National Courts, Judicial Independence, and the Risk of Getting It Wrong

 

Darren Harvey, Senior Lecturer in Law, Kings College London

Photo credit: Lukas Plewnia, via Wikimedia Commons – see also  www.polen-heute.de

Introduction

Much has been written in praise of the Court of Justice’s role in promulgating legally binding obligations pertaining to judicial independence on the basis of Article 19(1) TEU. To ensure effective legal protection in the fields covered by Union law, Member States must ensure that all national courts which may rule on the interpretation or application of Union law meet the requirements of independence, impartiality and previous establishment by law.

But might there be a trap door built into the rather impressive stage that the Court has been constructing in recent years? I happen to think so. Simply stated, my concern is this – what happens when national courts try to interpret and apply the manifold legal principles flowing from the CJEU’s judicial independence case law and get things wrong?

The stakes have recently been raised by the CJEU’s confirmation in AW “T” that provisions of national law may need to be declared null and void as a matter of domestic law whenever they infringe EU judicial independence standards. This includes lower-instance courts being obliged to find decisions of hierarchically superior national courts to be null and void.

Thus, in the name of protecting the rule of law, one now faces the very real prospect of national courts (either in good or in bad faith) expunging measures from their domestic legal systems on the basis of an erroneous application of EU judicial independence standards.

The Risk of National Courts (incorrectly) Policing Judicial Independence

The recently decided Daka case offers a good illustration of the concerns at play here. The case concerned decisions taken by the President of a national court to re-assign judges from one chamber to another chamber of that court. Those re-assignment decisions were taken without the consent of the re-assigned judges, did not contain any reasons and did not seem to be open to judicial challenge. Furthermore, the appointment of the court President issuing the relevant decisions was itself incompatible with Article 19(1) TEU. These factors prompted a national court, composed of re-assigned judges, to refer questions on the compatibility of the above with Article 19(1) TEU. In response, the CJEU surprised commentators (here and here) by finding that the re-assignment decisions of the non-independent court President were compatible with judicial independence standards flowing from Article 19(1) TEU.

But what if, instead of seeking guidance from the CJEU, the national court in Daka had concluded, not unreasonably in my view, that the re-assignment decisions were contrary to EU standards of judicial independence? In light of the abovementioned development in AW “T.” , a national court in a position similar to that in Daka might plausibly conclude that that national measure must be declared null and void.

The problem, however, is that we know that in Daka itself such a finding would have been incorrect as a matter of EU law. And it is here, I submit, that a possible trap door becomes partially visible. The problem stems from the role that EU law requires national courts to play in defending judicial independence on the ground in the Member States. According to settled case law, “the guarantees of access to an independent and impartial tribunal previously established by law, and in particular those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. That right means that every court is obliged to check whether, as composed, it constitutes such a tribunal where a serious doubt arises on that point…such a check is an essential procedural requirement, compliance with which is a matter of public policy and must be verified of the court’s own motion,.” There is also an “inextricable link” between the requirement of access to a court or tribunal previously established by law and the guarantees of independence and impartiality of judges. Finally, the requirements of judicial independence flowing from Article 19(1) TEU are capable of direct effect and must, therefore, be dutifully applied by national courts. It follows that the main responsibility for ensuring compliance EU judicial independence standards lies with national courts, whether in relation to their own independence, or the independence of other courts.

Consider in this regard the recent judgment on whether Article 19(1) TEU precluded national rules on setting national judicial salaries. In that case, the CJEU set down several very detailed principles that must henceforth be considered when national authorities enact rules for setting national judicial salaries. These principles also form the basis of any subsequent judicial review. They are intended to be applied by national courts to national rules and practices. Accordingly, what would prevent a national judge from incorrectly applying those principles in a future case and deciding, as a result, that national rules on judicial salaries must be disapplied or even declared null and void? And what if that national judge erroneously finds a violation of Article 19(1) TEU in such a case, without ever having referred the matter to Luxembourg? Crucially, the wide-ranging scope of application of Article 19(1) TEU means that virtually all national laws and practices touching upon the organization of justice within the State could now suffer a similar fate. Thus, far greater disruption can be caused to national legal orders by a misapplication of EU judicial independence principles than in other areas of EU law. There is a world of difference between a national court erring in its application of EU law governing free movement of workers, say, and the same national court erring in its conclusion that the national supreme court lacks independence under Article 19(1) TEU standards, with all the consequences that that may now entail.

