Sébastien
Platon, Professor of Public Law, University of Bordeaux
On November 18, the Court of Justice
of the European Union issued its much-awaited ruling
in the A.K. case regarding the
independence of the judiciary in Poland, and more precisely the independence of
the Disciplinary Chamber of the Polish Supreme Court and, incidentally but very
importantly, of the Polish National Council of Judiciary (hereafter the “NCJ”),
in the context of the rule of law backsliding that this country has been
experiencing since 2015. The ruling in question probably fails to meet the high
expectations that the case had generated, since it does not clearly state whether
or not the two institutions are independent from the Government. Instead, the
Court leaves the referring court with the task of making a final determination
on the matter. However, the Court of Justice also provides elements of
interpretation in order to help the referring court in this task and, while
doing so, quite clearly hints that, in its mind, it is very unlikely that the
NCJ and the Disciplinary Chamber, as they stand, can pass the test it set up
in order to assess their independence. The consequences this ruling will have
in Poland are yet to be determined.
Background
and context
Since it became the majority party
in the Polish Parliament in 2015, the Polish ruling party, PiS, has undertaken
a methodical strategy aimed at curtailing the independence of the judiciary in
Poland through a series of so-called judicial “reforms”. These reforms
triggered various reactions from the European Union, both judicial and
extra-judicial. After nearly two years of unfruitful “dialogue” with the Polish
Government under the “EU
Rule of Law Framework”, the European Commission triggered in December 2017
the procedure laid down in Article 7(1) TEU and proposed
to the Council to determine that Poland is at a “clear risk of a serious
breach by a Member State of the values” of the European Union. In parallel with
this procedure, which still has not come to an end two (more) years later, the
Commission also initiated a series of infringement proceedings against Poland
in connection with its judicial “reforms”. Two of these proceedings came
recently to an end, with two rulings in which the Court found that the lowering
of the retirement age, with immediate and compulsory effect, of the judges of the
Polish
Supreme Court (commented on here)
and of the Polish
ordinary courts was in violation of the EU standard of independence of the
judiciary. However, judicial challenges of the Polish reforms also came before
the Court of justice from inside Poland, in the form of references for
preliminary rulings. This was the case here.
The root of the dispute is the same
2017 Polish Law on the Supreme Court which lowered the retirement age of judges
of the Supreme Court, with immediate effect, leading to a finding of
infringement by the Court of Justice. However, in the present case, another
aspect of this legislation was at stake. The 2017 Law also created a new
Chamber within the Supreme Court, the so-called “Disciplinary Chamber”, which
was given jurisdiction, among others, over disciplinary proceedings involving
Supreme Court judges, proceedings in the field of labour law and social security
involving Supreme Court judges and proceedings concerning the compulsory
retirement of a Supreme Court judge. The Law also provides that, until the day
on which all the posts in the Disciplinary Chamber have been filled for the
first time, judges of the Supreme Court shall be appointed to the Disciplinary
Chamber by the President of the Republic of Poland on the proposal of the
National Council of the Judiciary – allowing the President to pack the
Disciplinary Chamber in the meanwhile.
On the same day, another Law was
adopted that amended the way the members of the NCJ are appointed. Among the 25
members of the NCJ, the 15 who used to be elected by their peers are replaced,
with immediate effect, by 15 members elected by the Sejm (the lower chamber of
the Polish Parliament), and therefore by the ruling party, who enjoys an
absolute majority there. This obviously raises important questions concerning
the independence of this body vested with important powers over the Polish
Judiciary, to the extent that, on the 17th September 2018, the General Assembly
of the European Network of Judicial Councils decided to suspend its Polish member on
the grounds that, as a result of the recent reforms in Poland, it was no longer
independent.
The national proceedings were
initiated by several judges who were affected by the lowering of the retirement
age with immediate effect. One of them submitted a declaration to continue in
his post but the NCJ expressed a negative opinion, which he challenged before
the Chamber of Labour Law and Social Security of the Supreme Court. The other
two were also affected by the immediate application of the new age of
compulsory retirement, but they did not submit declarations to continue in
their posts and lodged actions before the Chamber of Labour Law and Social
Security of the Supreme Court.
The Chamber of Labour Law and Social
Security of the Supreme Court had jurisdiction to examine appeals against NCJ
resolutions and disputes arising from the employment relationship of Supreme
Court judges prior to the entry into force of the 2017 Law on the Supreme
Court. The 2017 transferred this jurisdiction to the Disciplinary Chamber.
