Deputy Minister of Justice Anna Dalkowska considered that the ruling of the EU Court of Justice of 26 March 2020 is “by every standard favourable to Poland” because it shares the position of the Polish government.

Let us recall that the Grand Chamber ruled that for procedural reasons it could not rule on questions submitted by judges Igor Tuleya and Ewa Maciejewska (we have previously published a more detailed analysis of the judgment and its meaning).

The CJEU judgment is obviously beneficial for the citizens of Poland (particularly judges), as well as other EU Member States, but for completely different reasons than those suggested by the Deputy Minister Dalkowska.

In the explanatory memorandum to that judgment, the CJEU strongly emphasised that Union law obliges the Member States of the EU to protect the independence of the judiciary, and that they must provide adequate guarantees for judges to submit motions for a preliminary ruling.

Following the CJEU’s judgment, the Commissioner for Human Rights of the Republic of Poland dr hab. Adam Bodnar explains that

• The CJEU confirmed that Polish courts could refer questions for a preliminary ruling because they can rule on matters relating to the application or interpretation of Union law;
• national courts have the broadest possible authority to refer questions to the CJEU if they consider it appropriate in the case before them and are free to exercise that power at any stage of proceedings which they consider appropriate;
• The CJEU has made it clear that no provision of national law may prevent a national court from exercising its power to refer a question to the Luxembourg Court for a preliminary ruling;
• The CJEU pointed out that it is not acceptable for national legislation to expose national judges to the risk of disciplinary proceedings against them by submitting questions to the Court;
• The Court of Justice of the EU has recognised itself as having the power to review a national system of disciplinary liability insofar as its functioning may interfere with the powers and guarantees of a judge under Union law (Cf. CJEU judgment of 26 March 2020 in Joined Cases C-558/18 and C-563/18).

CJEU could not answer these questions for procedural reasons

On the basis of criminal cases under consideration, Judges Tuleya and Maciejewska asked the EU Court of Justice whether a system of disciplinary responsibility for judges in which judicial independence will be compromised by judges being afraid of disciplinary responsibility for their rulings is compatible with EU law.

The CJEU ruled that, for procedural reasons, it cannot answer these questions – since it can only answer questions for a preliminary ruling concerning an interpretation of EU law which is necessary for the questioning court to resolve the given case.

Since the questions were posed in criminal matters, there was no “connecting factor in Union law” (EU law does not regulate these issues of criminal law). Moreover, the issue of disciplinary responsibility was not the subject of the cases under consideration, which is why the CJEU considered these questions hypothetical (at the time they were submitted, Judges Tuleya and Maciejewska had not yet been subjected to disciplinary repressions for submitting questions to the CJEU; this only occurred later).

The CJEU is bound by the regulations governing the preliminary ruling procedure. It was therefore obliged to rule that it could not answer these two questions.

CJEU has yet to assess the Polish model of disciplinary responsibility of judges

Minister Dalkowska is incorrect when she suggests that the CJEU has already assessed the system of disciplinary responsibility for judges in Poland. We are only at the beginning of this process – although the reasoning behind the 26 March ruling already reveals that the Grand Chamber is aware and concerned about the situation of judges subjected to harassment via disciplinary proceedings, as well as the threats of even greater repressions under the provisions of the “Muzzle Law.”

This is the assessment that the Court of Justice of the EU will make in the proceedings of the European Commission’s complaint against the model of disciplinary liability for judges in Poland, which in the Commission’s view violates EU law (Case C-791/19). The complaint was filed with the CJEU on 10 October 2019. The Court will assess the model of disciplinary responsibility at the date of the complaint.

In January 2020, the European Commission applied to the CJEU for interim measures in these proceedings, including suspension of the work of the Disciplinary Chamber in the Supreme Court. It is expected that the CJEU will rule on the application of these measures in early April. The CJEU continues to operate during the COVID-19 pandemic*.

A new complaint by the European Commission against the Polish government to the CJEU against the Muzzle Law is also possible.

A series of questions for a preliminary ruling

In addition to reviewing the Commission’s complaint, the Court of Justice will respond to a number of preliminary questions submitted by Polish courts in relation to elements of the judicial “reforms” of the ruling coalition since 2015.

The Luxembourg Court has already delivered a landmark judgment on 19 November 2019 in response to questions from the Supreme Court (Joined Cases C-585/18, C-624/18, C-625/18).

In any event, the CJEU will assess whether those questions as posed can be answered under the preliminary ruling procedure.

Judge Tuleya and Judge Maciejewska submitted their question in an unfortunate manner. However, the CJEU will most likely respond to the remaining questions posed by the Supreme Court, the Supreme Administrative Court and other courts.

The following cases are in the queue for judgment by the CJEU:

• Case C-487/19 – The Supreme Court asks about the status of the Disciplinary Chamber of the Supreme Court and the status of the neo-National Council of the Judiciary against the backdrop of the case of Judge Waldemar Żurek
• Case C-508/19 – The Supreme Court also asks about the status of the Disciplinary Chamber of the Supreme Court – whether a court whose composition includes a person nominated in procedures that infringe the law constitutes a court under European law,
• Case C-824/18 – The Supreme Administrative Court asks about the nomination process to the Supreme Court involving the neo-National Council of the Judiciary,
• Cases C-754, 753, 752, 751, 750, 749, 748/19 The District Court in Warsaw asks about the delegation of a judge to the Ministry of Justice (question submitted by Judge Anna Bator-Ciesielska),
• Case C-55/20 – The Disciplinary Court of the Bar Association in Warsaw asks about the status of the Disciplinary Chamber of the Supreme Court and its understanding of the notion of a court under EU law as it applies to the Disciplinary Court of the Bar.

Additionally, in Case C-132/20, Kamil Zaradkiewicz, a judge of the Civil Chamber of the Supreme Court recommended by the neo-National Council of the Judiciary, asked the CJEU about the status of judges appointed by the State Council in the People’s Republic of Poland. This case, although seemingly unrelated in subject matter to the assessment of elements of the “reform” of the judiciary by the ruling right-wing coalition, may prove to be crucial. It is possible that the CJEU, ruling that it cannot answer the question, will assess the status of the referring court, which is constituted by a person appointed on the recommendation of the neo-National Council of the Judiciary.