preventing damage to the natural habitats resulting from the presence of the Spruce Bark Beetle, even if its activities were about to have a serious impact on spruce trees. Poland was not able to provide reasons why the cessation of operations for only a few months is likely to cause serious and irreparable damage to that habitat.
Case C-441/17 R, p. 72–84
In the Turów case, Polish arguments seemed to be of a more weighty nature, such as the threat related to the irreversible shutdown of the Turów power station, which is dependent on lignite from the Turów mine due to its technological configuration. This was presented as a major threat to national energy security, including the supply of electricity to Polish consumers or to cross-border electricity exchange, leading to socio-economic damage caused by the impossibility of carrying out important projects in the energy field and the serious loss of jobs for the Polish labor force. However, the Court’s response was very principled - the purported harm could not take precedence over considerations relating to the environment and human health. The invoked damages of an essentially pecuniary nature could not be regarded as irreparable, as they can be compensated and capable of restoring the injured party to the situation prior to the occurrence of that damage.
Case C-121/21 R, p. 82–94
The growing case law on the rule of law, with a special emphasis on the principle of effective judicial protection guaranteed under Article 19 TUE and Article 47 CFR, has had a serious impact on the Polish system of justice since its crisis started in 2015. It has resulted in several crucial judgments, mostly preliminary rulings, but some of them were the Commission’s actions against Poland for its failure to fulfil obligations relating to the guarantees of the independence of the judiciary. Within the framework of some of these proceedings, applications for interim measures were submitted, and the orders given by the Court also contributed to the development of the understanding of the scope of Article 279 TFEU. This is definitely one of the most sensitive and fundamental areas of EU law nowadays, and therefore, the Court must have put extreme emphasis on the efficiency of the basic principles of this legal system, particularly as the Polish government tried to challenge the Court’s jurisdiction, maintaining that the organisation of justice at the domestic level or the question of the immunity of judges has not been conferred upon the Union. It was, however, left without any doubts that the respect for the independence of courts having jurisdiction in fields covered by EU law belongs to one of the member states’ leading obligations. Consequently, the CJEU must be entitled to prescribe interim measures in this area as well as to impose penalty payments if that is the only way to secure their implementation.
Case C-619/18
The proceeding was related to the newly adopted then rules on the lowering of the retirement age of Supreme Court judges, including those already in office, appointed in the past, affecting over a quarter of all of them, including the President, despite her term being protected by the Polish Constitution. The only way for them to continue their judicial service was by obtaining the consent of the President of Poland, who was not bound by any criterion or subject to any form of judicial review. In its final ruling, the Court left no doubt that it was an infringement of the principle of effective judicial protection provided by Article 19 TUE. Pending this judgment, the Commission requested interim measures - to suspend the application of these new provisions to ensure that all the judges concerned may continue to perform their duties unconditionally and enjoy the same status, as well as to refrain from appointing any new ones to replace them. They were granted first provisionally within a few weeks
Case C-619/18 EU:C:2018:852. Case C-619/18 EU:C:2018:1021.
Case C-791/19
This was the first ruling on the new disciplinary regime introduced by Polish authorities to deprive judges of independence and protect ruling party members from accountability for their actions. Part of this was the alleged lack of guarantees of the independence and impartiality of the newly established Disciplinary Chamber of the Supreme Court, which was responsible for reviewing decisions issued in disciplinary proceedings against judges. The Commission questioned this in its action, as the Chamber was specially organised and composed exclusively of new judges, many of whom were known for their close ties with ruling party politicians. These judges were selected by the new National Council of the Judiciary (KRS), which was composed in violation of the Constitution, primarily consisting of individuals supporting or dependent on these politicians. The Commission’s action was well grounded, as the legal status of this Chamber had already been undermined by the CJEU in the famous preliminary ruling A.K. (C-585/18, C-624 I 625/18) given just days before. Despite all of this, and despite the Supreme Court’s rulings implementing EU law principles, the Disciplinary Chamber continued to perform its judicial functions, and new rules on the judiciary were adopted in Poland in February 2020, further threatening the independence of the judiciary.