However, on the dates that the orders for reference were made, no judges had
been appointed to the Disciplinary Chamber, so it did not in fact exist. This
mere transitional issue was however resolved by the time the Court ruled. Shortly
after the adoption of the orders for reference, the President of the Republic
appointed the judges of the Disciplinary Chamber, which has now been formed. More
importantly, the Chamber harboured doubts as to whether the procedure for the
selection of judges to the Disciplinary Chamber offers sufficient guarantees of
independence as required under EU law, given that the judges must be appointed
by the President of the Republic on a proposal of the NCJ, whose composition is
now primarily determined by the legislative and executive authorities. In this
context, the Chamber of Labour Law and Social Security wished to know whether
it could disapply the provisions of national law precluding it from having
jurisdiction in the disputes.
AG Tanchev first had to establish
the Court’s jurisdiction, which he did on two grounds. First, the applicants in
the main proceedings were alleging a breach of the prohibition against
discrimination on grounds of age, as protected by Directive 2000/78. Therefore,
according to Article 51(1) of the Charter of Fundamental Rights as interpreted
in the Åkerberg
Fransson judgment, the situation
fell within the scope of EU Law, which means that the Charter applied, in
particular its Article 47, which guarantees the right to an effective remedy
and to a fair trial, including the right to be judged by an independent
Tribunal. Second, the AG considered that the question fell in any case under
the scope of Article 19(1) TEU, second subparagraph (“Member States shall
provide remedies sufficient to ensure effective legal protection in the fields
covered by Union law”), which, as groundbreakingly interpreted by the Court in its
Associação Sindical dos Juízes
Portugueses ruling
(commented on here),
means that any national court that may be called upon to rule on questions
concerning the application or interpretation of EU law must meet the
requirements of effective judicial protection, including the requirement of
judicial independence, irrespective of whether the Member States are
implementing Union law within the meaning of Article 51(1) of the Charter.
AG Tanchev then had to address the
admissibility of the preliminary references which, in this case, was not obvious.
On the 19th October 2018, and again on the 17th
December 2018, in the context of the infringement proceedings initiated by
the Commission against Poland concerning the lowering of the retirement age of
Supreme Court judges, the Court of Justice ordered Poland to suspend the
contested provision and to take all necessary measures to ensure that the
judges concerned by those provisions may continue to perform their duties in
the positions which they held on 3 April 2018, the date on which the Law on the
Supreme Court entered into force, while continuing to enjoy the same status and
the same rights and working conditions as they did until 3 April 2018. The
President of the Polish Republic then immediately signed a new Law stating that
a) the new age of compulsory retirement only applied to judges of the Supreme
Court who took office after the date of entry into force of the 2017 Law, b)
any judge of the Supreme Court or a judge of the Supreme Administrative Court
who had been retired pursuant to the 2017 Law was reinstated in their functions,
and c) the performance of their duties was deemed to have continued without
interruption. This meant that the main proceedings had lost their object because
the forced-retired applicant judges had been “de-retired”. Were the preliminary
references still relevant then? It has to be noted here that the AG’s reasoning
on this matter is significantly shorter and more superficial than the Court’s
reasoning in its ruling. In substance, AG Tanchev merely takes note of the
statement by the referring court that a) its questions concern problems not
dealt with by the Law of 21 November 2018, b) that law does not repeal ex tunc
the disputed national provisions and their legal effects and c) Article 4 of
that same law restricts the possibility to obtain answers to the questions
referred and cannot be used as a legal basis for closing the proceedings.
After a few interesting (but not
relevant for the case) developments on the distinction between the standard of
independence under Article 47 of the Charter and Article 19 TEU, on the one
hand, and the standard of independence as a condition to be met by a national
body in order to be considered a “court” in the context of the preliminary
reference procedure, on the other hand, the AG then proceeds to analyse the
substance of the case. This is where the opinion becomes increasingly damning
for the Polish NCJ.
The AG focuses most of his analysis
on Article 47 of the Charter alone. Anchoring its reasoning in the case-law of
the European Court of Human Rights, he considers that the conditions in which
judges are appointed play a major role in their independence. Therefore, even
though a judicial council does not itself carry out the role of a court, and
even though there is no single model that a State is bound to follow in setting
up a judicial council, if a judicial council has a role in appointing judges,
it must itself be sufficiently independent from the legislative and executive
powers. To that effect, it should in principle be composed of at least a
majority of judges elected by their peers to prevent manipulation or undue
pressure. Furthermore, in order to guarantee the continuity of functions, the
mandates of the members of judicial councils should not be replaced at the same
time or renewed following parliamentary elections. The AG goes then on to apply
these principles to the case, and easily finds that, despite a ruling of the
(captured) Polish Constitutional Court saying otherwise, the NCJ is not
independent, and therefore neither is the Disciplinary Chamber.