It is worth dwelling on what those consequences might now be for national justice systems. As Dougan points out, disapplication is an individual remedy provided by a national court to resolve a particular dispute. Once disapplied, the national law in question remains in existence and operation for all other purposes. In contrast, declaring a provision of national law to be null and void is a remedy of general effect and application. The relevant national provision, once nullified, ceases to exist, including for all other purposes. Thus, Dougan notes that nullity is “a very different, more robust and more far-reaching, response to incompatibility than disapplication.” The former “carries potentially widespread and more penetrating implications within and across the national legal system, for example as regards the impact on other relationships, and for other powers or actions, as well as for third parties.” Admittedly, the circumstances in which this novel remedy of nullity will be required as a matter of Union law remain uncertain. Nonetheless, there would appear to be more at stake for the functioning of national justice systems in a world where national courts may declare measures of national law to be null and void.

One must also be attentive to an altogether more worrying prospect that, I believe, is now in play here. In the name of EU judicial independence standards, lower-instance courts may utilise these developments to disapply or invalidate judgments of hierarchically superior national courts. It is perfectly foreseeable that, in some national legal orders, first instance courts and tribunals will be far more susceptible to having their independence eviscerated by the ruling executive than apex courts in that state. In circumstances where the constitutional or supreme court remains independent, but the lower courts do not, Article 19(1) TEU, coupled with the primacy principle, can now be used (in bad faith) by those captured lower courts to effectively neutralize decisions of their (independent) superior courts that would otherwise be binding upon them. Again, this can be done (disingenuously of course) in the name of upholding EU standards of independence.

Case C‑448/23, Commission v Poland (Polish Constitutional Tribunal) as a Possible Solution?

Now, the response here might be to fall back on the classic doctrines of EU law. The risk that national courts might err in their application of EU law has always been a structural feature of the EU legal system. There is nothing novel or surprising about EU law disrupting national judicial hierarchies. The above may be nothing more than an extension of Simmenthal to the rule of law context.  Moreover, tools such as Article 258 TFEU infringement proceedings and actions for state liability in damages serve to mitigate against these risks. It may also be possible to appeal against a judgment of a national court that allegedly misapplies Article 19(1) TEU, and for any appellate court to subsequently refer the matter to Luxembourg. However, all these corrective mechanisms have shortcomings that will be familiar to readers of this blog.

It is with this in mind that we can turn, in closing, to the recent CJEU judgment concerning the Polish Constitutional Tribunal. In my view, the judgment makes some important points about the role of national courts in ensuring compliance with Article 19 TEU standards, particularly in light of the problem I have identified above. The judgment hints in places (paras 102-120) at a solution to those problems that would centralize review in Luxembourg. The Court stresses that it has exclusive jurisdiction to give definitive and binding interpretations of EU law, including the requirements flowing from Article 19(1) TEU. Then, “in order to ensure the uniform application of EU law in all the Member States, as is required by Article 19(1) TEU, those requirements cannot depend on the interpretation of provisions of national law, or on the interpretation of provisions of EU law by a national court, which does not correspond to that of the Court (para 210, emphasis added). Thus, Article 267 TFEU sets up a system of judicial dialogue between national courts and the CJEU with the aim of securing the uniform interpretation of EU law. “This is consequently the path that a national court must take when it has doubts as to the compatibility of national law with a provision of EU law requiring interpretation of the latter.” (para 212, emphasis added). Moreover, the obligation upon national courts to disapply any national rule that is inconsistent with Article 19 TEU arises “in the event of an established infringement of the second subparagraph of Article 19(1).” (para 115, emphasis added). Finally, the obligation to declare provisions of national law to be null and void is said to arise when “a national court or tribunal which has referred a question to the Court for a preliminary ruling” and subsequently “concludes that it is apparent from all the conditions and circumstances” that national law is incompatible with Article 19(1) TEU (para 120).

To my mind, these passages hint in the direction of finding that national courts must refer questions to Luxembourg whenever they harbour doubts as to the compatibility of national law with Article 19 TEU standards. How else would a national court ensure that it did not arrive at an interpretation of Article 19(1) TEU that does not correspond to that of the CJEU? How else might a national court determine that there had been an “established infringement” of Article 19(1) TEU before disapplying or nullifying the infringing provision of national law? Such a centralized solution, if confirmed, would essentially extend the Foto-Frost obligation to refer to Luxembourg questions of validity of national law when they arise in relation to Article 19(1) TEU. Such a solution would certainly mitigate against the risks of national courts causing major disruption to the organization of national justice systems whenever they incorrectly apply EU judicial independence standards. However, it would sit uncomfortably with the structure and wording of Article 267 TFEU, which affords lower-instance national courts with a discretion to refer (or not refer) questions of interpretation to Luxembourg. It would also sit uncomfortably with the obligation that direct effect and primacy place on all national courts to give full and immediate effect to Article 19(1) TEU standards by disapplying inconsistent provisions of national law. The alternative reading is that determinations of whether national rules and practices comply with Article 19(1) TEU standards remains a task that is primarily for national courts, most of whom are not obliged to refer such matters to Luxembourg.

