“Today, Professor Małgorzata Gersdorf, First President of the Supreme Court, decided to present three combined chambers of the Supreme Court – the Civil Chamber, Criminal Chamber, and Labour Law and Social Security Chamber – with a question of law concerning divergent jurisprudence in the Supreme Court,” said Judge Michał Laskowski at a press conference held on 15 January.

The three chambers of the Supreme Court, staffed in the main by judges appointed prior to the “good change” PiS government, have been asked by First President Gersdorf to determine what will happen with the judges recommended by the newly constituted National Council of the Judiciary.

The question concerns judges appointed to common courts, military courts, and the Supreme Court.

The three chambers are to decide whether those justices’ participation in court proceedings constitutes a violation of the provisions of the Polish constitution, the European Convention on Human Rights, the Treaty on European Union, and the EU Charter of Fundamental Rights.

Under Art. 87 of the Supreme Court Act, resolutions adopted by combined chambers automatically acquire the status of legal principle, making it binding on all adjudicating panels of the Supreme Court.

The session is to be held on Thursday, 23 January 2020, at 11:00am, in what represents a rapid reaction by the Supreme Court.

“Considering the general situation, ongoing legislative work, and the pace of work in other chambers, this can hardly be considered unnecessary haste. This is an extraordinary situation. In the face of constant questions from common courts, divergent jurisprudence, and the weight of the issue, it is crucial to seek a quick solution, while of course remaining conscious of the weight of the decision,” Laskowski explained.

Divergent jurisprudence between the “old” and “new” chambers

In her justification to the motion, First President Gersdorf reminds that the provisions of the Supreme Court Act allow for a question of law to be posed to any panel of justices with a view to ensuring “consistency of jurisprudence.”

This consistency has gone missing in recent verdicts and resolutions adopted by the particular chambers of the Supreme Court following the 19 November judgement of the EU Court of Justice. The CJEU, responding to a request for a preliminary ruling, instructed the Supreme Court to assess for itself whether the Disciplinary Chamber of the Supreme Court and the newly constituted National Council of the Judiciary are independent entities.

On 5 December, the Labour Law and Social Security Chamber, which posed the question, ruled that they were not. The ruling emphasized that the guidelines for a review of independence as set out by the CJEU verdict are binding on all countries, all courts, all bodies involved in applying the law. Not only on courts referring questions.

But already on 8 January 2020 a resolution to the contrary was passed by a seven-member panel of the Extraordinary Control and Public Affairs Chamber. Only judges appointed by the new National Council of the Judiciary sit in this Chamber.

The Chamber stated that the independence of the Council can be examined only when individual appeals against its resolutions are considered. But this is possible only until the President appoints a judge.

In her application, First President Gersdorf also invoked the famous resolution of the full Disciplinary Chamber of the Supreme Court, itself composed exclusively of “new judges.” On 10 April 2019, the Chamber “legalised” itself in a move to pre-empt the CJEU judgment.

The session on 23 January 2020 is to involve only “old” Supreme Court justices.

“New judges from the Disciplinary and Extraordinary Control Chambers will not be attending for a simple reason. This issue is directly related to their status. Madam First President invokes the time-tested maxim that judges may not rule in their own case,” Michał Lisowski explains.

“An outstanding issue is that of participation in the hearing by the seven new justices adjudicating in the Civil Chamber and their voting in the case,” he added.

Resolve doubts

First President Gersdorf’s decision is good news for defenders of the rule of law, who appealed for putting an end to confusion that followed the CJEU’s November judgment.

At the end of December 2019, legal experts Michał Ziółkowski and Michał Krajewski wrote about the risk of discrepancies in the judgements of individual CJEU chambers.

“In our opinion, the Supreme Court verdict of 5 December 2019 demonstrated the strength of Hercules. But to ensure the legal security of citizens, the Supreme Court should take advantage of its competence to adopt interpretative resolutions. Such a resolution would remove any remaining doubts and indicate the path to be taken by judges in lower instance courts,” the lawyers wrote.

“It could be undertaken on an application by the First President of the Supreme Court (e.g., a panel composed of the combined chambers which have never been the subject of misgivings: the Civil, Criminal, and Labour Law and Social Security chambers),” they suggested.

First President Gersdorf filed precisely this application in the Supreme Court.