It is worthy of attention that the
AG addresses Article 19 TEU separately, and sets a rather different standard in
this regard. Even though the Court never said so, especially in its two
previous rulings against Poland, the AG seems to consider, like he did in his opinion
on the most recent Commission v Poland case, that violation of Article 19
TEU requires more than a mere violation of the independence of the judiciary
but a “structural or generalised infirmity which compromises the essence of
judicial independence”. This obviously is a much more demanding standard than
Article 47 of the Charter. Yet – and again, this is a rather damning finding –
the AG considers that this threshold is reached in the present case because a)
the Polish legislation instituting the Disciplinary Chamber is intimately bound
up with the legislation lowering the retirement age of the judges, which
affected Supreme Court judges in a general manner, b) the NCJ “provides a
gateway for a high degree of influence of the political authorities on the
appointment of Supreme Court judges which affects the structure of the Polish
judiciary in generalised terms” and c) given the importance of the jurisdiction
of the Disciplinary Chamber, its structural lack of independence potentially
prejudices the prospects of Supreme Court judges reaching the newly fixed
retirement age of receiving a fair hearing from an independent tribunal to
challenge the measures against them.
AG Tanchev then quickly concludes,
in a few paragraphs, that the referring Court is entitled, due to the primacy
of EU law, to set aside the national rules that give jurisdiction to the
Disciplinary Chamber.
The
ruling
Unlike the AG, the Court finds most
of the questions admissible but not all. Concerning the two cases in which the
judges who had been forced to retire did not submit declarations to continue in
their posts, the Court considers that whether or not the 2018 Law has indeed
deprived the main proceedings of their substance is irrelevant because, in any
case, the referring court needs to solve a procedural problem which it must
answer in limine litis, since that problem relates to the jurisdiction of that
court to hear and rule on those cases. Furthermore (but the Court is a lot
vaguer here), the Court considers that some substantial problems concerning the
issue whether or not the applicants in the main proceedings continued to be in
an employment relationship with the Supreme Court between the entry into force
of the 2017 law and the entry into force of the 2018 law may still need to be
solved. Therefore, the mere fact of the entry into force of the 2018 Law did
not mean that it was beyond doubt that a declaration that there was no need to
rule on the cases before the referring court was appropriate. However, the
Court dismisses as inadmissible the questions in the case where a judge was
challenging the negative opinion of the NCJ. According to the Court, there was
no doubt that the challenged opinion was now invalid, due to the 2018 Law, and
therefore it was no longer necessary for the Court to rule on the questions
referred in Case.
More strikingly, unlike the AG, the
Court does not explicitly find that the NCJ lacks independence but leaves this
determination to be made by the referring court. However, when the Court of
justice then provides the referring court with the elements of interpretation
necessary to reach this determination, it is rather obvious that the Court
considers that neither the NCJ nor the Disciplinary Chamber are independent. In
a very lengthy, detailed reasoning, the Court quotes abundantly the case-law of
the European Court of Human Rights, refers frequently to the doctrine of
appearances (there should not be any reasonable doubt in the minds of
individuals as to the independence of judges) and acknowledges the “cocktail
effect” that several seemingly innocuous measures may have when combined. In a
small cascade of rather devastating paragraphs (143 to 145), which would
deserve to be quoted in extenso, the Court raises extremely serious doubts (to
put it mildly) as regards the way the members of the NCJ were appointed, the
way it exercises its constitutional responsibilities and the effectivity of the
judicial review open against its resolutions. Furthermore – and in this regard
the Court goes further than the AG – the Court also raises doubts as regards
the Disciplinary Chamber itself. The Court notes in particular that a) the
assignment of cases such as the present ones to the Disciplinary Chamber took
place in conjunction with the adoption, which was highly contentious, of the
rules setting a new age of compulsory retirement with immediate effect, b) the
Disciplinary Chamber must be constituted solely of newly appointed judges,
thereby excluding judges already serving in the Supreme Court and c) the
Disciplinary Chamber enjoys a particularly high degree of autonomy within the
Supreme court.
