The requests in joined cases C-558/18 and C-563/18, regarding Poland’s new disciplinary regime for judges, admittedly are worded in a very general way. Moreover, they involve cases which seem to have no connection with EU law: the first one, initiated by a local government, concerns the civil liability of the State Treasury, whereas the second is a classic criminal case against an organized crime group. These issues led to doubts over whether the ECJ can in fact deal with those referrals before providing the courts with an answer.

The proceedings before the EU’s top court involved the Polish State Prosecutor and Commissioner for Human Rights (parties in domestic cases), as well as the European Commission, the EFTA Surveillance Authority, and Poland, Latvia and the Netherlands. Representatives of all but the last two parties were present during the oral phase.

The Court instructed all participants that their submissions must address two issues: the admissibility of questions in light of paragraph 40 of the landmark ASJP judgment (C-64/16), and the standard of disciplinary proceedings under Article 19(1) TEU.

The State Prosecutor, represented by Andrzej Reczka, claimed that the questions are inadmissible because they involve an abstract examination of Polish law under a concrete preliminary reference procedure. He stated that the answer of the Court, whether positive or negative, would be irrelevant because there is no link between the domestic cases and EU law. Reczka said that should the ECJ accept these questions, it would enable all national courts to submit referrals regardless of the nature of domestic cases.

With regard to the second issue – the disciplinary system for judges in Poland – Reczka claimed that it satisfies all criteria enshrined in EU law, quoting LM (C-216/18 PPU), as well as those of the Council of Europe (see Volkov v. Ukraine).

He said that the role of the Minister of Justice is limited to initiating disciplinary proceedings, and thus the government has no influence on the final verdict. He added that the new Disciplinary Chamber of the Supreme Court is more independent in comparison to previous schemes, because its judges are prohibited from taking up any additional occupation. Finally, he emphasized that there is no EU-wide standard of disciplinary proceedings, providing a variety of examples from other Member States.

In contrast, the Commissioner for Human Rights, represented by Maciej Taborowski and Mirosław Wróblewski, argued that the questions are admissible. Their claim rests on the fact that Article 19(1) has been in force since 2009, thus the previous case law, including Faciolia (C-286/88), is not relevant. Taborowski emphasized that the referrals are linked to EU law because the requesting courts must be able to issue judgments “as independent bodies”.

He explained that in ASJP the Court said that the sufficient link to EU law, with regard to structural problems of the judiciary, is that the requesting court can potentially apply Union law. As a result, the protection referred to in Article 19(1)(2) TEU cannot be divisible or fragmentary, and should be provided immediately after a Member State chooses this court to operate as a “court” within the meaning of EU law. Otherwise, the executive would be able to initiate disciplinary proceedings with regard to verdicts issued in domestic cases, which may create a chilling effect and negate the court’s independence in equivalent EU-linked cases.

Furthermore, Taborowski stated it would be contrary to the principle of effective judicial protection if it was only possible to dispute the compatibility of the disciplinary regime after a judge had been subjected to disciplinary proceedings, as the Court said in Unibet (C-432/05, paras 62–64).

The second representative of the Polish Commissioner, Mirosław Wróblewski, again declared that the system of disciplinary proceedings against judges does not meet the requirements laid down in Article 19(1)(2) TEU. He said that in order to conduct disciplinary proceedings against a judge, the Minister of Justice (who is also the Prosecutor General) can designate a special disciplinary officer, who can also be a prosecutor. Wróblewski also quoted statements made by the European Commission, which initiated formal pre-litigation procedure with regard to the Disciplinary Chamber.

He added that disciplinary proceedings had in fact been initiated against judges who had submitted the referrals in question, which, he argued, poses a real threat to the preliminary reference dialogue between national courts and the ECJ. In conclusion, Wróblewski said that initiating such proceedings would be in conflict with Article 19(1)(1) TEU, which gives the Court the power to ensure that in the interpretation and application of the Treaties the law is observed.

Waldemar Gontarski, representing the Polish government, reaffirmed the argument that the questions under discussion are hypothetical, quoting Kremzow (C-299/95), and thus the Court is not required to provide an answer. He added that the current government enjoys democratic legitimacy, and thus “reform” of the judiciary is consistent with the expectations of Polish society. Moreover, he blamed the Commission for claiming, in its reasoned proposal for activating Article 7(1) TEU against Poland, that a European standard exists with regard to the composition of national councils for the judiciary.

In Gontarski’s view, the diversity of provisions concerning such bodies does not justify the claim that a uniform standard can be identified. Gontarski also provided the Court with the latest results of surveys which, as he claimed, demonstrate that the new regime of disciplinary proceedings enjoys the approval of Polish citizens.

Finally, he sought for the Court to join the cases with a German preliminary reference, Land Hessen, in which a court also inquired about its independence (C-272/19). Gontarski claimed it would be necessary for the Court in order to compare at least the Polish and German regimes with each other, and establish one uniform standard of judicial independence. Otherwise, the principle of equality of all Member States with regard to treaty obligations would be infringed.

Ingibjörg Ólöf Vilhjálmsdóttir from the EFTA Surveillance Authority agreed with the Commissioner as to the admissibility of the questions. She added that the sum of all disciplinary provisions must be taken into account because it is the cumulative effect that creates a threat to the principle of effective judicial protection and, as a consequence, the rule of law.

The Commission, represented by Katarzyna Herrmann and Hannes Krämer, reiterated that the system of disciplinary proceedings against judges is currently under pre-litigation proceedings and may be subject to review by the Court after the Commission refers its complaint against Poland. Herrmann remarked regretfully that the Commission cannot identify any link to EU law as far as the questions are concerned, which forces the Commission to state that they are inadmissible.

After the parties completed their oral submissions, the justices and Advocate General queried the State Prosecutor about particular provisions that allow the Minister of Justice to interfere in disciplinary proceedings. It seems that the Court will consider the questions admissible, considering its focus on the details of Polish law rather than whether it can deal with them. As far as the issue of admissibility is concerned, the Court seemed to blame the Commission for its reluctance as the referring courts had sufficiently justified the necessity for the answer.

Advocate General Tanchev declared he would announce his opinion on 24 September. The Court’s final judgment is expected in late 2019.