Commission v Poland – has the revolution already happened?
The CJEU will soon announce its ruling in a controversial case brought by the Commission against Poland. Barbara Grabowska-Moroz provides background and analysis of the impact of the proceedings and the Court of Justice's potential ruling on efforts to stop the backslide of the rule of law in Poland and around Europe.
On 24 June 2019, the Court of Justice of the European Union will announce its ruling on the infringement proceedings against Poland regarding amendments to the law on the Polish Supreme Court. The case deals with lowering the retirement age of Supreme Court judges, which affected almost 30% of them. Prolongation of their tenure required approval from the President of Poland, whose decision was not limited by any clear criteria.
The decision by the Commission to initiate the proceedings was a result, among other things, of strong pressure from Polish citizens protesting to urge the Commission to initiate infringement proceedings and secure the tenure of Supreme Court judges. The case has already found its place in EU law textbooks – an interim measure issued in October 2018 was a revolutionary milestone that put the Court of Justice at the front of the (admittedly not too fast) EU rule of law peloton. The Vice President of the Court ordered the suspension of the provisions of the new law on the Supreme Court concerning lowered retirement age and the “evaluation” procedure conducted by the President.
The CJEU order (upheld by the Grand Chamber in December 2018) set a deadline of one month for the government to present information on how the interim measure was implemented. It was also a time of intense debate not only about how the Court’s decision should be implemented, but also about who has the final say in “reform” of the judiciary in Poland.
The winding road to implementation
The interim measure was announced on 19 October 2019, two days before local elections in Poland. The government, which had promised that it would not listen to any criticism “from the street, nor from abroad”, was forced to declare if it would follow the ruling. This turned up the temperature of an already hot debate about a possible “Polexit” initiated by a motion of the Minister of Justice (acting as the Prosecutor General) submitted to the Constitutional Tribunal to review the constitutionality of Article 267 TFEU, meaning the competence of Polish national courts to refer prejudicial questions to the Court of Justice.
It was suggested that those two points – the decision of the CJEU and the anti-EU motion to the Constitutional Tribunal – led to election results which were unfavourable for the ruling party.
Comments expressed by public officials seemed to suggest that implementation of the CJEU ruling was not an obvious thing. Before the interim measure was actually ordered, minister Gowin suggested that Poland would of course follow the ruling of the CJEU “to the extent that the CJEU has authority”. Such wording suggested a worst-case scenario – a finding by the government that the CJEU had overstepped its powers, after which the ruling would be invalid and the government would not follow it. The same narrative was adopted in March 2016 with reference to a judgement of the Constitutional Tribunal, which the Government refused to publish.
Minister Szczerski criticized the CJEU decision, arguing that law could not apply retroactively, whereas the CJEU ordered restoration of the status of judges from before the contested law entered into force. Finally, the President of Poland argued that “the Court went too far”, because it had ruled in a purely domestic case. He did find, however, that Poland was required to implement the ruling, otherwise draconian financial penalties would be imposed.
In the discussion about how to implement the CJEU decision two approaches were presented. The first one suggested that the interim measure is self-executing and no legislative measures were required in order for the retired Supreme Court judges to return to office. The second one underlined the need of legislative intervention in order to guarantee legal certainty. The non-legislative approach was adopted by the First President of the Supreme Court, who, directly after the order was announced, summoned the judges to whom the new retirement provisions applied (including herself) to “report for work in the Supreme Court in order to perform the duties of a Supreme Court justice”. The same approach was adopted by the Supreme Administrative Court. Direct application of the interim measure was justified by its wording and the nature of interim measures issued by the Court.
When the Supreme Court judges returned to their jobs, the government still argued that as long as the law was not amended, they remain retired. One proposal from among those discussed for implementation suggested that retired Supreme Court judges should follow the existing nomination procedure, which includes evaluation by the National Council of the Judiciary and appointment by the President of Poland.
This would mean that judges would be subjected to the same procedure that was being reviewed under the infringement proceedings before the CJEU, in which the interim measure was adopted. Finally, despite the fact that the interim measure was de facto implemented by the Supreme Court and the Supreme Administrative Court, the government decided to amend the law on the Supreme Court in November 2018. The retirement age was set at 65 years, but it is applicable only to judges appointed after the adoption of those amendments.