The Court then turns to the question
whether the principle of the primacy of EU law requires the referring court to
disapply those provisions of national law which confer jurisdiction to rule on
the cases in the main proceedings on the Disciplinary Chamber if it does not
indeed meet the requirement of independence. After recalling its
well-established case-law on the matter, and that the right to an effective
remedy and a fair trial enjoys direct effect, the Court finds, rather
unsurprisingly, that, where it appears that a provision of national law
reserves jurisdiction to hear cases to a court which does not meet the
requirements of independence or impartiality under EU law, in particular, those
of Article 47 of the Charter, another court before which such a case is brought
has the obligation to disapply that provision of national law, so that that
case may be determined by a court which meets those requirements and which,
were it not for that provision, would have jurisdiction in the relevant field.
Comments
In sharp contrast with AG’s opinion,
the Court’s reasoning on the admissibility of most of the preliminary questions
is lengthy and detailed. However, it lacks a bit in consistency to be totally
convincing. In order to admit two of the three questions, the Court insists on procedural
issues. In short, even if, due to the entry into force of the 2018 Law, the
only possible outcome is to close the proceedings, there is a procedural
question left open: should the case be rejected on the grounds of irrelevance
or of lack of jurisdiction? If the Disciplinary Chamber is independent, then
the Chamber of Labour Law and Social Security cannot set aside the national
rules of jurisdiction, and therefore can only reject the applications based on
its lack of jurisdiction. If the Disciplinary Chamber is not independent, then
the Chamber of Labour Law and Social Security can set aside the national rules
that give jurisdiction to the Disciplinary Chamber and consider that it has
jurisdiction itself – even if is only to close the proceedings because the
applications have lost their object, which it will be for it to assess. This
reasoning is both bold, in that it allows a preliminary reference to be
admissible even though the main proceedings have mostly lost relevance, and orthodox,
in that the preliminary references are only admissible because answering them
is necessary for the referring court. No small feat. Yet, this begs the
question why then the Court rejects the third question. After all, the same
reasoning could apply concerning the application against the negative opinion
issued by the NCJ: the referring court needed to know, in limine litis, if it
had jurisdiction.
The only difference we can see between this question and the
two others is that, in the two admissible questions, the Court considers that
there might still be some substantial issues left unanswered by the 2018 Law,
like the exact nature of the relation, from a labour law point of view, between
the judges and the Supreme Court between the entry into force of the 2017 Law
and the entry into force of the 2018 law. By contrast, the Court considers that
the 2018 Law has repealed all the administrative proceedings stemming from the
application of the 2017 Law. Therefore, the challenged opinion of the NCJ was,
beyond any doubt, invalid, leaving no substantial loose ends needing tying up.
It seems, therefore, that the procedural argument is not sufficient per se to
justify the admissibility of a question, which also requires some substantial
supplement. In a way, it does weaken an otherwise strong and smart reasoning.
The sharpest contrast between the
AG’s opinion and the ruling of the Court is however, of course, in the
findings. Whereas the AG positively concludes that neither the NCJ nor the
Disciplinary Chamber are independent, the Court applies a degree of
self-restraint and leaves this finding to be made by national courts. The Court
had already dodged the question of the independence of the NCJ in its ruling
about the lowering of the retirement age for the judges at the Supreme Court,
in which the issue of the role of the NCJ also played a role. One could argue
that this is inherent to the preliminary reference procedure, whereby the Court
of justice cooperates with the national court but does not rule on the case in
its place. Yet, this did not prevent the AG from being more assertive. Yet
again, it did not prevent the Court, in Associação
sindical dos juízes portugueses and in Vindel,
to provide a clear (although negative) answer as to whether the national
measures at stake were affecting the independence of the judiciary. It seems
here that the Court is trying to protect itself both from the accusation of
unduly interfering with domestic affairs and of shying away from addressing
important issues. The middle ground that the Court sought to reach here has
more to do with judicial politics and diplomacy than with legal reasoning. In
any case, the Court will have to address the question frontally in the context
of the ongoing
infringement proceedings against Poland regarding the new disciplinary
regime of judges.
Another noticeable aspect of the
ruling is that Article 19 is relatively side-lined. It probably has to do with
the fact that, since the applicants were complaining about a violation of
Directive 2000/78, the case clearly fell within the scope of EU Law and,
therefore, of Article 47 of the Charter. The Court only mentions Article 19 in
a few paragraphs at the end of the ruling, only to say that “the principle of
the effective judicial protection of individuals’ rights under EU law, referred
to in the second subparagraph of Article 19(1) TEU, is a general principle of
EU law which is now enshrined in Article 47 of the Charter, so that the former
provision requires Member States to provide remedies that are sufficient to
ensure effective legal protection, within the meaning in particular of the
latter provision, in the fields covered by EU law” and that “in those
circumstances, it does not appear necessary to conduct a distinct analysis of
Article 2 and the second subparagraph of Article 19(1) TEU, which can only
reinforce the conclusion already set out in paragraphs 153 and 154 above, for
the purposes of answering the questions posed by the referring court and of
disposing of the cases before it.”
