Text by Anna Wójcik

Despite the 19 November judgment of the Court of Justice of the European Union, the statement addressing that judgment by the First President of the Supreme Court, and despite the appeal to the country’s authorities by 13 organisations associating lawyers and involved in the defence of the rule of law in Poland to immediately implement the CJEU’s judgment, the National Council of the Judiciary and the Disciplinary Chamber of the Supreme Court continue their activities.

In the opinion of organizations that signed the appeal – including the judges’ associations “Iustitia” and “THEMIS”, prosecutors from “Lex Super Omnia”, the Stefan Batory Foundation, Helsinki Foundation for Human Rights, Free Courts Initiative, Amnesty International Poland, and our Osiatyński Archive – to properly implement the CJEU judgment, a new National Council of the Judiciary (KRS) must be appointed.

The KRS in its current form should suspend its activities in light of the fact that 15 of its judicial members were appointed in violation of EU standards explicitly detailed in the Court of Justice’s judgment. All nomination proceedings conducted by the KRS should be suspended.

In turn, the Disciplinary Chamber of the Supreme Court should suspend all disciplinary proceedings.

KRS in charge of Supreme Court appointments

However, two days after the Court of Justice’s ruling, on November 21st, the National Council of the Judiciary decided to fill vacancies in the Civil and Criminal Chambers of the Supreme Court. Judge Dariusz Pawłyszcze received a recommendation to the Civil Chamber.

On Friday, November 22nd, the KRS will decide on recommendations from the Labour Law and Social Security Chamber. The procedure, which was to be concluded in 2018, was suspended after a scandal erupted in September in the Ministry of Justice.

Disciplinary Chamber punishes Judge Czubieniak

Supreme Court Judge Tomasz Przesławski, President of the Disciplinary Chamber, issued a statement in which he stressed that “the Disciplinary Chamber will continue to perform its responsibilities related to the administration of justice entrusted to it by the constitutional authorities of the Republic of Poland.”

And thus, the Disciplinary Chamber today issued today a final judgment convicting Alina Czubieniak, Judge of the District Court in Gorzów Wielkopolski, for one of her rulings – however, no punishment was imposed. Explanations in the case of Judge Czubieniak have been demanded by various authorities, including – for the first time –the UN Special Rapporteur on the Independence of Judges and Lawyers, Diego García-Sayán.

Disciplinary Chamber President with unique interpretation of CJEU verdict

The statement by President Przesławski also contains a peculiar interpretation of the CJEU ruling. He maintains that the judgment has effect only with respect to the main proceedings conducted by the Labour Law and Social Security Chamber of the Supreme Court in which questions were referred for a preliminary ruling, and thus “invoking decisions contained therein in other court proceedings is invalid.”

In addition, Judge Przesławski invokes the Polish Constitution to emphasize that only the Constitutional Tribunal has the power to interpret provisions of Polish law. He also refers to the ruling of the Constitutional Tribunal chaired by President Julia Przyłebska, which “legalised” the National Council of the Judiciary.

Meanwhile, the CJEU judgment clearly states and reiterates several times that the independence of the judiciary is a matter of European law and therefore falls within the competence of the Luxembourg Court.

See for instance the relevant paragraph 75 that reads:

“The Court has previously held that, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 52 and the case-law cited.”

In paragraph 164, the Grand Chamber elaborates:

“The national court is required to ensure within its jurisdiction the judicial protection for individuals flowing from Article 47 of the Charter and from Article 9(1) of Directive 2000/78, and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.”

The issue of the relation of the CJEU judgment and interpretation of the Polish Constitution is explained by Professor Ewa Łętowska of the Polish Academy of Sciences, a former justice of the Constitutional Tribunal and first ever Commissioner for Human Rights in Poland.

“The ruling of the EU Court of Justice on 19 November 2019 explains what the independence of courts and independence of judges mean. These two terms are used in our Constitution. So, the criteria formulated in this ruling impart meaning to our constitutional provisions which refer to judicial independence.

The CJEU gives meaning to Polish law, which is applied by Polish courts.

Polish courts translate the standards of EU law as determined by the CJEU into what happens in Poland. This was the subject of the CJEU ruling.
The CJEU detailed what criteria must be met by an independent authority and an independent judge. The effect of the CJEU applies to the operation of Polish courts.

Whenever Polish courts find it difficult to address the independence of a Polish authority or the independence of a court, they can refer to the criteria set out in the CJEU judgment. This is where EU law and Polish law come together.

That is why this ruling is so important. It shapes legal thinking on matters of independence. Both of judges and of lawyers who appear before the courts. It should also shape the thinking of those who legislate. It should, but will it? In this, I am unable to give an answer,” Łętowska concludes.