Conclusion

The above is an attempt to articulate what I take to be a difficulty in the law of judicial independence as it currently stands. There is always a risk in such endeavours that one is identifying a problem that does not really exist. Perhaps there is no trap door built into the stage. It is also possible that the problem identified does exist, but is not as significant or difficult to solve as the above analysis might suggest. To be corrected on either of these points would be very helpful. It would mean that the stage rests on a firmer foundation than first feared. Alternatively, the above analysis might well be on to something. If that proves to be true, it will at least offer the consolation of being persistently troubled about the right sort of thing.

Fake Judges are Great Administrators! A New Word on Judicial Independence from CJEU in T.B. v. C.B.

 

Dimitry Kochenov, CEU Democracy Institute

Photo credit: Charles J Sharp, via Wikimedia commons

Past summer was marked by further deterioration of the Rule of Law standards in the EU, especially weakening judicial independence. In T.B. v. C.B. the Court of Justice of the European Union (CJEU) ruled that unlawfully appointed judges on lawfully established courts, although presumably unable to adjudicate, can nevertheless be great administrators. Since they are not sitting as judges when deciding on internal adminsitrative matters within their courts (86), and since the establishment of the court, which the unlawfully appointed individuals infiltrated is grounded in law, Article 19 TEU and the EU Charter do not prevent them from terrorising lawfully appointed judges on the same court, since, in the words of the CJEU, ‘such measures do not constitute a means of exercising control over the content of judicial decisions’ (88). To fall short of EU law standards it is thus not sufficient for a fake person posing as a judge ‘appointed […] under the conditions which are incompatible with the requirements arising from the second sub-paragraph of Article 19(1) TEU’ (100) to abuse lawfully appointed members of the court she has infiltrated: she also has to order those abused to reach particular substantive outcomes, when they are judging, since we cannot doubt the independence of the lawfully appointed judges (89), who are being abused by the impostors harnessing the administrative powers on the court they have usurped.

The case is a rare and interesting example of deference in a field marred by untamed judicial activism and hands a clean victory to those willing to abuse the very idea of judicial independence in direct breach of national and ECHR standards. The bottom-line is humiliatingly absurd. The CJEU states explicitly that whether someone is actually a lawfully appointed judge or not in the sense of Article 19 TEU is of no relevance in the light of EU law in the context of administrative matters pertaining to the management of a Member State court, where Article 19 TEU and Article 47 of the Charter are applicable. The idea of internal judicial independence in the sence of shielding judges from direct interference with the organization of their activities by known unlawful appointees only pretending to be judges, has thus been declared as not a matter of judicial independence or concern in the light of the application of the principle of Rule of Law as expressed in Article 2 TEU. Moreover, the fact that an unlawfully appointed individuals interfere with the work of a real judges by doubling such judges’ workloads (33) and assigning the real judges to sit on the panels dealing with matters outwith of their expertise and with no consultation or consent of the judges concerned (28), as well as with no means to appeal such decisions, is of no relevance, as per the CJEU (100), for the preservation of the EU value of the Rule of Law and, in particular, judicial independence, in accordance with Articles 2 and 19 TEU.

Although this case was somewhat lost in the harvest of other summer suprises, in particular Commission v. Malta, which has eliminated liberal and empowering EU citizenship as we thought we knew it, as I have argued with Guillermo Íñiguez in the pages of the ELRev., T.B. v. C.B. is of potentially immense importance, adding to the significant track-record of deep ambiguity, and half-heartedness, marking CJEU’s engagement with this area. This ambuguity goes back to the Sharpston cases, where the Court has denied itself structural independence from the Herren der Verträge in a contra-legem move I analysed in the ELJ with Graham Butler and the Getin Noble Bank case law, analysed in JCMS in cooperation with Petra Bárd, as well as by Barbara Grabowska-Moroz where the Court established that a fake judge named as such in a final instance decision of the Polish Supreme Court (as well as ECtHR) sitting on a lawfully established court as a panel of one does not diminish the standing of that court in the context of the operation of preliminary references under Article 267 TFEU. In other words, the Court has a long-standing track-record of aiding the actors sowing abusive constitutionalism and ‘ruling by cheating’ in András Sajó’s word. The ‘salami’ principle, introduced by the Court following an ill-conceived opinion of AG Bobek as he then was, now allows even 100% unlawfully composed courts, just as in Getin Noble Bank, to benefit from a newly-established presumption of kosher-illegality, invented by the Grand Chamber in contradiction to the long-established principle that it is up to the Court itself to decide who among the national judicial actors is to be regarded as a ‘court or tribunal’ able to refer. Broberg and Fenger have exhaustively analyzed in their Magnum Opus, which now needs significant watering down, following recent Court’s departure from long established law to the detriment of the promise of Articles 2 and 19 TEU.

