Manowska of the Supreme Court is now blocking the execution of the 3rd CJEU ruling. This is how the authority’s nominees are implementing the compromise with the EU
Małgorzata Manowska, acting as the First President of the Supreme Court, does not want to hand over the files of an important case regarding the status of the neo-judges of the Supreme Court to the legal judges of the Supreme Court. This is the third case blocked by Manowska in which the CJEU has issued a ruling
We established that Małgorzata Manowska, a neo-judge of the Supreme Court in the position of First President of the Supreme Court – pictured above – has ‘arrested’ the files that returned from the CJEU. This applies to important questions for preliminary rulings from the legal Labour and Social Insurance Chamber of the Supreme Court. The CJEU issued a ruling in this case in December 2022 and the files returned to the Supreme Court on 18 January 2023. Manowska does not want to forward them to the Labour Chamber, which should now issue its judgment on the basis of the Court’s ruling.
In a way, she is acting in her own case by blocking the release of these files. This is because the preliminary questions apply to whether it can be accepted that neo-judges of the Supreme Court are not judges. Meanwhile, Manowska is also such a defective Supreme Court judge. And although the CJEU refused to answer the preliminary questions – which pleased the neo-judges – it did not ultimately prejudge the matter in their favour. A final judgment needs to be passed by the Labour Chamber. And here, it is not known what the verdict could be.
The president of the Labour and Social Insurance Chamber of the Supreme Court, Piotr Prusinowski, informed the president of the CJEU, Koan Lenaerts, about Manowska’s ‘arrest’ of the files. ‘He should know what is happening in the Supreme Court with the implementation of the CJEU rulings,’ President Prusinowski tells us. And adds: ‘The procedure does not contain institutions of the type: “I’m the First President, I will not give you the files and what are you going to do about it”. In my opinion, what President Manowska is doing is obstructing the administration of justice.’ He believes Manowska could have breached two articles of the Penal Code.
Prusinowski also informed the Prosecutor General and the Ombudsman, as well as the judges who filed the precedent-setting actions, about the ‘arrest of the files’.
This is the third CJEU ruling about the status of neo-judges of the Supreme Court, the implementation of which is being blocked by the acting First President of the Supreme Court, Małgorzata Manowska. So far, the legal Civil Chamber of the Supreme Court has not implemented the CJEU ruling of October 2021, in which the legal judges of the Supreme Court also submitted questions for preliminary rulings. Manowska did not forward the files of that case for several months.
Furthermore, the membership of the bench which is supposed to implement the CJEU judgment was then changed. And now neo-judges (headed by Manowska herself) have the majority in it, and they will be, in a way, judges in their own case and can block the implementation of the EU court’s judgment.
Manowska blocked the transfer of the files on the questions with regard to which the CJEU issued preliminary rulings in March 2022 to the Labour and Social Insurance Chamber in 2022.
This shows how the authority’s nominees in the courts are implementing and will continue to implement the compromise that the PiS government wants to enter into with the European Commission in order to unblock billions of euros for Poland for the National Recovery and Resilience Plan. This is not the first sign that the judges who have agreed to cooperate with the authorities and Minister of Justice Zbigniew Ziobro will not change their hard line in the courts and the repression of independent judges will continue while Ziobro consolidates his influence in the courts.
Who sued the neo-judges of the Supreme Court and what the CJEU ruled
The status of the new judges of the Supreme Court, namely the neo-judges, is being questioned because of their appointment by the illegal and politicized neo-NCJ. As a result, ten precedent-setting lawsuits have been filed with the Labour and Social Insurance Chamber of the Supreme Court to establish whether they are legal judges.
Such lawsuits were filed in 2020, among others, by the head of Iustitia, Krystian Markiewicz, Judges Bartłomiej Starosta and Paweł Juszczyszyn, who are connected with Iustitia, as well as the press officer of the old legal NCJ, Waldemar Żurek. They sued new judges, mainly from the Chambers established by PiS – from the now liquidated Disciplinary Chamber and the Chamber of Extraordinary Control and Public Affairs.
However, the benches of the Labour Chamber did not consider the lawsuits, but instead, on their basis, submitted questions to the CJEU for preliminary rulings in mid-2020. Their objective is to obtain an answer as to whether the Supreme Court can assess the status of new judges on its own. The questions also apply to the Muzzle Act, in which PiS prohibited judges from examining the legality of neo-judges.
Judge Monika Frąckowiak from Poznań, who is also known for defending the rule of law, was the first to file such an action. She sued Jan Majchrowski in 2019, who was then a member of the Disciplinary Chamber. She wanted the acknowledgement that he was not a judge. The bench of the Labour Chamber used this case as a basis for also referring questions to the CJEU for preliminary rulings, in order to assess the status of neo-judges of the Supreme Court.
The Court ruled in the second half of March 2022 that the questions were inadmissible. This is because it acknowledged that the question was asked on the basis of a side-line matter and not the main case (namely the judge’s disciplinary case), in which Frąckowiak is able to raise the question of the status of a neo-judge and the Disciplinary Chamber. Simultaneously, the Court recalled that it had already ruled on the question of the people who are members of the Disciplinary Chamber on 15 July 2021. It had then ruled that its members did not satisfy the criteria of independent judges. That is why the Chamber was liquidated.
