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