CJEU: disciplinary action against judges for asking questions of the Court is unacceptable


Everything you need to know about the rule of law in Poland


The Court of Justice of the EU found inadmissible referrals for preliminary rulings submitted by judges Igor Tuleya and Ewa Maciejewska for formal reasons. However, it did emphasize in its ruling that disciplinary repression cannot be applied against judges of national courts in the EU for submitting questions to the CJEU. The Court will shortly assess the model of disciplinary liability for judges in Poland in an infringement proceedings case initiated by the European Commission.

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


Everything you need to know about the rule of law in Poland



March 31, 2020


Supreme CourtDisciplinary ChamberConstitutional Tribunaldisciplinary proceedingsPolandrule of lawZbigniew Ziobrojudicial independenceCourt of Justice of the EUEuropean CommissionNational Council of the JudiciaryjudgesEuropean UnionCourt of JusticeMałgorzata ManowskaAndrzej DudaIgor Tuleyadisciplinary systemCommissioner for Human RightsEuropean Court of Human RightsCJEUMinister of JusticeMateusz MorawieckiJarosław Kaczyńskipresidential electionsjudiciaryAdam Bodnarpreliminary rulingsdemocracyK 3/21muzzle lawHungaryelections 2020Kamil ZaradkiewiczBeata MorawiecFirst President of the Supreme CourtprosecutorsWaldemar Żurekdisciplinary commissionerEuropean Arrest WarrantProsecutor GeneralConstitutionCOVID-19Julia PrzyłębskaPresidentmedia freedomfreedom of expressionCourt of Justice of the European Unioncriminal lawMarek SafjanAleksander StepkowskiOSCEPaweł JuszczyszynNational Public ProsecutorPiotr SchabPrzemysław Radzikcriminal proceedingsPrime Ministerfreedom of assemblyStanisław BiernatExtraordinary Control and Public Affairs ChamberSupreme Administrative Courtconditionality mechanismconditionalityEU budgetCriminal ChamberLaw and JusticeprosecutionNCJMinistry of JusticeNational ProsecutorelectionsWojciech HermelińskiStanisław PiotrowiczAndrzej ZollMałgorzata Gersdorfacting first president of the Supreme CourtOrdo IurisMay 10 2020 electionsBroda and Bojara v Polandmedia independenceAmsterdam District CourtKrzysztof ParchimowiczTHEMISMaciej NawackiEAWmediaimmunityAnna DalkowskaCouncil of Europe2017policeFreedom HouseLech GarlickiEwa ŁętowskaArticle 7Venice CommissionWłodzimierz WróbelPM Mateusz MorawieckiAndrzej StępkaP 7/20Justice FundPiSC-791/19disciplinary liability for judgesNational Electoral CommissionAstradsson v IcelandPiotr PszczółkowskiJarosław WyrembakPegasusGeneral Assembly of the Supreme Court JudgesPresident of PolandPresident of the Republic of PolandJarosław GowinLGBTLGBT ideology free zonesSejmXero Flor w Polsce Sp. z o.o. v. PolandReczkowicz and Others v. PolandIustitiaKrystian MarkiewiczMichał LasotaZuzanna Rudzińska-BluszczSylwia Gregorczyk-AbramdefamationcourtsEwa WrzosekEU law primacyTVPLex Super OmniaAdam TomczyńskiBelgiumNetherlandsBogdan Święczkowskijudcial independencedemocratic backslidingViktor OrbanOLAFdecommunizationNext Generation EUvetoJózef IwulskiLaw on the NCJJustice Defence Committee – KOSrecommendationTeresa Dębowska-RomanowskaKazimierz DziałochaMirosław GranatAdam JamrózStefan JaworskiBiruta Lewaszkiewicz-PetrykowskaWojciech ŁączkowskiHuman Rights CommissionerMarek MazurkiewiczCCBEAndrzej MączyńskiThe Council of Bars and Law Societies of EuropeJanusz NiemcewiczMałgorzata Pyziak- SzafnickaStanisław Rymarpublic opinion pollFerdynand RymarzAndrzej RzeplińskiSupreme Court PresidentJerzy StępieńPiotr TulejaSławomira