The failure of Poland to fulfil its obligations under Article 19 TUE in this area was established in the final ruling of the Court on July 15, 2021. The CJEU confirmed that the Disciplinary Chamber did not provide impartiality and independence and was not protected from direct or indirect influence by the Polish legislature and executive. Furthermore, the content of judicial decisions by any Polish judges could have been classified as a disciplinary offence, which could be used to exert political control over them or to pressure them in order to influence their decisions. There was no doubt that disciplinary cases were not examined by a tribunal ‘established by law’ within a reasonable time, and they could be conducted even in the justified absence of an accused judge or their defence counsel, violating their rights of defence.
Earlier, the Commission applied for an Interim Measure that was granted in April 2020, requiring Poland to suspend the application of provisions forming the basis of the jurisdiction of the Disciplinary Chamber, but only in disciplinary (not criminal) cases concerning judges.
Case C-791/19 EU:C:2020:277.
Case C-204/21
Before the previous ruling of July 2021 was issued, the Commission decided to institute one more action against Poland in April 2021 in response to increasing problems with respecting the independence of the judiciary due to revisions of national law implemented in the meantime, as well as the hostile practices of Polish authorities against numbers of judges. Therefore, the scope of that new action was much wider and more complex. The Commission questioned the Disciplinary Chamber’s jurisdiction in all cases concerning the status of the judges and the conditions of the exercise of their office, with special emphasis put on the authorisation to initiate criminal proceedings against them or to detain them. Another issue was the exclusion of the possibility for Polish courts to review the compliance by panels of judges with the requirements of being independent and impartial and the classification of such a review as a disciplinary offence. Moreover, exclusive jurisdiction for the examination of requests for the recusal of a judge from a particular case or for the determination of the question of the lack of independence of a judge or panel was conferred on another newly established Supreme Court body - the Extraordinary Review and Public Affairs Chamber - preventing other national courts from fulfilling these tasks. The ruling in this case was finally given in June 2023, mostly upholding the Commission’s charges.
The Interim Measures applied for by the Commission were granted in this proceeding on July 14th, 2021 - one day before the ruling in the previous case was given. The Court Order prescribed a series of measures and was extremely expansive, containing over 250 points and being internally compound, which makes it a particularly interesting subject of analysis. Unlike in the previously commented proceedings, each measure was separately substantiated, especially in terms of the fulfilment of the conditions of fumus bonis iuris, urgency, and the weighing up of interests.
Case C-204/21 EU:C:2021:593
Under that Order, Poland was requested to suspend the application of several national provisions. First, the provisions provide the Disciplinary Chamber with the jurisdiction of authorisation to initiate criminal proceedings against judges, place them in provisional detention, arrest them, or summon them to appear before it, along with the order to suspend the effects of the decisions already adopted by it on these matters. Second, the provisions empower the Disciplinary Chamber to adjudicate in cases relating to the status of Supreme Court Judges in cases relating to their employment, social security, as well as compulsory retirement. Third, the provisions allow the disciplinary liability of judges for having examined compliance with the requirements of the independence and impartiality of a tribunal previously established by law, within the meaning of articles 19 TEU and 47 CFR. Fourth, the provisions prohibit national courts from verifying compliance with the requirements of the EU law relating to such an independent and impartial tribunal. And fifth, the provisions establish the exclusive jurisdiction of the Supreme Court Extraordinary Review and Public Affairs Chamber to examine complaints alleging a lack of independence of a judge or a court.
Poland proved its lack of compliance with the above order, and it was not apparent from the documents received by the Court that the activities adopted by its authorities would be sufficient to ensure the implementation of the interim measures concerned. Therefore, the Commission applied a few months later to order a penalty payment in an amount likely to ensure their effectiveness, and it was granted by the Court, which ordered Poland to pay the Commission a periodic penalty payment of €1,000,000 per day until it complies with them.
Case C-204/21 EU:C:2021:878
The Court pointed out that the pleas in law relied on by the Commission raised the issue of the precise scope of Art. 19(1) TEU and 47 CFR in the context of the exercise, by a Member State, of its power to organise its judicial system. This was a difficult legal issue to which the solution was not immediately obvious and therefore called for a detailed examination not to be carried out at that stage of the proceeding, especially without giving a final ruling on the merits. In view of the so-far case law of the Court, the arguments put forward by the Commission did not appear, prima facie, unfounded. It could not be excluded that the provisions of national legislation at issue jeopardised the principles of the removability of judges and of judicial independence, and therefore, an infringement of the principle of effective legal protection was possible.