What emerges is not only a double duality, as it were, which includes the solidification of double standards in terms of a principled departure from the well-established requirements of Article 6 ECHR, as the Court has done in relation to own composition too, in the Sharpston cases – Opinion 2/13 on steroids – but also pretending that due process guarantees differ depending on the Treaty provision in action in a particular case. To be a ‘court’ under Article 267 TFEU is thus much easier than to remain such in the face of all the harmful government mingling, when Article 19 TEU enters the picture.

Both dualities are as artificial as they are principally wrong. This is because to pretend that Articles 19 and 267 refer to some different Courts is an obviously dishonest and impermissible misinterpretation of the Treaties in violation of Article 6 ECHR standards. This is because, as I explained in more detail in the pages of the Cambridge Yearbook of European Legal Studies, allowing an Article 19 TEU non-judge to be considered a lawful court in the sense of Article 267 TFEU lands a victory to all those supporting attacks against judicial independence: a kangaroo court, is then – under cover of a presumption not grounded in the Treaties and newly-invented by the CJEU for this very purpose – enters a ‘judicial dialogue’ (sic!) with the CJEU. The absurdity here is that, plainly, dialoguing with a non-judge cannot be qualified as ‘judicial dialogue’ and is only lawful in the eyes of the CJEU since the latter is, to the astonishment of many, pretends not to be bound by Article 6 ECHR, thanks to the low point of its own doing: Opinion 2/13. Whatever the non-judge appointed in violation of Article 6 ECHR does on the bench, where that person is not supposed to be, as part of dialoguing with CJEU is thus ok, among all the Courts of the European continent, only and solely for the CJEU – not for the lawfully established and appointed national courts and not for ECHR, for whom such double standard would be unthinkable.

The result is amusing to say the list: the ECJ makes a strict distinction between an unlawfully appointed judge (even if sitting alone), and an unlawfully established court – all this almost on the assumption that the two are somehow not connected to each other. A variety of interesting combinations is possible here, all of them in violation of the ECHR case-law, which is as clear as day, as Laurent Pech also explained: a court, whose composition is tainted by an unlawful appointment is not a court of law. We have seen the results that the CJEU’s inability to align itself with such most basic ECHR standards produces: a court with an unlawfully appointed member is ok (think of a fake ‘AG’ tainting CJEU’s composition following the Sharpston cases); a court sitting as a panel of one, with the one judge being unlawfully appointed is also fine for the purposes of Article 267 TFEU (Getin Noble Bank) but a court chamber, which is as a whole created in breach of the law and staffed 100% by unlawful appointees, is not acceptable under Article 19 TEU and does not enjoy the capacity of issuing decisions producing legal effects (‘R’S.A. v. AW ‘T’ sp. Z o.o.). The bottom-line is that hijacking existing courts by staffing them with fake judges is acceptable to the CJEU, while forming new courts and chambers in breach of the law and staffing them with similarly fake judges is not ok. It goes without saying that the outcome is essentially the same and comes down to a square violation of Article 6 ECHR either way.

T.B. v. C.B. pushes the absurdity of this shameful approach to the extremes: when the court itself is lawfully established, but fake judges have hijacked all the key administrative positions and use this to abuse the lawfully appointed members by interfering with their workloads is not a violation of EU law, it is perfectly fine to let the impostors harass the actual judges. CJEU thus passively assists the attacks against lawfully appointed judges, constantly extending the baseless Getin Noble Bank presumption, which now also covers the context where a known fake judge, posing as a court administrator purposefully doubles workloads of lawfully appointed judges. In fact, the facts described are deemed by the CJEU ‘irrelevant in this regard’ (90) and should not lead us to doubting the independence of the court in question (89). The Court has thus clarified that helping fake individuals posing as judges to terrorize lawfully appointed members of lawfully established Member States’ courts is now one of the functions of Article 19 TEU: this is EU law.