Legislative amendments as a tool to avoid CJEU rulings
What was particularly disturbing in the new law was the provision which stated that any judicial proceedings resulting from “evaluation” by the National Council of the Judiciary shall be discontinued. This is relevant for proceedings pending before the Supreme Court initiated by judges who received negative opinions from the National Council of the Judiciary when they applied for prolongation of their tenure as Supreme Court judges.
The Supreme Court decided in those cases to motion for a preliminary ruling to the Court of Justice regarding such issues as the independence of the National Council of the Judiciary and the newly established Disciplinary Chamber of the Supreme Court. The main idea behind introducing this provision was to discontinue cases pending before the Supreme Court, which would also result in withdrawal of preliminary questions from the Court of Justice.
In April 2019 the law was amended again. This time the bill sets out an obligation to discontinue appeal procedures against opinions of the National Council of the Judiciary (refusal to appoint to the position of Supreme Court justice) pending before the Supreme Administrative Court. Why? The official reason is that the Constitutional Tribunal found those procedures in violation of the Constitution (meaning the separation of competences between the common and administrative courts).
In my opinion, however, the amendment results from the fact that the Supreme Administrative Court also referred prejudicial questions to the Court regarding the legality of the National Council of the Judiciary. I think that those two amendments (adopted in November 2018 and April 2019) show how much the government wants to avoid future rulings of the CJEU concerning “reform” of the judiciary in Poland. Furthermore, the legislative activism described above will allow the government to argue that the CJEU cannot rule in those cases because they should be discontinued in light of Polish law.
From a bark beetle to a systemic infringement action
In my opinion, there is no doubt that the Government decided to implement the interim measure in Commission v. Poland because of the decision adopted by the CJEU in the Białowieża Forest case in November 2017, in which the Court admitted the possibility of ordering periodic payments if a party failed to follow an interim measure ordered by the Court.
However, the real possibility of financial sanctions is de facto missing in the rule of law debate against Poland under the Article 7 procedure. The CJEU rulings in ASJP and Białowieża Forest allowed the Court to issue and secure the implementation of an interim measure in Commission v. Poland concerning the retirement age of Supreme Court judges. This represented a truly remarkable development in the judicial protection of rule of law in the Member States.
Meanwhile, a number of prejudicial questions have referred by the Supreme Court to the Court of Justice. They deal with other elements of judiciary “reform” in Poland – independence of the National Council of the Judiciary, legality of the newly established Disciplinary Chamber of the Supreme Court, and new disciplinary frameworks concerning judges. Those issues also became subjects of infringement proceedings initiated in April 2019 by the European Commission against Poland.
This infringement action is of absolutely critical importance to the Polish judiciary considering disciplinary proceedings currently being conducted against judges (and prosecutors). In my opinion, this infringement action creates an opportunity for initiating the first ‘systemic infringement action’ by the Commission regarding the rule of law backsliding in a Member State.
The substantial number of prejudicial questions from the Polish Supreme Court demonstrate how deep judicial trust is in the Court of Justice. Those references show also how complex the issue of ‘judiciary’ reform in Poland is, particularly in the context of EU law and possible future CJEU rulings. It is almost certain that without the CJEU (e.g. the interim measure in Commission v. Poland and ASJP judgement), the situation of the judiciary in Poland would be much worse, or even hopeless.
Unfortunately, the CJEU interim measure did not stop judge S. Zabłocki – a truly totemic figure in the fight for an independent Supreme Court – from taking the decision to retire from the position of Supreme Court justice. In February 2019 he decided that a new executive resolution (rozporządzenie) issued by the President of Poland organising the work of the Supreme Court made it impossible for him to head the Criminal Chamber in the Supreme Court effectively. The executive resolution provided that judges appointed to the Supreme Court by the new National Council of the Judiciary would be allowed to hear and decide cases while preliminary proceedings – questioning the legality of the “reform” – were still pending before the Court of Justice.