Case C-204/21 EU:C:2018:1021 p. 30–59
It was found that, even without ruling on the merits but taking into account the facts and the case law so far, the arguments concerning the lack of a guarantee as to the independence and impartiality of this Chamber appeared prima facie, not unfounded. Among other factors, its establishment coincided with the amendment to the rules on the appointment of members of the National Council of the Judiciary (KRS), which is involved in the procedure for selecting judges and responsible for ensuring the independence of Polish courts, resulting in the politicisation of that constitutional body. The Court reminded that the guarantees of independence and impartiality require rules to dispel any reasonable doubt in the minds of individuals as to the imperviousness of such a body to external factors and their neutrality with respect to the interests before it. At the same time, the national rules must preclude not only any direct influence, such as instructions on judges, but also its more indirect types, which are liable to affect their decisions. Consequently, it could not, prima facie, be ruled out that the decisions given in disciplinary proceedings concerning judges were not reviewed by a court that satisfied the requirements of effective judicial protection.
Case C-204/21 EU:C:2020:277 p 52–81
It was emphasised that the requirement that courts be independent forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, being of cardinal importance as a guarantee that all the rights that individuals derive from EU law will be protected and that the values set out in Article 2 TEU will be safeguarded. Particularly where a Member State lays down specific rules governing criminal proceedings against judges, such as concerning the lifting of their immunity, they must be justified by objective and verifiable requirements relating to the sound administration of justice and must, like the rules on the disciplinary liability of those judges, provide the necessary guarantees ensuring that they cannot be used as a system of political control over the activity of those judges. It was found that the decisions delivered in the context of the challenged regime were taken or reviewed by a judicial authority that did not satisfy the guarantees inherent in effective judicial protection, and the Disciplinary Chamber, whose independence and impartiality were not guaranteed, had jurisdiction, having a direct impact on the status of judges as well as the conditions for the performance of their office.
Case C-204/21 2021; EU:C:2021:593 p. 88–98
The Court found the plea of violation of effective judicial protection prima facie not unfounded, as the judicial review of the legality of the appointment of judges and the legitimacy of judicial bodies is necessary in order to guarantee fundamental rights. As the guarantees of access to an independent and impartial tribunal represent the cornerstone of the right to a fair trial, everyone must have the possibility of invoking an infringement of that right before any court. It is indispensable for the confidence in the courts in a democratic society that every court in the national judicial system shall be obliged to check where a serious doubt arises on that point. Furthermore, the challenged prohibition prevents Polish courts from referring to the CJEU questions for a preliminary ruling on the interpretation of the EU requirements in this area.
Case C-204/21 EU:C:2021:593 p 154–156, 170–176
The Court found that the question of the specialised court and the conditions to be met in order to guarantee the right of individuals to effective judicial protection is a complex legal issue, the answer to which is not immediately obvious and therefore requires a thorough examination, which could not be carried out by the judge hearing the application for interim relief. At the same time, it could not prima facie be ruled out that the national provisions that prevent other chambers of the Supreme Court, as well as the ordinary courts, from verifying compliance by a judge or a court with the requirements relating to the independence of judges, infringe Poland’s Treaty obligations. The Court reminded that any provision of a national legal system and any legislative, administrative, or judicial practice that might impair the effectiveness of EU law by withholding from the national court having jurisdiction to apply such law, the power to do everything necessary at the moment of its application to disregard national legislative provisions, which might prevent directly applicable EU rules from having full force and effect, are incompatible with the requirements which are the very essence of EU law.