The Commission’s position here is most surprising. The institution argued that the case was not even admissible (59) clearly mindlessly and irresponsibly playing on the abusers team. In the end, this is just what the CJEU ended up doing, by pretending that the harassment of lawfully appointed judges by impostors having no right to sit on the courts in question, who came to occupy administrative positions on lawfully established courts, is of no relevance to the judicial independence standards of Article 19 TEU, 47 CFR and Article 2 TEU. Agreeing with the Commission’s proposal could at least help the Court to save face. It chose the opposite: it is now the law that known impostors appointed as ‘judges’ in breach of the standards of Article 19(1) TEU are great court administrators and this has no implications for judicial independence and the Rule of Law in the EU.

 

Judicial Independence and the European Arrest Warrant. Systemic Challenges and Ways Forward

 

 

Dr Leandro Mancano, Senior Lecturer in EU Law, Edinburgh Law School

 

This blogpost is based on Leandro Mancano, ‘You’ll never work alone: A systemic assessment of the European Arrest Warrant and judicial independence’, in Common Market Law Review, Volume 58, Issue 3 (2021) pp. 683 – 718

 

Introduction

 

The European Arrest Warrant Framework Decision (EAW FD) has changed the landscape of inter-state cooperation in criminal matters within the EU (for its ‘external’ impact, see the Court of Justice’s judgments in Petruhhin – see discussion here – and IN).

 

The EAW implements the principle of mutual recognition in criminal matters. An arrest warrant issued by Member State ‘A’ (issuing state) and addressed to Member State ‘B’ (executing state) against person ‘X’ should be recognised and executed by the latter – with subsequent surrender of ‘X’ from ‘B’ to ‘A’ - without further formalities unless grounds for refusal apply. Automaticity in judicial cooperation rests on the principle of mutual trust: in this context, the rebuttable presumption that member states, save in exceptional circumstances, comply with fundamental rights. Unlike extradition, the EAW – and mutual recognition in criminal matters more broadly - place cooperation entirely in the hands of the judiciary.

 

Against that background, judicial independence represents a pre-condition for the healthy functioning of the mechanism. In a system operating on the basis that trust and surrender are the rule, the identification of the exceptions and their modus operandi is key to its proper understanding. The relentless undermining of judicial independence in Poland, perpetrated by the national government, has led – directly or indirectly – to the creation of a body of law on judicial independence in the framework of the EAW which has broad systemic implications. This blogpost explores the role and meaning of judicial independence in the EAW.

 

The Concept of Judicial Authority: Between Independence and Effective Protection

 

The multifaceted relevance of judicial independence in judicial cooperation begins – logically and chronologically – with issuance of the EAW. Firstly, there is the independent judicial supervision that must be guaranteed throughout the EAWs procedures – from issuing to execution - to ensure effective judicial protection. Secondly, there are the requirements that the issuing judicial authority must possess to issue a valid EAW.

 

Since an EAW must be based on a national arrest warrant (Article 8(1)(c) EAW FD), the effective judicial protection must be guaranteed during procedures related to both the (1) national, and (2) European, arrest warrants. The judicial authority competent to issue an EAW must review observance of the conditions necessary for the issuing of the warrant - including its proportionality. Such a level of protection must be ensured even where the EAW is based on a national decision delivered by a judge or a court. Where the EAW was issued by a judicial authority that is not itself a court or tribunal, that decision must be capable of being the subject to judicial review.

Public prosecutor can be considered judicial authorities – even though they are not courts or tribunals - as long as there are statutory rules and an institutional framework capable of guaranteeing their independence, and preventing their exposure to external directions. Even if the public prosecutor was exposed to the risk of instructions from the executive in the specific case at the basis of the EAW, the warrant could be validly issued in the presence of effective judicial supervision (see, by contrast, the approach taken in the case of the European Investigation Order). Such oversight, which could take the form of e.g. judicial review of the EAW decision, must be in place in the issuing State and activated before execution of the EAW.

 

The Exceptional Circumstances Doctrine: The Level of Probability Required by the Two-Step Test

 

The EAW FD mandates (Article 3) or allows (Article 4) the executing judicial authorities to refuse execution of the arrest warrant and surrender in certain cases. Most of these exceptions do relate to fundamental rights (e.g. ne bis in idem), but their wording clearly points to, for example, possible issues of coordination between different States’ laws. They are not concerned with a Member State’s systemic failure of fundamental rights protection. The suspension of the EAW vis-à-vis a Member State by the European Council is mentioned in recital 10 (non-legally binding) of the Framework Decision, and requires a finding of serious and persistent breach of the EU values. This reveals, perhaps, the EU legislature’s confidence in the Member States’ capacity for maintaining the rule of law standards required by EU membership. No specific or general clause is provided for in the text of the FD, allowing a national court to refuse surrender due to concerns related to the person’s fundamental rights in the issuing State.