KRS is “satisfied”

The National Judicial Council issued a statement in which it “notes with satisfaction” that the Grand Chamber of the Court of Justice of the EU did not share the position presented in June by the Advocate General of the CJEU, Evgeni Tanchev. The Advocate General stated that the KRS infringed Article 19.1 TEU and Article 47 of the Charter of Fundamental Rights.

The CJEU did not assess the Council of the Judiciary itself, but provided the Labour Law and Social Security Chamber with cross-sectional and detailed criteria for assessing the Disciplinary Chamber, as well as the KRS. In its judgment, the Court of Justice stressed that an assessment of the appointment and functioning of the KRS is a necessary component in assessing the independence of the judges of the Disciplinary Chamber who were appointed on the recommendation of the KRS, and in order to make this assessment, the Labour Law and Social Security Chamber must consider all the information available to it.

The scale and variety of documented reservations concerning the establishment and functioning of the KRS make it likely that the Labour Law and Social Security Chamber will soon determine that the KRS does not guarantee the appointment of an independent court within the meaning of EU law. The First President of the Supreme Court, Małgorzata Gersdorf, announced that the Labour Law and Social Security Chamber would make this assessment without undue delay. She admitted that the CJEU shared the Supreme Court’s reservations regarding the independence of the Disciplinary Chamber and the National Council of the Judiciary. She also appealed to the authorities for a new law on the KRS.

Advocates at CJEU demolish KRS narrative

Further on, the KRS statement maintains that “the Court’s position is consistent with most of the arguments presented by the Council’s attorneys at the oral hearing.”

The above statement is refuted by Sylwia Gregorczyk-Abram and Michał Wawrykiewicz, who represented justices of the Supreme Administrative Court and Supreme Court in the case concerning the CJEU ruling.

Rule of Law in Poland obtained the following statement from Gregorczyk-Abram and Wawrykiewicz:

“The position published today of the new KRS on the EU Court of Justice’s judgment of 19 November 2019 in joined cases C-585/18, C-624/18 and C-625/18 shows that the new KRS fails to understand the CJEU’s ruling, its significance, and its exceptionally groundbreaking nature.

Contrary to the position taken by the new KRS in its statement, the CJEU has very clearly confirmed that it is competent to assess the condition of the independence of the judiciary in a Member State, as this issue is covered by EU law. In its judgment of 19 November, the CJEU reinforced its previous jurisprudence in this matter.

In the course of the proceedings before the CJEU, the new KRS maintained that this issue is not a matter of EU law. Therefore, the claim of the KRS that the CJEU shared the arguments put forward by the KRS in the proceedings is untrue.

Moreover, the CJEU has provided a very clear, unambiguous interpretation of European law, which is its primary task. Within the framework of this interpretation, it has precisely set out the criteria that an independent, impartial court must meet. The Court of Justice made it clear that such an independent court, as defined by European standards, cannot be appointed by a body which is decisively dependent on the executive and legislative powers. And this is precisely the situation of the new KRS.

In the statement by the KRS we read: ‘Although in its ruling the Court [of Justice] states that every political factor involved in the appointment of judges may give rise to doubts and lead to an assessment of whether a court is independent, it also points out that only the totality of factors – with examples given – that may lead to a final conclusion excluding the presence of the attributes of independence and impartiality. Among these factors, [the Court of Justice] mentions the practice of authorities involved in the judicial appointment process. The Council notes that practice is a matter of fact. The nature of practice is that it can change over time. The laws establishing the political system, however, are universal in nature.’

Contrary to the above position of the new KRS, the CJEU did not list in its ruling any ‘accidental’ factors that affect the lack of independence and impartiality of a body participating in the judicial nomination procedure.

On the contrary, the CJEU listed very specific factors, starting with shortening the term of office in contravention of the Constitution, through the politicised selection of new members, the lack of transparency, and the characteristics and actual circumstances of the functioning of the body participating in the judicial nomination procedure.

There is no doubt that the Luxembourg Court has perfectly grasped the essence of the lack of independence of judges appointed under the new system created over the last three years in Poland. By the same token, the CJEU provided all courts in Poland with an unambiguous test for assessing the independence of courts and individual judges.

We are convinced, as lawyers and above all as citizens, that soon, on the basis of the CJEU judgment – the standard of EU law binding in Poland – Polish courts will assess whether a given judge appointed by the new KRS has the right to sit on the bench, or whether a ruling issued by such a judge may be considered binding.

It should be noted that the fact that the Luxembourg Court has interpreted and defined criteria, rather than resolving the question referred for a preliminary ruling, is the most normal practice.

The CJEU has issued an instructional rather than a final judgment, which is less frequently issued by the Court in preliminary ruling cases.
We encourage the members of the new KRS to study the joint position of civil society organisations on the CJEU judgment of 19 November 2019.”

[translated by Matthew La Fontaine]