Case C-204/21 EU:C:2021:593 p. 197–204
According to the Court, it could not prima facie be ruled out that such disciplinary liability might be incurred for the sole reason of the verification of compliance by a judge or a formation of a court with the requirements of independence, and, in particular, finding that the process for appointing a judge was irregular, and that itself could be classified as a failure by Poland to fulfil its obligation. It was reminded by the CJEU that national provisions that have the effect of preventing the national courts, whose task it is to interpret and apply EU law, from verifying, in particular, the regularity of the process for appointing a judge or a court are, prima facie, contrary to art. 19 TEU and art. 47 CFR. The same applied with respect to judges’ liability for an act described by words of a very abstract and imprecise nature like ‘manifest and flagrant breach of legal rules,’ and it could not prima facie be ruled out that such liability may be incurred because of what is alleged to be the ‘incorrect’ content of judicial decisions. All of that posed a serious threat of using the disciplinary system as a system of political control of the content of judicial decisions, especially since the ones adopted in the context of disciplinary proceedings initiated against judges are reviewed by the Disciplinary Chamber.
Case C-204/21 EU:C:2021:593 p. 219, 228–239
According to the CJEU, since the independence of the Supreme Court may not be guaranteed pending the delivery of the final judgment, it is likely to cause serious damage to the EU legal order and, thus, to the rights that individuals derive from EU law and to the values, especially considering that national supreme courts play a crucial role in the implementation of EU law at the domestic level. Consequently, for the purposes of assessing urgency, it had to be postulated that the questioned national law might have been at odds with Poland’s obligations under Article 19 TUE and 47 CFR, particularly as these provisions had already begun to produce their effects and a number of judges were forced to retire, including the First President, or depended on presidential approval. The alleged serious damage was likely to be irreparable as the Supreme Court adjudicates at the last instance, making decisions that have the authority of res judicata and are thus likely to have an irreversible effect on the EU legal order.
Case C-204/21 EU:C:2018:1021 p. 63–66, 78
The Court pointed out that, for the purposes of assessing urgency, it must be postulated that the national provisions at issue might have jeopardised the independence of the Disciplinary Chamber, being at odds with Poland’s obligations under the Treaties to ensure that decisions delivered in disciplinary proceedings brought against its judges, called upon to rule on questions of EU law, are reviewed by a body that satisfies the requirements inherent in effective judicial protection, including that of independence. The mere prospect that judges may be exposed to the risk of disciplinary proceedings before such a body was likely to affect their own independence, which would cause serious and irreparable damage to the EU legal order and the rights that individuals derive from EU law.
Case C-204/21 EU:C:2020:277 p. 84–93
In that proceeding, the condition of urgency was already supported by significant evidence. It was established that the Disciplinary Chamber had already commenced its activities in this context, and the number of applications relating to judges had increased. In cases concerning authorisation to initiate criminal proceedings against judges, from the date of entry into force of the amending law until the time of the ruling, the Chamber received tens of applications, many of which had already been examined, leading to several decisions on judges’ suspension from duty and a reduction of their remuneration. There was no doubt that the fact that the examination of these cases was within the jurisdiction of a body whose independence might not be guaranteed was likely to undermine the independence of the Polish judiciary. The mere prospect of judges being exposed to such a risk was likely to affect their own independence and raise doubts about the imperviousness of the judges who had not been subject to such decisions to any influence or external factors capable of affecting their decisions. This situation could lead to a lack of appearance of independence or impartiality that would likely undermine the trust that justice in a democratic society governed by the rule of law must inspire in individuals. This evidence was sufficient to assert the possibility of serious and irreparable damage in the light of EU law pending the delivery of the final judgment.
Case C-204/21 EU:C:2021:593 p. 119–129
The fact that the Polish courts might be prevented, pending the delivery of the final judgment, from verifying the observance by a judge or a court of the guarantees inherent in effective judicial protection was found to be liable to undermine the independence of those Polish courts. Consequently, this situation was deemed likely to cause serious and irreparable damage to the EU legal order. In a context where serious doubts were raised about the independence of the Polish courts due to legislative reforms, the application of the questioned national provisions would clearly only serve to exacerbate the existing doubts about the independence of those courts. This situation would reinforce the lack of appearance of independence of the Polish judiciary and further diminish the confidence of individuals and other Member States in the Polish judicial system. According to the Court, for the purpose of assessing urgency, it was sufficient to postulate that those provisions were likely to prevent the national courts from applying Article 19(1) TEU and 47 CFR, as well as from overriding national provisions contrary to those provisions of EU law in breach of the principle of the primacy of EU law. Especially important was the fact that compliance with the EU law obligations would require the courts to violate the national provisions in question, which could constitute a disciplinary offence.