 

Relying on Article 1(3) EAW FD, the Court has introduced a two-step test to challenge the presumption of mutual trust. The test was firstly devised in the context of inhuman and degrading treatments (see the judgment in Aranyosi and Căldăraru) and then applied to cases where the independence of the judicial authority issuing the EAW was in doubt. The Court found that, as a first step, the executing judge must verify the existence of systemic deficiencies, in the issuing State, of the right to an independent tribunal. Secondly, precise and specific elements must show that systemic deficiencies are liable to have an impact at the level of the State’s courts with jurisdiction over the proceedings, and substantial grounds must emerge for believing that the person will run a real risk, having regard to their personal situation, the nature of the offence involved and the factual context at the basis of the EAW (see judgment in LM, discussed here).

 

The test has been criticised because of its allegedly insurmountable nature, compounded by the Court’s recent ruling where it stated that systemic deficiencies alone do not constitute sufficient ground to refuse execution. The present author submits that, while not easily met, the standard of proof of the real risk must not be understood as near certainty. Semantic accuracy and the Court’s wording suggest that these two levels of probability not be conflated. Relatedly, the features that the evidence must possess (precision and specificity) must be understood together with the milder level of probability of the consequences attached to them (liable to impact the competent court). Furthermore, the areas from whence the substantial grounds must emerge (personal situation, nature of the offence, factual context) are indicative and not cumulative. The test is not as constrictive as it might seem, and the executing authorities have certainly leeway when assessing the real risk to the person’s right to an independent tribunal.

 

Conclusion

 

Judicial independence is the cornerstone of the rule of law and judicial cooperation in criminal matters, including the EAW. At the very least, independence must be guaranteed to the judicial authority which: supervises the issuing and executing EAWs procedures; has jurisdiction over the proceedings in the issuing State after surrender. On the one hand, the Court requires that independence of the issuing authority be protected by statutory rule and institutional frameworks, failing which an EAW cannot be validly issued. On the other, the ECJ distinguishes the latter scenario from lack of independence caused by systemic deficiencies in the issuing State, in which case the EAW is valid in principle and the executing court must carry out the two-step test to refuse surrender. The two situations might indeed be different and are to do with two different bodies (issuing v trying authority).

 

The Court’s approach is – if not justified – explained by systemic considerations. The tenability of the statutory rules/systemic deficiencies distinction might prove hard to uphold for much longer, however, and especially in a context where the undermining of judicial independence in Poland shows no signs of receding. A related issue, not yet brought to the fore but with the potential to shake things up, concerns the scenario where the supervising body in the issuing State is not adequately protected by statutory and institutional safeguards. These questions, jointly with the proper interpretation of the level of probability of the two-step test mentioned above, lie at the core of the EAW mechanisms and might be the protagonists of this existential saga on judicial independence and EU cooperation in criminal matters.

 

Barnard & Peers: chapter 25

JHA4: chapter II:3

Photo credit: Jebulon, via Wikimedia Commons

Polish ruling party’s "fake judges" before the European Court of Justice: Some comments on (decided) Case C-824/18 AB and (pending) Case C-132/20 Getin Noble Bank

 

 

Laurent Pech, Professor of Law, University of Middlesex 

 

On 2 March 2021, the European Court of Justice issued its third judgment in a preliminary ruling case originating from a Polish court regarding Poland’s rule of law breakdown which began more than five years ago (a total of 35 national requests for a preliminary ruling have been submitted by Polish courts to compare to a total of 3 infringement actions lodged with the Court by the Commission to date).

 

In this judgment known as AB and others, the Court of Justice’s interpretation of EU law makes it unequivocally clear that the referring court will have to conclude that Polish authorities violated EU law when they changed Polish law to prevent effective judicial review of the judicial appointment decisions made by Poland’s new National Council of the Judiciary (“KRS” hereinafter), which was re-established in flagrant breach of Polish Constitution and has since been suspended from the European Network of Council for the Judiciary due inter alia to its lack of independence.

