[interview by Anna Wójcik]

On 19 November 2019, the Grand Chamber of the Court of Justice of the European Union will deliver a major judgment on three preliminary questions (C-585/18, C-624/18 and C-625/18) referred by the Labour Law and Social Security Chamber of the Polish Supreme Court.

The questions concern whether the judges adjudicating in the Disciplinary Chamber are independent as understood by EU law, and consequently whether the requirements of the EU principle of effective judicial protection (Article 19 TEU and Article 47 of the Charter of Fundamental Rights of the European Union) have been met in cases with an EU element adjudicated by this Chamber.

The Supreme Court also asked whether, if these standards were not fulfilled, it should disregard national regulations that require cases to be examined by the Disciplinary Chamber. As a result, cases which should be decided by the Disciplinary Chamber may be reviewed by the Labour Law and Social Security Chamber of the Supreme Court.

This judgment may also be of fundamental importance for the status of the Extraordinary Control and Public Affairs Chamber of the Supreme Court and for hundreds of judges appointed by the new National Council of the Judiciary, as well as for judgments they have since handed down.

We asked Maciej Taborowski, Deputy Commissioner for Human Rights and adjunct at the University of Warsaw Faculty of Law and Administration, as well as member of the Programme Council of the Osiatyński Archive, to explain the significance of the ruling to be handed down by the Court of Justice of the European Union on 19 November.

Anna Wójcik: On 19 November the EU Court of Justice will deliver a judgment on three joined questions referred by the Labour Law and Social Security Chamber of the Supreme Court for a preliminary ruling. What exactly is the Supreme Court asking the CJEU about?

Maciej Taborowski: Two of the questions are related to actions brought by Supreme Court judges seeking to determine whether, despite a law obliging them to retire in conjunction with the lowered retirement age (65 years), they are still Supreme Court judges.

The third question relates to the case of a judge from the Supreme Administrative Court who appealed against a resolution of the new National Council of the Judiciary (NCJ). The negative opinion expressed in the resolution by the “neo” NCJ regarding the judge remaining in his post meant that he was unable to adjudicate cases.

The amended Supreme Court Act assumes that these cases should be reviewed by the newly established Disciplinary Chamber in the Supreme Court, with the participation of the neo-KRS. However, these cases were brought before another chamber of the Supreme Court – the Labour Law and Social Security Chamber – because of doubts related, on the one hand, to the fact that Disciplinary Chamber was not at the time staffed, which is now a historical issue, although in my opinion not devoid of legal significance, and, on the other hand, to the independence of judges now sitting in the Disciplinary Chamber.

And now the Supreme Court’s Labour Law and Social Security chamber is asking the CJEU whether the Disciplinary Chamber of Poland’s Supreme Court, within whose framework judges appointed by the new NCJ are adjudicating, meets the requirement of effective judicial protection within the meaning of EU law as referred to in Article 19(1) of the Treaty on European Union and Article 47 of the Charter of Fundamental Rights of the European Union. And if the answer is negative, whether the provisions conferring jurisdiction on it should be omitted.

The determination of the Disciplinary Chamber’s status is directly related to the assessment of whether the impact of the manner in which the new NCJ has been formed on the appointment of judges to the Disciplinary Chamber guarantees that the new judges will be independent from the executive and legislative powers.

What responses to these questions should we expect considering previous rulings by the Court in Luxembourg?

Each of the three cases concern regulation that, in June 2019 in case C-619/18, the Court of Justice found to be incompatible with EU law. This applies both to the lowering of the retirement age to 65 years and to the system under which the President of Poland arbitrarily decided whether judges would remain on the bench after a non-binding opinion was issued by the NCJ. These issues have already been resolved by the CJEU and there is no doubt there. An additional element of the submitted questions may involve confirmation that the regulations concerning justices of the Supreme Court and the Supreme Administrative Court also violated the prohibition on age discrimination in the light of Directive 2000/78.

We should also keep in mind that, following the Commission’s complaint in Case C-619/18 and the injunction issued by the CJEU and subsequent implementation of it by the legislature, all Supreme Court and Supreme Administrative Court judges who so wished were legally reinstated in their posts and their terms in office were deemed to have continued uninterrupted. There is a certain risk here related to the necessity of justifying why the Court of Justice should again respond to the questions referred by the Supreme Court for a preliminary ruling. I see such a justification, but the issue is not clear.

If this first obstacle is overcome, an innovative and key element of the 19.11 judgment will a determination of the extent to which EU law covers the process of appointing judges to national courts – here specifically in the context of the involvement of the new NCJ. We will see whether the CJEU enters this terra incognito.