Case C-204/21 EU:C:2021:593 p. 179–185
Based on the arguments mentioned earlier, the Court emphasised that the prohibition preventing national courts, except for the Disciplinary Chamber, from adjudicating on questions related to the independence of a judge or a court and thereby from verifying their compliance with the requirements inherent in effective judicial protection was likely to undermine the independence of the Polish courts. As a result, this situation would lead to serious and irreparable damage to the EU legal order, as previously established. Furthermore, the specific characteristics of the legal context, of which those provisions were a part, increased the risk that such serious and irreversible damage would occur. The combination of these factors highlighted the urgency and necessity of taking action to prevent the potential harm to the EU legal order.
Case C-204/21 EU:C:2021:593 p. 207–208
The Court emphasised that the possibility that the national courts could be prevented from verifying the compliance of judges or courts with the requirements inherent in effective judicial protection, combined with the potential use of the disciplinary regime as a means of political control over the content of judicial decisions, was likely to undermine the independence of the Polish courts. Consequently, this situation could cause serious and irreparable damage to the EU legal order. In response to the Polish government’s arguments that the suspension of the Disciplinary Chamber’s activities in disciplinary matters related to judges under the Interim Measures of the previous proceeding (C-791/19R) reduced the established risk, the Court pointed out that such suspension did not eliminate the possibility entirely. The mere prospect that judges might be subject to disciplinary proceedings in certain circumstances was sufficient to impact their independence. Moreover, the existence of national provisions enabling the disciplinary regime to function as a tool for political control over the content of judicial decisions cast doubt on the independence of the national courts, potentially leading to serious and irreparable harm.
Case C-204/21 EU:C:2021:593 p. 242–246
In the view of the Court, the most critical consideration in this particular case was to strike a balance between ensuring the proper functioning of the EU legal order, which could be severely and irreparably affected by the new retirement rules for judges, and the interests invoked by Poland, particularly those pertaining to the proper functioning of the Supreme Court. The solution appeared clear, as the only effect of granting the Interim Measures, even if the Commission’s action against Poland were to be subsequently dismissed, would be to postpone the application of the questioned reform. The nature of the Party’s obligations here was simply to suspend the application of the new rules, ensuring that the retirement rules previously in force remained applicable and allowing all judges to continue their service. Poland’s argument regarding the excessive difficulty in reinstating these judges due to the need for legislative intervention for the adoption of general provisions of an incidental nature not compatible with the Polish Constitution was dismissed. The Court emphasised that a Member State cannot use domestic provisions, practices, or situations to justify non-compliance with its EU law obligations. The interest evoked by Poland regarding the significant complication of the organisation of the Supreme Court’s work due to the temporary restoration of judges could not outweigh the general interest of the EU in ensuring that the Court operates under conditions that respect its independence. Finally, the argument regarding the systemic risk that the independence of the reinstated judges would not be guaranteed was also deemed unsubstantiated. The grant of Interim Measures would simply serve to maintain, for a limited period, the application of the legal system that existed prior to the adoption of the new Law on the Supreme Court.
Case C-204/21 EU:C:2018:1021 p. 94–95; 109–117
The submissions made by the Commission in this matter, which were accepted by the CJEU and reiterated in all subsequent applications, are indeed noteworthy. The Commission argued that if the Court were to uphold the action for failure to fulfil obligations after refusing to order the interim measures sought, the proper functioning of the EU legal order would be systematically affected, leading to irreparable damage to the rights derived from EU law. On the other hand, if the Court were to dismiss the action after ordering interim measures, the only consequence would be the temporary suspension of the activity of the Disciplinary Chamber. The Court emphasised that granting these measures would not lead to the dissolution of the Chamber but rather to the provisional suspension of its activity until the judgment is delivered. While the processing of cases pending before the Chamber would need to be suspended, the harm resulting for the individuals concerned from this suspension would be less than that which would result from the examination of those cases by a body whose lack of independence and impartiality cannot, prima facie, be ruled out.