 

One may however expect the Court of Justice’s judgment in AB to know the same fate as the Court’s judgment in AK (Joined Cases C‑585/18, C‑624/18 and C‑625/18), which was the first judgment adopted in response to a national request for a preliminary ruling originating from a Polish court. AK was swiftly and defiantly ignored by Polish authorities after Poland’s Supreme Court (the independent components of it) applied it and held the KRS to lack independence and the infamous “Disciplinary Chamber” not to constitute a court. In reaction, Polish authorities adopted a “muzzle law” which, in a nutshell, unconstitutionally “legalised” the violation of the Court of Justice’s judgment in AK, which has since been furthermore nullified by the unlawfully composed “Constitutional Tribunal” and the unconstitutionally established “Disciplinary Chamber”. And yet the Commission did not react in the face of this delinquent behaviour. It similarly did not react to the flagrant violation of the ECJ order of 8 April 2020 regarding the “Disciplinary Chamber”. And while the Commission did launch an infringement action against the muzzle law at the end of April 2020, we are still waiting for the Commission to refer it to the ECJ. Meanwhile, irreparable damage to the rule of law is done with the Commission only seemingly able to produce a feeble “let-me-explain-to-you-what-you-yourself-live-through” reply to a letter from more than 5,000 judges asking it to decisively act at last.

 

Unsurprisingly, the Commission’s procrastination, not to say to dereliction of duties, has been understood as a sign of weakness by current Polish authorities, which is why they are now actively preparing the ground for the systemic violation of the Court’s judgment in AB. Adding insult to injury, the Commission has recently indicated its unwillingness to do its job as Guardian of the Treaties in a case originating from one of the growing number of individuals unlawfully appointed to Polish courts. This pending case, known as Case C-132/20, is the first ever preliminary ruling request submitted by a “fake judge”. Coincidence or not, the hearing in this case took place on 2 March 2021, the same day the Court of Justice issued its judgment in Case C-824/18.

 

1. Doing the Job: The Court of Justice

 

The Court of Justice’s judgment in AB is both rich and significant which makes a brief presentation of this case challenging. That caveat aside, the AB judgment’s most important contribution to the defence of the rule of law in the EU is the confirmation that EU Member States must respect EU requirements relating to judicial independence when they decide to change the rules governing the process of appointing judges and connected rules governing judicial review of judicial appointment decisions.

 

National authorities cannot therefore seek to hide behind the national constitution, which Polish authorities continue to routinely violate with impunity following their unconstitutional takeover of Poland’s Constitutional Tribunal, to adopt arbitrary substantive conditions or procedural rules in respect of judicial appointments; deprive a national court of its previous jurisdiction; to force the discontinuation of ongoing appeals and/or prevent national courts from referring questions on judicial appointments to the Court of Justice.

 

Another important aspect of the Court’s judgment is its finding – implying a manifest breach of the EU principle of sincere cooperation – that Polish legislature adopted the amendments in dispute with the deliberate aim of systemically preventing the Court from ruling on the questions referred to it by Poland’s Supreme Administrative Court. Also unprecedented is the Court’s more general denunciation, albeit in diplomatic terms, of Polish authorities’ bad faith and lawless behaviour as they have repeatedly sought to curb preliminary ruling requests from Polish courts and prevent any effective judicial review of the (unlawful) judicial appointment resolutions adopted by the (unconstitutionally established and unlawfully composed) new KRS.

 

In this context, and for the first time, the Court of Justice denounced the “retrograde impact” of the legislative amendments in dispute and the unlawful behaviour of the Polish President who blatantly ignored a freezing order of Poland’s Supreme Administrative Court to (unlawfully) appoint eight “usurpers” to Poland’s Supreme Court. Another noteworthy aspect of AB is the mention of the possibility for the referring court to consider inter alia the existence of special relationships between the members of the KRS thus established and the Polish executive when assessing the independence (or rather lack thereof) of the individuals appointed to the Supreme Court in open violation of the Supreme Administrative Court’s freezing order. The existence of this “special relationship” has already been solidly established.  

 

The inescapable conclusion from the Court’s judgment – but one to be confirmed by the referring court assuming it will not be prevented from doing so – is that Polish authorities have organised the systemic violation of EU (rule of) law and deliberately presided over the manifestly unlawful appointment of multiple individuals (who cannot therefore be called “judges”) to the Supreme Court.

 

The Court’s AB judgment does arguably suffer from two key weaknesses: It does not tackle the issue of these manifestly unlawful judicial appointments by directly relying on the right to a tribunal established by law, which would arguably make it even clearer that we are not dealing with judges here rather than judges lacking independence; it fails to make clear that Poland’s Constitutional Tribunal is no longer a court as it is unlawfully composed (the former president of the German FCC accurately described it as a “puppet”) while the Court of Justice also fails to explicitly address the violation and nullification of its own judgment in AK.

 

Notwithstanding these weaknesses, AB is a welcome and important judgment regarding EU law and national judicial appointment procedures. Unfortunately, AB will not in and of itself halt the deliberate annihilation of judicial independence organised by current Polish authorities for two main reasons: The limitations inherent in the preliminary ruling jurisdiction of the ECJ which require independent judges to subsequently apply its preliminary rulings and eventually set aside national law if a violation of EU law is confirmed; the Commission’s repeated failure to do the job.