In view of the rejection of the preliminary questions posed on the basis of Monika Frąckowiak’s case, the CJEU asked the Labour Chamber whether it was withdrawing similar questions that had been submitted later. But the benches of the Labour Chamber refused to withdraw them, acknowledging that their case was precedent-setting and the CJEU had to rule. And on 22 December 2022, the CJEU issued an order in which it acknowledged that further questions from the Labour Chamber were also inadmissible. In its justification of the ruling, the CJEU mainly repeated the arguments from its judgment in Judge Frąckowiak’s case.
The neo-judges of the Supreme Court and the right wing treated this as good news, claiming that it ends the matter of precedent-setting lawsuits. All the more so that the Labour Chamber itself acknowledged in the preliminary questions that national laws do not allow courts to challenge nominations of judges handed out by President Andrzej Duda.
But this does not mean that the matter has ended and is a foregone conclusion. The Court itself suggests this in its ruling. Why? ‘It arises from the justification of the Court’s ruling, even the one issued in my case in March 2022, that the CJEU already has an extensive amount of case law on this matter [on the status of neo-judges – ed]. And the Supreme Court should take advantage of it when examining lawsuits,’ Judge Monika Frąckowiak from Poznań tells us.
While declaring the preliminary questions to be inadmissible, the Court recalled the judgment of 15 July 2021, in which it was held that the Disciplinary Chamber is not a court. This is because it contains neo-judges of the Supreme Court, who were appointed by the neo-NCJ. The Court also referred to the CJEU’s judgment in October 2021 which was issued in Waldemar Żurek’s case. In that judgment, it challenged the ruling issued by a neo-judge of the Supreme Court from the Chamber of Extraordinary Control and Public Affairs.
Judge Frąckowiak: ‘So the CJEU did not put a stop to the subject of the neo-judges of the Supreme Court. It rejected the questions requesting a preliminary ruling because it is not there to decide on the merits of cases in place of the national courts. The CJEU only gives guidelines to the national courts if it sees differences between EU and national law.’
What should the Labour Chamber do now? Frąckowiak: ‘It should take responsibility and issue its substantive ruling holding that the neo-judges of the Supreme Court are not judges. It should rely on the rulings of the CJEU and the ECtHR, which are clear with respect to neo-judges.
But, in the preliminary questions, did the Labour Chamber itself acknowledge that national laws do not allow for the examination of presidential nominations?’ ‘I wouldn’t draw conclusions from that. The Chamber can judge these lawsuits itself, although it may be more difficult for it to do so now,’ believes Judge Frąckowiak.
The ‘famous’ Schab is starting to take steps. Will he press charges against the Supreme Court judges?
The problem is that both, after the CJEU’s ruling in March 2022 rejecting the first preliminary questions and now after the Court’s ruling in December 2022, Małgorzata Manowska does not want to forward the case files to the Labour Chamber. And this prevents these rulings from being implemented and the Labour Chamber’s benches from issuing rulings.
We asked the Supreme Court’s press office why Manowska is blocking the files. The office responded: ‘The case files are at the disposal of the First President of the Supreme Court. An investigation is in being conducted [by the disciplinary commissioner of the Supreme Court – ed.] to establish whether the Rules of the Supreme Court were breached, resulting in the manipulation of the membership of the benches in these cases [in which preliminary questions were asked – ed.] when the President of the Labour Chamber appointed the benches.’
This reeked of scandal and a so-called set-up. But there is no scandal. As we already wrote while writing about the arrest of Monika Frąckowiak’s case files – after the CJEU issued its ruling in March 2022 – the former president of the Labour Chamber, Józef Iwulski, nominated the members of the benches. He did this during the summer holidays, when the judges are on leave. Furthermore, there are few judges in that Chamber. There are currently 17, including neo-judges, but then there were around 10.
In practice, cases were given to the judges who were available at the time and were not assigned in the order in which they were received. But the cases had to be assigned quickly because they included applications for security, namely for the suspension of neo-judges. However, the benches did not suspend them, but referred questions to the CJEU for preliminary rulings.
The president of the Chamber of Extraordinary Control and Public Affairs, Joanna Lemańska, referred the matter of the appointment of the benches to the disciplinary commissioner of the Supreme Court. She is also a neo-judge and, privately, President Andrzej Duda’s acquaintance.
We established that the ‘famous’ Piotr Schab, known for prosecuting independent judges and for applying official repression, as president of the Warsaw courts, has now started to take action. It is he, as chief disciplinary commissioner nominated by Minister Ziobro, together with his deputies, Przemysław Radzik and Michał Lasota, who is prosecuting judges on trumped-up charges.
President Andrzej Duda also appointed him in 2022 to the post of extraordinary commissioner for Supreme Court judges. Schab started off with an absurd disciplinary allegation against former Supreme Court President Małgorzata Gersdorf for allowing the Supreme Court judges to issue the historic resolution of the full panel in January 2020. It challenged the legality of the neo-NCJ, the Disciplinary Chamber and the neo-judges.