Case C-204/21 EU:C:2020:277 p. 105–113
The Polish government argued that the suspension of the Disciplinary Chamber’s jurisdiction, resulting in the non-lifting of the immunity of judges, would lead to the offences committed by them becoming time-barred, allowing some offenders to avoid liability. Additionally, the government claimed that judges could be accused of being susceptible to outside influences, such as the offence of corruption. However, the Court found these arguments to be unfounded, as Poland did not provide any information about the number or proportion of decisions that would have such consequences. Furthermore, there was a lack of evidence provided by Poland to support its claim that criminal proceedings related to offences such as rape or domestic violence would be affected by the suspension, as asserted by the Polish government.
Case C-204/21 EU:C:2021:593 p. 143–147
Poland argued that the suspension of the national provisions at issue would be contrary to fundamental principles, including those arising from its Constitution, and that it would harm the interests of justice. However, the Court reiterated that the principle of the primacy of EU law prevented valid reliance on the conflict between domestic law provisions and the effects resulting from the implementation of an interim measure ordered by the Court. Even if harm to national interests were to be established, it could not outweigh the general interest of the European Union in the proper functioning of its legal order.
Case C-204/21 EU:C:2021:593 p. 190–191
Poland contended that the suspension of the national provisions providing for the jurisdiction of the Chamber would not automatically grant other national courts the authority to examine the issues reserved for the Chamber, which would undermine the right to a tribunal previously established by law and the principle of legal certainty. However, the Court emphasised that the implementation of an interim measure suspending the application of a national provision necessitates Poland to ensure the restoration of the legal situation that prevailed before the provision’s entry into force. As a result, the Member State is obligated to apply the provisions that were repealed, replaced, or amended by the provision whose application must be suspended pending the final judgment. Consequently, the balance of interests favoured the granting of the interim measures requested by the Commission.
Case C-204/21 EU:C:2021:593 p. 214–218
The arguments put forth by the Polish government in the context of the dispute on this particular measure might appear to be the most controversial, indicating the hostile approach of Polish authorities toward their own judiciary, particularly the Supreme Court. The suggestion was made that the consequence of not applying the rules challenged by the Commission, pending the delivery of the final judgment, would be that during that period, reprehensible conduct that should undoubtedly lead to the disciplinary liability of those responsible would, on the contrary, be permissible. Accordingly, according to the Polish position, the judges of the Supreme Court could engage in backdating judicial acts, concealing documents crucial for the settlement of cases, imposing penalties not provided for by law, altering decisions using methods not provided for by the procedural rules, or delivering decisions not prescribed by procedural rules, all of which could cause harm to national interests. In response, the CJEU was compelled to reiterate that the prescription of an interim measure would obligate Poland to apply, during such a period, the provisions repealed, replaced, or amended by the national provisions in question. Therefore, such a measure could not cause the type of damage on which the Republic of Poland relied.
Case C-204/21 EU:C:2021:593 p. 250–253
The analysis of the Court of Justice’s case law presented in this paper highlights the growing significance of interim measures in ensuring Member States’ compliance with EU law and averting scenarios where the effective functioning of the EU legal order is consistently undermined. The conclusions drawn from the examined rulings pertain not only to the specific cases but also hold broader implications. The relevance of this legal procedure is becoming increasingly apparent, especially in domains crucial to the overall operation of the EU legal system, placing particular emphasis on adherence to EU values.
The key, of course, is the context in which the analysed rulings were pronounced, reflecting a deliberate and systematic obstruction of the fundamental principles of the EU legal order. This order cannot function effectively, especially without ensuring effective legal protection, particularly of independent and impartial courts. This is crucial for the exercise of rights by EU citizens, the implementation of the preliminary ruling procedure, and the functioning of the Area of Freedom, Security, and Justice, based on the automatic recognition of judgments of all national courts. As demonstrated by the presented case law on environmental protection, the challenge to the rule of law was not the only area where Polish authorities decided to contest their EU commitments. Both of these fields may seem distant, yet they are crucial for the integration process, and a similar approach by national authorities confirmed the existence of a systemic defect in Poland, even challenging the jurisdiction of the Court of Justice.