 

2. Not doing the Job: The Commission

 

The Court’s judgment is AB indirectly demonstrates the Commission’s persistent failure to do its job as Guardian of the Treaties. In addition to constantly acting in a too little too late fashion on the enforcement front, the Commission appears to have decided to be as unhelpful as possible in rule of law-related preliminary ruling cases by adopting the most possibly narrow interpretation of the scope of application of the principle of judicial independence.

 

In Case C-824/18, the Commission has essentially argued the opposite of what the Court of Justice eventually decided by arguing, inter alia, that neither Article 19(1) TEU nor Article 267 TFEU preclude the legislative amendments in dispute. For the Commission, EU law would only be violated in a situation where there is a “structural rupture in the [judicial] appointment process”. What “rupture” means here escapes me but the intent appears clear enough: to only offer service minimum when it comes to defending judicial independence. This means inter alia avoiding difficult problems by pretending that they are not serious enough to warrant action or that they do not exist as the Commission did in pending Case C-132/20. This is a less well known case which however deserves to be more widely known. It is, to the best of our knowledge, the first ever national request for a preliminary ruling request submitted by an individual who has, in my view, been manifestly unlawfully appointed to a judicial position (more background here). Not content to undermine the judiciary at home, this is the first time an autocratic government is seeking to corrupt an EU procedure which is supposed to be for judges only.

 

Leaving aside the ludicrous questions submitted by this usurper who is for instance questioning the lack of independence of Polish judges appointed before 1989, the Court of Justice is indeed now faced with a national request submitted by an individual who benefited from an appointment procedure whose flagrant irregularities have just been outlined by the Court of Justice in Case C-824/18, including the flagrant violation of an order issued by Poland’s Supreme Administrative Court.

 

Yet rather than mounting a strong defence of the view that the reference submitted by this individual is inadmissible as it was not submitted by a court, what did the Commission argue at the hearing on 2 March 2021? Well, it failed to take a clear stance regarding the lack of independence of the referring individual ignoring inter alia that his appointment directly follows from the open disregard of a court’s binding interim order. Worse, the Commission did not raise any objection with respect to the “established by law” criterion suggesting instead that the reference came from Poland’s Supreme Court and could therefore be presumed to come from a proper court.

 

This (flawed) logic must have delighted Poland’s autocratic government. Not only would this approach allow the current ruling party to ignore the case law of the ECJ regarding the review of judicial appointments marred by manifest procedural irregularities, it would also mean that the fake judges it unlawfully put in place can then seek to legitimise themselves by seeing their (bogus) requests for a preliminary ruling heard and decided by the ECJ. They could then claim on Poland’s State TV, the one routinely used to smear independent judges: “See, even the Court of Justice recognises our judges as proper judges”. While Caligula may not have succeeded with his (alleged) intentions of making his horse a consul in the Roman Senate, thanks to the Commission’s line of reasoning, Duda would be able to get away with appointing those who have so incompetently managed Poland’s state-owned stud farms to the Supreme Court. The Commission’s failure to protect the very integrity of the system of legal remedies laid down in the Treaties is irresponsible. Let’s hope the Court will see the utmost importance of not offering autocrats a potentially new option to gangrene the EU legal order from within by flooding the Court with bogus requests from their fake judges.

 

 

The depressing picture which emerges from the above is that we are currently in the worst of all possible worlds. First, the Commission continues to act in a too little too late fashion on the enforcement front with Case C-824/18 a striking example of measures the Commission ought to have targeted but did not. This is leaving no choice to national judges but to risk their professional and family life to refer to the Court of Justice unlawful measures the Commission is irresponsibly refusing to challenge. Second, the Commission appears keen to undermine national requests raising judicial independence issues submitted by independent judges under siege by refusing to adopt a rule of law enhancing interpretation of EU law and/or its scope. Case C-824/18 being a case in point. Third, the Commission has now refused to strongly challenge the admissibility of a preliminary ruling request submitted by one of the Polish ruling party’s fake judges who are now openly and actively colluding with the PiS-led executive to finish off judicial independence once and for all.

 

Fear not however as the death of judicial independence in Poland will be reported in the Commission’s Rule of Law Report, if not in its forthcoming second edition, in its third edition scheduled for 2022.

Photo credit: User Darwinek, via Wikimedia Commons 

Writing Between the Lines. The preliminary ruling of the CJEU on the independence of the Disciplinary Chamber of the Polish Supreme Court.

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.

The opinion of the Advocate General

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