Tuesday 26 November 2019

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.

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.


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
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