The European Commission, as the guardian of the Treaties, had to counteract this crisis, making extensive use of actions for the failure of Poland to fulfil its obligations under the Treaties, as provided in Articles 258-260 TFEU. This also allowed the Court itself to expand its understanding of general principles. The proceedings presented in this paper concerning the protection of the rule of law concluded with judgments confirming the validity of the allegations, and the interim measures imposed within their framework can be considered as solutions of a universal application to ensure judicial independence. Thus, Poland has also contributed to the issuance of judgments significant for the overall development of EU law to a degree comparable to the case law in other key areas that was achieved in the past, while also enabling the further expansion of the powers of EU institutions.
The jurisprudential achievements regarding interim measures would not have been possible if the filing of complaints by the Commission automatically prevented Poland from continuing to violate EU law during the ongoing proceedings, which became increasingly evident in the light of subsequent judgments. Although the imposing of these measures has long been foreseen in the Rules of Procedure of the Court of Justice and has occurred in the past in proceedings against Member States, it has not been on such a scale or with respect to the foundations of the EU legal system. In this area as well, the CJEU has gained the opportunity to confirm and develop its understanding of this legal instrument, which is worth seeing in an even broader context. Interim measures are increasingly being utilised by other international courts, especially the European Court of Human Rights. Hence, in the author’s opinion, it was worthwhile to undertake a detailed analysis of how the Court perceived the admissibility of imposing interim measures, especially how it interpreted the criteria for it, which can be succinctly summarised here.
Due to the distinct nature of the issues concerning the protection of the rule of law and the environment, interim orders issued in their context have been presented separately in this paper, as their specificity played a significant role in justifying the application of specific solutions. However, to a lesser extent, the existence of a more unified approach can be observed, especially regarding the understanding of the issue of “prima facie,” which, incidentally, proved to be very liberal. For the Court, it was sufficient to determine that the arguments presented by the Commission did not, prima facie, appear unfounded, and the possibility that Poland violated EU law in the context of a complex legal matter of significant disagreement was not immediately apparent, requiring a detailed examination not to be conducted at the early stage of the proceedings. In the proceedings on the rule of law, it was additionally pointed out that the threat to the independence of judges, the politicisation of the judiciary, and the violation of effective legal protection were more than evident in light of the Court’s previous judgments.
The urgency of the situation in the context of the actions taken by Poland regarding the logging in the Białowieża Forest and the exploitation of resources in the Turow mine stemmed from a significant likelihood of irreparable and serious damage to the environment and health - irreversible even in the case of a subsequent judgment finding a violation of the law. Regarding the independence of the judiciary, this criterion required a more profound justification, especially considering the expanded scope of interim measures in proceedings in this area. According to the Court, as the independence of judges could not be guaranteed pending the delivery of the final judgment, Polish courts might have been prevented from verifying the observance of the guarantees of effective judicial protection during that time. This was likely to cause serious damage to the EU legal order and the rights of individuals derived from it. The mere prospect of judges being exposed to the risk of disciplinary proceedings, as possible in Poland, combined with their potential use as a means of political control over the content of judgments, could lead to the same result.
Weighing up interests and establishing priorities did not require elaborate justifications in environmental cases, as the aforementioned threat to the environment and health had to prevail over mostly economic interests. In the case of the independence of the judiciary, the Court was called to strike a balance between more complex issues. On the one hand, there was the need to ensure the proper functioning of the EU legal order, threatened by the application of national rules that could cause damage to the rights derived from it. On the other hand, there were interests invoked by Poland related to the functioning of the Supreme Court and fundamental principles of the national Constitution, as well as the interests of justice, despite the Court pointing out that the primacy of EU law prevented valid reliance on the conflict between domestic law and the effects of interim measures. Finally, the solution was quite clear as the only effect of granting measures the Commission applied for was to postpone the application of the questioned reforms and temporarily suspend the activity of the Disciplinary Chamber. For the Court, even if any harm to national interests were to be established, it could not outweigh the general interest of the EU. Finally, regarding the suspension of the application of provisions constituting the basis for holding judges criminally responsible, which would ensure their impunity, arguments evoked by Poland were disqualified as it provided no information about the number or proportion of decisions to have such consequences.