We already know from CJEU case law that judicial independence must also be guaranteed in the context of the procedure for appointing judges (C-619/18, paragraph 74). The Court of Justice states that these rules must allow for the exclusion of all reasonable doubt as to the independence of courts from external factors and neutrality in respect of the interests at stake. One judgment of the General Court concerning the independence of justices also included a criterion stating the need to ensure that the procedure for nominating judges does not produce the impression that judges are not independent (T-639/16 P); this makes it necessary to check whether a court thus established was appointed in strict compliance with the law. It seems that this criterion, also present in Strasbourg jurisprudence, should serve as the basis for assessing the status of the Disciplinary Chamber and judges appointed to it with the participation of the new NCJ.

As for the status of the NCJ and the Disciplinary Chamber of the Supreme Court, on 27 June the Advocate General of the CJEU, Prof. Evgeni Tanchev, issued an opinion in which he stated that “the Disciplinary Chamber of the Polish Supreme Court does not satisfy the requirements of judicial independence under EU law in light of the role of the legislative authorities in electing the 15 judicial members of the Krajowa Rada Sądownictwa (National Council of the Judiciary, ‘NCJ’) and the role of that body in selecting judges eligible for appointment by the President of the Republic of Poland to the Disciplinary Chamber of the Supreme Court.”

The Tribunal may share this view, but it may also restrict itself to indicating the criterion according to which a final decision will have to be made by the Supreme Court.

What will authorities of the Polish state have to do if, on 19 November, the Court finds as the AG did in his opinion?

If the CJEU agrees with AG Tanchev’s position, it seems that in these particular three cases, the logical consequence will be that the provisions of the Supreme Court Act conferring jurisdiction on the Disciplinary Chamber to review those cases will have to be considered ineffective. Then, the cases will be handled by the Labour Law and Social Security Chamber of the Supreme Court.

However, it should also be said that if the CJEU defines a standard for the procedure for judicial appointments, the NCJ and the Disciplinary Chamber, this judgment will take on a broader dimension. The position taken by the CJEU will also impact the status of the Extraordinary Control and Public Affairs Chamber as well as hundreds of judges in courts throughout Poland who have been nominated or promoted with the participation of the new NCJ. If these criteria are not met, all those judicial appointments may be deemed to have been effected in violation of EU law.

Everything will, of course, depend on the content and scope of the ruling, but if AG Tanchev’s predictions prove correct, we may risk the statement that the Polish judicial system would then be on the verge of a very steep cliff.

Great responsibility will then rest in the hands of court presidents and judges, but above all the legislator, members of the National Council of the Judiciary and other state authorities, for them to react to the CJEU’s verdict as soon as possible.

First of all, the authorities cannot allow rulings to be issued by judges who do not fulfil the criteria of EU law. These criteria will also be linked to the case law of the ECtHR (Strasbourg system) and, indirectly, to our constitutional standard.

Secondly, the entire system of judicial appointments should be brought into line with EU standards as soon as possible. As all judicial appointees in common courts, the Supreme Court and Supreme Administrative can potentially apply EU law, the relevant EU standards for judicial independence must be implemented. Compliance with these standards will therefore have to cover the National Council of the Judiciary, the two new chambers of the Supreme Court, and the judicial appointments and promotions made to date with the participation of the new NCJ.

Thirdly, it is important to establish as soon as possible the status of national court rulings that have already been issued by judges nominated in breach of EU law.

If these three points are not implemented quickly and in accordance with constitutional, European and international standards, the principle of legal certainty and respect for the rights of ordinary citizens who have placed their trust in the Polish judicial system, then the legal system will in all certainty face extreme chaos that will impact citizens.

In responding to a question referred for a preliminary ruling, the Luxembourg Court interprets European law in order to assist justices dealing with a particular national case on the basis of that law. What are the consequences of the judgment of the CJEU for the Polish state authorities?

The interpretation of European law contained in those judgments is binding on all state authorities. As the Supreme Court has held, such a judgment exerts a relative erga omnes effect. Just as all state authorities are bound by a judgment in infringement proceedings brought by the European Commission.

The first difference is that in proceedings under Article 258 of the Treaty on the Functioning of the EU, i.e. actions for infringement of EU law, the Luxembourg Court directly assesses provisions of national law. In a judgment issued in response to a question referred for a preliminary ruling, the CJEU engages in interpretation of EU law, but against the backdrop of a specific legal problem.

The second difference is that if an EU Member State fails to comply with a judgment delivered by the CJEU in a case pending under Article 258, the Court may impose a fine. But where a judgment is issued in response to a question referred for a preliminary ruling, it is not possible to impose a financial penalty on the state for non-compliance.

However, there remains another way of enforcing respect by state authorities for the interpretation of EU law. The European Commission can challenge national legislation that is the subject of a non-executed preliminary ruling under the Article 258 procedure, and ultimately the CJEU can even impose a fine. But this is a quite long road.

In any event, failure to comply with a CJEU preliminary ruling would constitute a flagrant and manifest breach of EU law. It would be a violation of the rule of law as set out in Article 2 TEU, which would certainly lead to a reaction from EU institutions.

What is the significance of the judgments by the Luxembourg Court on preliminary questions concerning elements of “reforms” to the judicial system for other EU Member States?