Now, it transpires that Schab is also explaining how the precedent-setting lawsuits in the cases of neo-judges were assigned to judges in the Labour Chamber. Most recently, he was demanding explanations from the former president of the Chamber, Józef Iwulski, and the three then heads of the Chamber’s divisions. He directly asked how the ‘irregularities’ had come about. Does this mean that Schab will also press disciplinary charges in this case?
If this happens, it could help set aside the lawsuits and ultimately block the enforcement of the CJEU rulings. If the disciplinary commissioner decides that alleged irregularities took place, the neo-judges of the Supreme Court who are being sued could make reference to this and demand the termination of the cases on the grounds of the invalidity of the proceedings. So Schab now has a huge amount of power – by initiating disciplinary proceedings he can end the dispute over the neo-judges of the Supreme Court. After all, he himself is also a neo-judge in the Court of Appeal in Warsaw.
‘The alleged irregularities are purely a search for an excuse not to transfer the case files and for the Chamber to be unable to issue its rulings,’ Piotr Prusinowski, the current president of the Labour Chamber tells us. He adds: ‘President Małgorzata Manowska does not have the right of action to raise such allegations. If any of the parties to these cases believe this is the case, they can raise it during the proceedings or file a motion to remove the judges. Whereas nothing of the kind has taken place.’
Prusinowski continues: ‘As president, I am responsible for the work of the Chamber. But this is an unprecedented situation in which another judicial body is illegally preventing me from performing my duties without having the authority to do so.’
Has he therefore filed a notice with the public prosecutor’s office against Manowska? Prusinowski: ‘The Prosecutor General knows what is going on because he is a participant in these cases.’ However, the President of the Labour Chamber believes Manowska’s behaviour could qualify as an act of overstepping her authority under Article 231 of the Penal Code and of exerting an influence with violence on the court’s activities (Article 232 of the Penal Code).
How Manowska blocked the implementation of the CJEU ruling in Żurek’s case
This is not the first time that Małgorzata Manowska has ‘arrested’ files of precedent-setting lawsuits against neo-judges of the Supreme Court in the Supreme Court. There has been an uphill battle over them for several years. This is because the illegal Disciplinary Chamber, the jurisdiction of which – according to the Act on the Supreme Court, which has been repeatedly amended by PiS – included employment cases of Supreme Court judges, wanted to seize the files. But the former president of the Labour Chamber, Józef Iwulski, was consistently refusing to release them.
Małgorzata Manowska first withheld the files relating to an important CJEU ruling from October 2021. The CJEU then answered preliminary questions submitted by legal judges from the old Civil Chamber of the Supreme Court. The questions applied, among other things, to the status of the new judges of the Supreme Court, in particular Aleksander Stępkowski from the Chamber of Extraordinary Control and Public Affairs.
The questions were asked by a seven-member bench of the Supreme Court on the basis of the case of Judge Waldemar Żurek (the former press officer for the legal NCJ, one of the symbols of free courts), who appealed to the Supreme Court against his transfer on disciplinary grounds to another division in the court. The president of the Regional Court in Kraków, Dagmara Pawełczyk-Woicka, a nominee of Minister Ziobro and a member of the new NCJ, did this in 2018.
The CJEU ruled in October 2021 that the transfer of the judge without his consent could be repression and challenged the status of a neo-judge of the Supreme Court.
The files of this case also returned quickly to the Supreme Court, but the CJEU ruling has not been implemented to this day. Małgorzata Manowska first blocked the transfer of the files to the bench in the Civil Chamber. She sent them to the Supreme Court’s Bureau of Studies and Analyses, which is subordinated to her, to issue an opinion on the effects of the CJEU ruling. She did this without the bench’s and the rapporteur’s consent, which constitutes interference with adjudicatory activities.
Then, Joanna Misztal-Konecka (a neo-judge), who was appointed to the post of the new president of the Civil Chamber, changed the bench which is to implement the CJEU judgment. As three of the seven judges who asked the preliminary questions had retired, Misztal-Konecka appointed three neo-judges in their place. She also dismissed the former president of the Civil Chamber, Dariusz Zawistowski, from that bench and assigned a fourth neo-judge in his place.
And so, former ‘commissioner’ of the Supreme Court Kamil Zaradkiewicz (Judge Żurek sued him in the Labour Chamber for declaring him not to be a legal judge) and Małgorzata Manowska, among others, were co-opted to the bench. Therefore, the neo-judges have a majority there and not only will they be judges in their own case, but they can also block the implementation of the CJEU judgment. Even the Supreme Court’s Bureau of Studies and Analyses, which is subordinated to Manowska, criticized such a change in the bench while the case was in progress.
It is unknown if and when the Civil Chamber will deal with the implementation of the CJEU judgment of October 2021. There is a deadlock in the case, with Judge Karol Weitz, the rapporteur in the case, being ‘absent’, according to the Supreme Court’s press office. The next session of the seven-judge bench in the case has been set for 17 March 2023.
Translated by Roman Wojtasz
The article was published in Polish in OKO.press, February 23, 2023.