The achievements presented in this article are worth examining from a broader perspective, as ensuring the effectiveness of judgments by international courts is a challenge for the international community. The approach of Polish authorities demonstrated that the EU is not immune to this, although the refusal to execute interim orders was a kind of precedent linked to attempts to contest the jurisdiction of the Court as such. Of course, other EU Member States have sometimes failed to comply with its judgments, but this usually involved delays, not a complete refusal to recognise them, and it concerned solutions of a less fundamental nature. Never before has any Member State done this with this type of order, and the EU system was unprepared for such a challenge. Therefore, there were no provisions explicitly addressing such a situation, which would ensure effective enforcement despite the fact that challenging the authority of courts poses a threat to the rights of individuals derived from EU norms and the interests of other member states, essentially undermining the foundations of the EU identity.
Therefore, it is necessary to accept that ensuring the effectiveness of EU law in this dimension justifies adopting even such a solution that raises controversies due to the creative interpretation of the law and the further expansion of the powers of the Court. Finding a remedy for systemic deficiencies that do not have direct support in the clear wording of existing provisions is nothing new in this legal order, and it is worth recalling principles of EU law that are now considered obvious and were developed in a similar way. This applies to the primacy of Community law, especially understood as authorisation for national courts to independently refuse to apply national provisions conflicting with this law, often contrary to the requirements of obtaining prior approval from constitutional courts. Similarly, the mutual recognition in the internal market and the obligation to fully open national markets were based on very general provisions prohibiting only vaguely specified restrictions on the free movement. In a similar way, the Court granted itself the competence to interfere with the procedural autonomy of states by invoking the principle of effective legal protection, even when it was not explicitly included in the Treaties, as it is now in Article 19 TEU. In the context under discussion, it is finally worth noting the evolution of the understanding of Article 260 TFUE, which provides for the legal consequences of Member States’ noncompliance with the Court’s judgments. According to its clear wording, the Court may impose a lump sum or penalty payment on such a state, and that was originally understood as an alternative allowing the imposition of only one of these measures in the same case, not both simultaneously. However, gradually, the understanding prevailed that the non-execution of the same judgment can result in imposing them together.
That last provision deserves mentioning here, as it clearly allows for the imposition of financial sanctions on a state, but only in a judgment of the CJEU and when it concerns the non-execution of its previous judgment or legislative directive. However, it is silent about the possibility of issuing a temporary order prescribing such a sanction for non-compliance with interim measures established earlier in the same proceedings. Yet, this is precisely what the Court decided to do in some cases presented in this paper when it turned out that measures of this kind were not voluntarily executed by Poland, prescribing penalty payments accruing for each subsequent day until the issuance of the proper judgment. However, this was done on a different legal basis, namely Article 279 TFUE, which is generally applied in interim proceedings, allowing the Court to “prescribe any necessary interim measures.
The general formulation of this provision is typical for many EU Treaties provisions, leaving a considerable scope of discretionary power, the exercise of which is also characteristic of the case law practice of the CJEU. On this basis, the Court has so far imposed a wide range of measures, obliging states, for example, to refrain from applying certain provisions of national law or administrative practices. However, there was no need to specifically secure their execution as the state’s addressees tried to comply with them. It was only the approach adopted by the Polish authorities that forced the adoption of a new interpretation, according to which the term “any necessary” should be understood as also encompassing penalty payments.
It seems that the above solution can be considered acceptable in essence, as there is no reason why a Member State that does not respect any CJEU judgments could remain unpunished, and their effectiveness was at risk. However, the issue remains the amount of penalty payments set in the presented judgments, which in one order reached the level of 1 million euros per day. Therefore, one can simultaneously share the doubts raised in this regard, as these amounts are many times higher than those imposed by the Court under Article 260 TFEU, where they typically revolve around tens of thousands of euros per day. Even if one assumes that the fines under Article 279 TFEU have a special purpose of urgently preventing irreversible harm during the proceedings, this disproportion still seems glaring, although, of course, the threat to the foundations of the functioning of the European Union justifies a particularly stringent approach.
IC Kaminski, ‘Kary Zabezpieczające w Polskich Sprawach (Kopalnia Turów, Wymiar Sprawiedliwości) – Wiele Wątpliwości’ [2022] LEX.