These judgments are a guide for all EU Member States.

Poland has become a catalyst for developing standards of EU law concerning the independence of the judiciary. Like in a laboratory, the so-called judicial reforms are leading to all mechanisms available in EU law being tested. The European Commission has launched a procedure for political assessment of the rule of law under Article 7 TEU and filed three complaints against Polish law with the Court of Justice; the CJEU has already issued two judgements in which it found those provisions incompatible with EU law, and the third will be announced in 2020.

In addition, Polish courts are referring questions for preliminary rulings in connection with violations of judicial independence. They are inspiring courts in other EU Member States – Hungary, Romania and even Germany – to do the same with respect to the independence of the judiciary in those countries. Seeing what is happening in Poland, observing this judicial dialogue, courts have worked up the courage to pose similar questions. The beginning of this avalanche from a legal point of view came with the now famous judgment of the CJEU in February 2018 concerning judges in Portugal (C-64/16). But the direct inspiration for this was undoubtedly the actions of courageous Polish judges and the European Commission.

I suspect that the judgments by the CJEU in Polish cases will create a common EU standard for minimum guarantees of judicial independence. Of course, each Member State will still be able to organise its judicial system as it wishes. However, the construction of such a system as a whole will have to guarantee the independence of courts and effective judicial protection. The CJEU will not say in its judgments how exactly states are to achieve this, but it will rule whether or not a national system meets European guarantees.

Will the judgments of the Court of Justice of the EU help to better protect the independence of judges?

The judgments by the Luxembourg Court will establish a minimum standard for the protection of judicial independence throughout the European Union, concerning the procedures for the appointment of judges, the retirement age, the mechanisms for extending their length of service and the way in which disciplinary procedures are designed. The CJEU will elaborate on the essence of the protection of the status of judges. All countries will have to comply with this minimum standard, but how they achieve this depends on them.

So the development of such a standard will be beneficial not only for judges and citizens, but also for the democratically elected governments of the EU Member States, which will have a clear target to hit?

The Court of Justice will give the Member States a ready checklist. If an EU country wants to use it, it will know which elements of its judicial system it needs to review. Of course, the judgments of the CJEU only concern selected elements of that system, but these are, as we can see, crucial ones.

Are we thus dealing with a paradoxical success of the ruling party in Poland?

I am convinced that all judgments by the CJEU concerning judicial independence in Poland will find their way into European law textbooks. In this manner, by way of crisis, we are contributing to the development of EU law. Not only in Poland will this historic “experimental” period be recalled in the future.

We are dealing with a crucial moment for the whole system of European Union law, because the Court of Justice of the European Union has entered an area previously unexplored.

That said, when considering the development of the EU legal system, this is not entirely unexpected.

National courts play a key role in the development of European integration. Together with the Court of Justice, they form the integration axis around which the EU’s supranational system is built.

How do rule of law issues, including judicial independence, affect Poland’s position in the European Union?

In its first rulings, the Court of Justice linked the principle of adherence to the rule of law, enshrined in Article 2 of the Treaty on European Union, to the very essence of the Union’s legal and judicial system. The rule of law is enshrined in Article 19(1) TEU, which lays down the principle of effective judicial protection and, within it, the principle of the independence of judges. The CJEU stressed in its ruling on the Supreme Court that it was our voluntary decision to respect these values.

The values set out by Article 2 TEU therefore determine the essence of the supranational organisation that is the European Union. Unfortunately, the conclusion is a sad one: if a country does not respect the value of the rule of law in Article 2 of the TEU and its constituent elements, it cannot participate in transnational European integration. At least until the EU itself changes its nature.

Such a state, although still formally part of the Union, would indeed be “isolated”, would not be able to fully enjoy the rights of an EU Member State, and its citizens would also suffer. The idea of suspending European funds for such countries is a clear illustration of this.

The doubts that courts in other EU Member States, such as Ireland, have expressed about the judicial system in Poland show that Poland is already being treated differently from other EU Member States. This is no cause for rejoicing.

For example, the European Arrest Warrant works automatically in other countries, but in the case of extraditions to Poland, courts in other countries must first decide whether they are extraditing the accused to a country where the courts are “free”.

This lack of trust and the need for verification may with time come to impact other areas of cooperation, such as judicial cooperation in civil matters (e.g. recognition of judgments on payments to enterprises, family matters, etc.), asylum cooperation (the state is not regarded as safe in this respect), and in areas that we are not totally able to predict (e.g. use of European funds, trade, capital flows, provision of services by banks on the European market, etc.).

Have the actions of the Polish government led to Poland falling behind in the process of European integration?

I would put it like this: through the actions of the authorities of our beloved country, we are slowly entering a different sphere – one of states whose judicial systems cannot be trusted by the rest of Europe.

The text is an abridged version of an interview published in Polish at OKO.press.

[translated by Matthew La Fontaine]