Although understandable, this path
deprives the Court of the possibility of clarifying the exact meaning and implications
of this provision. For example, the Court does not
explicitly refute (nor does it endorse) the high standard set by AG Tanchev for
finding a violation of Article 19, that of a “structural or generalised
infirmity which compromises the essence of judicial independence”. Surely, by
insisting on the substantial proximity between Article 47 and Article 19, the
Court suggests that the two standards are the same, but a clarification would
be welcome. Surely again, the Court says clearly that it would have reached the
same conclusion by using Article 19, but again, so did AG Tanchev.
More importantly maybe, it would
have been useful if the Court had clarified whether Article 19 enjoys direct
effect or not. In the part of the ruling dedicated to primacy, the Court refers
several times to its recent Popławski
ruling, in which the Court stated, in an unprecedently clear fashion as far as
I can tell, that “a provision of EU law which does not have direct effect may
not be relied on, as such, in a dispute coming under EU law in order to
disapply a provision of national law that conflicts with it” (para 62).
Therefore, in a case with no connection with EU Law, and therefore where the
Charter does not apply, would it be possible for a court to disapply a national
rule for violation of Article 19? On the one hand, the similarity of meaning
between Article 47 and Article 19 suggests that if Article 47 is clear, precise
and unconditional enough to be of direct effect, so is Article 19. Yet, it
could also be argued that Article 19 is more an objective provision creating an
obligation for Member States to ensure effective legal protection, but not
necessarily a right for individuals to such protection, in the meaning of
direct effect. And even if Article 19 does have direct effect, the question
would be left open of the exact scope of the ousting effect. Is Article 19 to
be used to disapply completely national measures that affect the independence
of judges, or only to the extent that said judges apply EU Law? And does this
distinction even make sense, given that questions of EU law can always arise at
any point during the procedure, even when the case does not prima facie raise
questions of EU Law? Here again, a clarification would be welcome.
Concluding
remarks
Caution can be the enemy of
efficiency. The Court tried to avoid the accusation of taking the role of
national courts in adjudicating the main dispute. Yet, it also tried to get its
message through: that the appointment of the members of the NCJ is deeply
problematic, that it contaminates the independence of Disciplinary Chamber,
that the Disciplinary Chamber is also problematic on its own right. It would
take a lot of bad faith to pretend not to have heard this message.
Unfortunately, it seems that bad faith is something the Polish Government is
not in short supply of. Shortly
after the ruling, Polish President Andrzej Duda said the ruling
demonstrated the CJEU's refusal to directly address the questions raised by the
applicants against the PiS reforms, while PiS Justice Minister Zbigniew Ziobro,
the main architect of the reforms, said the CJEU ruling met his expectations,
and that it meant that “the CJEU is not competent to judge matters related to
the organisation of the Polish judicial system and has sent the ball back to
Poland's court” – which, it must be emphasised, is completely inaccurate since
the Court did acknowledge its own jurisdiction on the matter.
Meanwhile, the
Disciplinary Chamber continues its activities, and recently reached a new low
by convicting
a judge for the content of one of her rulings. It is now therefore for the
Chamber of Labour Law and Social Security of the Supreme Court to make a final
determination based on the indications of the Court of Justice. If it finds
that the NCJ is, indeed, not independent, it could in theory have far-reaching
consequences, given the importance of the powers that the PiS “reforms” have
given to the NCJ over the Polish judicial system. However, it is to be feared
that the matter may be removed from the Supreme Court in favour of the
(captured) constitutional tribunal, as hinted by certain declarations of
Zbigniew Ziobro. If the story does indeed unfold in such fashion, it will only
prove that the Government is now in full control of the Polish judicial system,
and that those of the Polish judges who try to resist the collapse of the rule
of law have their hands tied. It would be a clear signal to the Court that it
just cannot afford to tiptoe anymore, and that it has to adopt clearer, bolder
stances.
Luckily, it will have the opportunity to do so since, as mentioned
before, the European Commission decided,
on the 10th October, to refer Poland to the Court of Justice of the EU
regarding the new disciplinary regime for Polish judges, requesting an
expedited procedure. Surely, whatever the outcome of this recent ruling will be
back in Poland, it will be taken into account by the Court of Justice when
issuing its judgment in the new infringement proceeding.
Barnard & Peers: chapter 9
Photo credit: news.yahoo.com
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