In Luxembourg on Tuesday, 14 May another hearing took place regarding requests for preliminary rulings by the Polish Supreme Court to the Court of Justice of the European Union. This time, representatives of the new National Council of the Judiciary – justices Jarosław Dudzicz and Dagmara Pawełczyk-Woicka – were present and spoke at the hearing. Both are presidents of courts nominated by Justice Minister Zbigniew Ziobro.

Although the CJEU had closed proceedings concerning the Supreme Court’s application following a hearing on 19 March, it reopened those proceedings at the request of the KRS. The CJEU agreed to the request of the KRS to present its position to the Court. Those appearing were given more time than usual, granted 25 minutes rather than the standard 10.

The judges from the KRS were faced with the difficult task of demonstrating that the Council and the Supreme Court’s new Disciplinary Chamber are independent from the ruling Law and Justice party (PiS). They claimed that the criticisms levelled against them are “a product of imagination” and “violated the dignity” of the judges appointed to the Supreme Court.

They also referenced the verdict handed down by the Constitutional Tribunal, led by Julia Przyłębska, which ascertained the lawfulness of the way the new KRS was appointed. There were also references to courts in Germany and arguments invoking “thieves in togas.”

Sylwia Gregorczyk-Abram and Michał Wawrykiewicz (presently campaigning for European Parliament with the European Coalition) – attorneys for the Supreme Court and members of the “Free Courts” (Wolne Sądy) association, who participated in the hearing of the KRS by the CJEU, dismiss the arguments presented as simply rehashing things we have already heard.

CJEU could not refuse KRS

“In our view, those who came to represent the KRS didn’t bring anything new to the table. But it’s still a good thing they could state their case. That will prevent people from claiming the CJEU was biased and did not give every side a chance to be heard,” said Gregorczyk-Abram.

The latest hearing means the close of presentations by parties in that case before the Court of Justice. The next step will be the opinion given by CJEU Advocate General Evgeni Tanchev.

This opinion was originally scheduled to be read on 23 May, but the additional hearing meant it had to be rescheduled for 27 June. The Court of Justice’s final judgement will thus be handed down not earlier than July, and not later than after the summer holidays. The vast majority of the CJEU’s judgements concur with the opinions of the Advocates General.

Is the Disciplinary Chamber a proper court?

The applications for a preliminary ruling that are under review are those questions referred to the Court of Justice by the Polish Supreme Court of 30 August and 19 September 2018.

The Supreme Court asked the CJEU to decide if the Disciplinary Chamber of the Supreme Court, which was established in 2018 by the PiS government, is “an independent and autonomous court as defined under the law of the European Union.”

This question related to the status of the new National Council of the Judiciary. The Supreme Court claimed that the Disciplinary Chamber was improperly appointed, owing to the participation of the members-judges of the KRS who were selected in March 2018 by Members of Parliament from PiS and Kukiz’15.

It is the opinion of the Supreme Court judges that the manner in which the KRS was formed “does not provide a guarantee of independence from the legislative and executive powers.”

For the CJEU, the decision as to whether the Council of the Judiciary was in fact politicized will be the key to its ruling on the status of the Disciplinary Chamber. This is why judges from the Court of Justice posed questions about the KRS to participants in the hearing of 19 March 2019. And that is also why they agreed to let the Council present its position on 14 May.

[Translated by Matthew La Fontaine]