Wronkowska-JaśkiewiczMirosław WyrzykowskireportBohdan ZdziennickiMarek ZubikDidier ReyndersEuropean ParliamentOKO.pressZiobroMichał LaskowskiMarek PietruszyńskiPiotr Gąciarekhuman rightscorruptionEuropean Association of Judges11 January March in WarsawPaweł FilipekMaciej TaborowskiAdam SynakiewiczBelarusstate of emergencyneo-judgescoronavirusXero Flor v. PolandEU treatiesAgnieszka Niklas-BibikSłupsk Regional CourtMaciej Rutkiewiczresolution of 23 January 2020K 6/21Mirosław WróblewskiCivil ChamberJoanna Misztal-KoneckaLeon Kieresright to protestSławomir JęksaPKWWiktor JoachimkowskiRoman GiertychMariusz Kamińskiinfringment actionsurveillanceEU valuesMichał WośMinistry of FinanceCentral Anti-Corruption BureauENCJJacek SasinErnest Bejdalex NGOThe First President of the Supreme Courtcivil societyMaciej CzajkaRussiaMariusz JałoszewskiIsraelŁukasz Radkeforeign agents lawpolexitNational Recovery PlanK 7/21Dolińska-Ficek and Ozimek v PolandOrganization of Security and Co-operation in EuropeFirst President of the Suprme CourtLGBT free zonesequalityChamber of Extraordinary Verificationhate crimeshate speechcriminal codeGrzęda v PolandŻurek v PolandSobczyńska and Others v PolandRafał Trzaskowskimedia lawPrzemysła RadzikSenateMarcin WarchołElżbieta KarskaMarcin RomanowskiJacek CzaputowiczPrzemysław Czarneklegislative practiceENAZbigniew BoniekOmbudsmanKraśnikNorwayNorwegian fundsNorwegian Ministry of Foreign AffairsMichał WawrykiewiczFree CourtsC-487/19Article 6 ECHRArticle 10 ECHRRegional Court in AmsterdamOpenbaar MinisterieUrsula von der LeyenAK judgmentSimpson judgmentForum Współpracy Sędziówpublic broadcastermutual trustLMIrelandIrena MajcherAmsterdamthe Regional Court in WarsawUnited NationsLeszek MazurMaciej Miterapopulisminterim measuresautocratizationMultiannual Financial Frameworkabortion rulingequal treatmentabortionprotestsfundamental rightsthe NetherlandsDenmarkSwedenFinlandMariusz KrasońCT PresidentGermanyCelmerC354/20 PPUC412/20 PPUAusl 301 AR 104/19Karlsruheact on misdemeanoursCivil Service ActParliamentary Assembly of the Council of EuropeEUWhite Paperlustrationtransitional justice2018Nations in TransitCouncil of the EUmedia taxStanisław Zabłockiadvertising taxmediabezwyboruJacek KurskiKESMAIndex.huTelex.huJelenJózsef SzájerKlubrádióSLAPPLIBE CommitteeStrategic Lawsuits Against Public ParticipationFrans TimmermansGazeta WyborczaUS Department of StatePollitykaBrussels IRome IISwieczkowskiArticle 2Forum shoppingadvocate generalDariusz ZawistowskitransparencyEuropean Economic and Social Committeepress releaseSebastian KaletaRights and Values ProgrammeC-156/21C-157/21C-619/18Marek Piertuszyńskidefamatory statementsWorld Justice Project awardNational Prosecutor’s Officeintimidation of dissentersWojciech SadurskiBogdan ŚwiączkowskiDisicplinary ChamberjudgeTribunal of StatetransferPechOlsztyn courtKochenovPrzemysła CzarnekEvgeni TanchevEducation MinisterFreedom in the WorldKrystyna PawłowiczECJIpsosFrackowiakOlimpia Barańska-Małuszeretirement ageMariusz MuszyńskiAmnesty InternationalHudocŁukasz PiebiakRegional Court in KrakówPiebiak gateKonrad SzymańskiPiotr Bogdanowicztrans-Atlantic valuesPiotr BurasLSOauthoritarian equilibriumlawyersArticle 258Act of 20 December 2019clientelismoligarchic systemRecovery FundEuropean Public Prosecutor's Officerepressive actPolish National FoundationLux VeritatisKoen LenaertsMałgorzata BednarekPiotr WawrzykharrassmentMarian BanaśAlina CzubieniakSupreme Audit OfficeTVNjournalistslexTVNGerard BirgfellerEwa MaciejewskaPolish mediapostal voteKrakówRzeszówDagmara Pawełczyk-Woickaborderpostal vote billprimacy