The Court of Justice of the European Union (CJEU) has consistently ruled that questions posed by so-called neo-judges of the Supreme Court are inadmissible, as judicial panels involving these judges fail to meet the requirement of an independent tribunal as understood under EU law. This applies both to the Chamber of Extraordinary Control and Public Affairs and to the Civil Chamber.

The CJEU first ruled on this matter in December 2023, deciding not to address a question posed by three neo-judges from the Chamber of Extraordinary Control and Public Affairs, a chamber added to the Supreme Court by the ruling party (PiS). This chamber is composed solely of judges appointed through a flawed procedure, with the involvement of the National Council of the Judiciary, which was reformed in 2017 to be politically controlled.

The CJEU confirmed that it would not respond to a question posed by a panel from the Chamber of Extraordinary Control and Public Affairs in rulings issued on May 15 and 29.

On November 7, the CJEU expanded its jurisprudence by ruling, for the first time, that a question posed by a single-judge panel of the Civil Chamber was inadmissible. The question had been submitted by Tomasz Szanciło.

This was not always the case. In March 2022, the CJEU responded to questions from a single-judge panel of the Supreme Court’s Civil Chamber that included Kamil Zaradkiewicz.

What criteria did the EU court consider?

The procedure for submitting preliminary rulings is one of the fundamental mechanisms in the EU, ensuring dialogue between national courts and the CJEU. Its purpose is to guarantee uniform interpretation of EU law across all member states.

Judges may seek clarification from the CJEU on the interpretation of provisions relevant to a case. However, the CJEU can only respond to questions posed by a body recognized as a court under EU law.

In assessing whether a given body meets these requirements, the CJEU considers the totality of circumstances, such as:

– establishment of the body based on law
– its permanent nature
– the mandatory character of its jurisdiction
– the adversarial nature of the proceedings
– the application of legal provisions
– and independence.

In its judgment of November 7, the CJEU reiterated that the Polish Supreme Court as such meets these requirements. However, it must assess the specific judicial panel posing the question, and in making this evaluation, the circumstances of the judge’s appointment are taken into account.

The CJEU noted that seven judges of the Civil Chamber, including Tomasz Szanciło, were appointed through a procedure identical to that which led to the appointment of judges to the Chamber of Extraordinary Control and Public Affairs. This involved the National Council of the Judiciary, whose members were selected by politicians, despite the annulment of the KRS resolutions concerning judicial appointments by the Supreme Administrative Court.

The CJEU referred to its previous rulings concerning the Chamber of Extraordinary Control and Public Affairs and cited the European Court of Human Rights’ judgment in the case of Advance Pharma v. Poland regarding the neo-judges of the Civil Chamber.

The CJEU emphasized that the flaws in the process leading to Szanciło’s appointment were identical to those affecting the appointment of judges to the Chamber of Extraordinary Control and Public Affairs. These flaws are sufficient to raise well-founded and serious doubts about the independence and impartiality of this judge, regardless of the fact that he was appointed to a chamber that does not share the same characteristics as the Chamber of Extraordinary Control and Public Affairs.

Why is this important?

During the rule of PiS from 2015 to 2023, Polish and other EU judges, including from the Netherlands, referred questions to the CJEU. In response, the CJEU provided criteria for assessing changes to the judiciary, including the process of appointing judges with the involvement of the politically restructured National Council of the Judiciary.

The CJEU rulings provided arguments for Polish judges defending the rule of law, confirming the validity of their criticism. They pointed out that the changes introduced by PiS contradicted EU law.

For instance, in January 2020, three chambers of the Supreme Court, referring to a preliminary ruling from the CJEU, issued the famous resolution establishing the legal principle that the Disciplinary Chamber, added to the Supreme Court, did not meet the constitutional or European standards of an independent court, and its rulings were invalid. Additionally, it was stated that judges of ordinary courts should assess the circumstances surrounding the appointment of judges to whom they assign cases.

The use of the preliminary ruling procedure by neo-judges

Neo-judges appointed through flawed procedures have continued to use the preliminary ruling procedure. The December 2023 CJEU judgment concerning the inadmissibility of questions from the Chamber of Extraordinary Control and Public Affairs did not deter them.

In October, Mariusz Załucki, who was appointed to the Supreme Court in 2022 through a flawed process, directed questions to the CJEU. Załucki, sitting in the Civil Chamber, questioned the independence of Supreme Court judges Piotr Prusinowski and Małgorzata Wąsek-Wiaderek.

He asked the CJEU: “Is a judge who publicly supports proposed reforms of national law, prepared and presented by political representatives, regarding the future regulation of the status of judges appointed with the participation of a judiciary council, whose composition is contested, and the result of which is to remove about three thousand judges from the positions to which they were appointed, in violation of national constitutional law, still considered an independent and impartial judge in a case where he must assess a status that he has repeatedly commented on publicly or in his judgments?”

This concerns the support by judges for the plans to regulate the status of neo-judges, to which Poland is obligated under, among other things, the judgments of the European Court of Human Rights.

In light of the CJEU ruling of November 7, it is highly probable, if not certain, that the CJEU will not respond to Załucki’s question.

What’s next?

The CJEU rulings rejecting questions from the Chamber of Extraordinary Control and the Civil Chamber of the Supreme Court may discourage neo-judges from submitting questions to the CJEU.

The Ministry of Justice, along with a codification commission led by Professor Krystian Markiewicz, the head of the Judges’ Association Iustitia, is working on legislative solutions regarding neo-judges. However, the proposals have not been publicly presented.

The constitutional crisis will continue to deepen until the situation of judges appointed through flawed procedures to the Supreme Court and lower courts is addressed.