Text by Anna Wójcik

It is inadmissible for national laws to expose national judges to the risk of disciplinary action being brought against them for requesting a preliminary ruling, held the Court of Justice of the EU on the 23rd of March in joined cases C‑558/18 and C‑563/18.

According to the CJEU, the threat of conducting such proceedings can actually adversely affect judges of EU Member States in exercising their fundamental right (and duty) to pose questions to the CJEU, as well as to apply EU law in cases at hand.

The Grand Chamber reiterated that under the EU law, EU Member States are required to introduce effective guarantees to protect judicial independence – and therefore must ensure that disciplinary proceedings will not be conducted against judges for posing questions to the CJEU.

However, the Grand Chamber of the CJEU decided that it cannot respond to requests for a preliminary ruling submitted by Judge Igor Tuleya and Judge Ewa Maciejewska for procedural reasons.

Tuleya and Maciejewska asked if such a disciplinary system of liability for judges, in which judges are afraid that they will be subjected to disciplinary penalties for a decision that is issued, is in compliance with EU law.

The Grand Chamber could not answer these questions because they were asked on the basis of criminal cases to which EU law did not apply, and therefore there was no ‘EU connection’ which constitutes the grounds for a national judge submitting a question to the CJEU in the specific case under consideration.

Furthermore, the questions were of a general nature – at the time they were asked, they still applied to a hypothetical possibility of repression of judges by disciplinary proceedings for asking questions.

Judges Tuleya and Maciejewska were subjected to repression, including in connection with asking these questions of the CJEU, after they had been submitted.

This is not the end of examining the judicial ‘reforms’

The significance of today’s ruling is explained by deputy Ombudsman Dr. Maciej Taborowski:

“The CJEU ruled that it cannot answer specific preliminary questions that were put before it by national courts in the case at hand. The Advocate General of the Court also said so in September 2019. Today’s ruling is no surprise, because it is consistent with the way in which the CJEU has understood its competence to issue judgments in preliminary reference proceedings.

However, a great deal of information can be inferred from the Court’s position, which should encourage the authorities to think more carefully about their actions against judges

The questions of the courts concerned disciplinary proceedings, but, firstly, they were asked in cases that did not have an EU element and, secondly, the disciplinary provisions were not the direct object of the assessment of the national courts in the cases pending before them.

This is why the Court in Luxembourg considered these questions to be of a general nature. Meanwhile, the CJEU is able to answer questions asked in connection with a specific case with an EU connection being settled by a national court.

However, the importance of these questions to the Court itself is evidenced by the fact that the whole of the Grand Chamber of the CJEU made the decision. This means that the questions of the national courts themselves gave rise to serious considerations about the limits of the competence of the CJEU in preliminary ruling proceedings.

The CJEU clearly emphasized that the domestic courts had satisfied all the requirements procedurally set for requests for a preliminary ruling under the Rules of Proceedings of the Court of Justice. Therefore, they did not err. The questions applied to the limits of the ability of national courts to cooperate with the Court in preliminary ruling proceedings.

The only obstacle to answering these questions was the legal framework of the preliminary ruling procedure. However, it is not a mistake to attempt to give EU laws a new interpretation intended to provide greater protection of judicial independence.

This is how the Court of Justice and national courts are developing the EU legal system.

The CJEU simultaneously stated that, in principle, Article 19 (1) of the Treaty on European Union, about which the national courts were asking, can actually apply to disciplinary proceedings. It held that it has the jurisdiction to interpret Article 19 (1) TEU with regard to the questions asked, although the questions themselves are inadmissible.

In this context, this is a very important judgment.

First of all, it protects judges. The CJEU categorically stated that, even if the national court requests a preliminary ruling on the basis of a case under consideration, but in a way that requires the CJEU to declare such a question inadmissible, disciplinary proceedings cannot be conducted against such a court. Even the ‘vision’ itself or the risk of such proceedings being initiated as a result of the dialogue conducted by the national court with the CJEU is unacceptable.

Secondly, the CJEU ruled that disciplinary proceedings against judges may be assessed in connection with the fact that they apply to a breach of judicial independence protected by Article 19(1) TEU.

This means that, in other cases, judges may ask the CJEU whether disciplinary proceedings breach judicial independence. However, this issue must be directly adjudicated upon by a national court.

Thirdly, other proceedings are pending before the CJEU in connection with judicial independence in Poland. The Court of Justice of the EU will decide on the issues raised by Judges Tuleya and Maciejewska in a binding manner in the judgment in the European Commission’s complaint about the model of disciplinary liability for judges in Poland.

This EU law infringement procedure initiated by the Commission is more appropriate for deciding on the general compliance of national laws with EU law, in isolation from a specific dispute.

We are waiting for the decision of the CJEU on the application of an interim measure in these proceedings, which should be made shortly.*

Additionally, the Polish courts have referred a dozen or so requests for preliminary rulings to the CJEU. For example, in the cases regarding Judges Waldemar Żurek and Monika Frąckowiak, the Supreme Court asked the CJEU what impact on the independence of judges the significant breach of national law has in the context of the procedure for appointing judges.

We also have a question asked by a disciplinary court of attorneys from the Warsaw Bar regarding the role of the system of disciplinary liability applicable to attorneys-at-law.

This is not the end of the CJEU’s review of elements of the judicial ‘reforms’ conducted after 2015 in Poland in terms of EU law. We are in the middle of this process,” sums up Dr. Taborowski.

Wawrykiewicz: an important verdict for the independence of judges

Despite the ideologized interpretation by the pro-government media, from the point of view of the defenders of the rule of law in Poland, the judgment of the Court of Justice of the EU of 26 March is favourable – like the opinion of CJEU Advocate General Yevgeny Tanczew issued in September 2019.

Michał Wawrykiewicz, a lawyer from the Free Courts initiative and one of the co-founders of the Justice Defense Committe (KOS) assesses:

‘The Court of Justice of the EU approaches the preliminary ruling procedure very formally and has shown this today. It refused to answer these particular questions because it assessed that, at the time they were asked, the case was hypothetical.

Several important issues arise from the judgment for Polish judges:

• the CJEU has the jurisdiction to assess whether disciplinary proceedings are in conflict with the principle of judicial independence, which is protected by EU law;
• disciplinary proceedings cannot be instituted against judges for asking questions of the CJEU; asking such questions cannot be a disciplinary offence in Member States;
• meanwhile, the Muzzle Actintroduces such an offence! This is because it stipulates that the offence is an ‘obvious and gross breach of the law’, which can be interpreted by the disciplinary commissioners, for example, as a refusal to apply the provisions of national law and pose a question to the CJEU.

If the European Commission files a complaint with the CJEU about the Muzzle Act – which I hope will happen shortly – it will certainly use the justification of the CJEU judgment of 26 March to argue that the shameful Muzzle Act is in breach of the European legal order.”

Preliminary questions as a fundamental right of judges

In an interview given to Rule of Law in Poland on 9 January 2019, the President of the CJEU, Prof. Koen Lenaerts, emphasized that:

“When the CJEU accepts that a request for a preliminary ruling is inadmissible, nobody can be blamed for this, and certainly not the national court that submitted the request. Lawyers are well aware of the existence of borderline cases in which both sides can be argued. A lawyer who loses such a case is not a bad lawyer. The same applies to a judge whose request for a preliminary ruling was declared inadmissible.”

*The decision of the CJEU regarding the application of interim measures is expected in early April (editor’s note).

Translated by Roman Wojtasz