Abusive comparativism? Rejected
AG Tanchev stated in his opinion that Poland had violated Article 19(1) TEU by 1) lowering the retirement age of Supreme Court judges, retroactively applied to justice appointed before the amendment was introduced, and by 2) granting the executive (the President of Poland) discretionary power to prolong a justice’s tenure. AG Tanchev did find, however, that the Commission did not present enough arguments to state that Article 47 of the Charter is applicable to the contested provisions.
Both the opinion of AG Tanchev and the Grand Chamber’s order of interim measure rejected arguments presented by the government based on comparisons to regulations in effect in other jurisdictions. At the hearing regarding the interim measure, the government referred to similar provisions in force in other Member States (United Kingdom, France) stating that decisions on extension of the active service of judges are a matter for the government of the Member State. The Court rejected those arguments and held that a Member State “can not rely on the presumed existence of provisions similar to the provisions of national law at issue in order to prove that in the present case the condition relating to fumus boni iuris is not met” (para. 57-58).
In the main proceedings the government invoked “other jurisdictions” arguments mostly when discussing the status of the National Council of the Judiciary, whose composition was changed in March 2018 following amendments to the law which allowed Parliament to appoint new judge-members of the Council, whereas previously the judges were elected by their peers. The government argued that “the reform of the NCJ is marginal to the present case” and that the requirement that judge-members of judiciary councils should be elected by their peers is “not generally accepted in the EU and goes against the regimes of several Member States” and leads to “double standards of judicial independence” (para. 41).
AG Tanchev concurred with the arguments of the Commission that “the regimes of other Member States are not comparable to the situation in Poland, as they operate in a different legal, political and social context, and in any event, this has no bearing on Poland’s failure to fulfil obligations.”
If the CJEU adopts the reasoning of AG Tanchev, the government will most probably try to undermine the CJEU ruling by arguing that it has already been implemented when the law on Supreme Court was amended. The government has already argued that the infringement proceedings should be discontinued because the law on Supreme Court has already been amended. Such a plan of “crisis management” is, of course, politically motivated and does not contribute much to the discussion of the rule of law in the EU.
AG Tanchev found in his opinion that the CJEU judgement in Commission v. Poland “will build on respect for the rule of law in the EU legal system, and provide guidance on what is required in order for it to be protected” (para. 47). The pending infringement proceedings could lead to the statement that arbitrary legislative amendments affecting judicial independence (e.g. principle of irremovability) can be considered a breach of Article 19(1) TEU, but also contradict the rule of law by blurring the separation of powers in a Member State.
In future CJEU case law, a prohibition on legislative arbitrariness regarding the judiciary can be linked with the “non-regression principle” expressed by the EFTA Surveillance Authority at the hearing held in March 2019 concerning an application for preliminary ruling from the Polish Supreme Court (C-522/18). According to this argument, Member States are bound by their own standards of appointing judges and should refrain from deliberate lowering it. Such non-regression could be considered a derivative of the loyal cooperation requirement expressed by the Treaties.
Furthermore, as the Court emphasised in the interim measure decision, “the risk of losing trust in the Polish justice system is not fictitious or hypothetical, but quite real.” While the political discussion in the Council regarding rule of law backsliding in Poland is disappointing, the Court’s rulings can serve as a barometer of a trust in the rule of law in Poland and provide a spark for debate in the Council. Such developments could constitute a true “rule of law judicial revolution” in the EU.
 A similar argument – that interim measures cannot be applicable retroactively – was also raised by the government during the hearing on 16 November 2018 (para. 94). The Polish government also argued that reinstatement of retired judges would be excessively difficult, and such “re-appointed” judges would not enjoy a guarantee of full independence until the final ruling of the CJEU is delivered.
 It entered into force on 1 January 2019.
 According to the Supreme Court Act, a judge who has reached the age of retirement can apply to the President of Poland to prolong his/her tenure for next three years. The law was amended in May 2018 and provided that before taking the decision, the President can ask the National Council of the Judiciary for an opinion about the justice in question. Three judges who received negative opinions decided to submit an appeal to the Supreme Court and challenge those opinions.
 Furthermore, last week the Supreme Court sent a prejudicial question to the CJEU asking whether the appointment of Supreme Court judges by the new National Council of the Judiciary was compatible with EU law.